Pfennig v the Queen

[1995] HCA 7

HIGH COURT OF AUSTRALIA

MASON CJ, DEANE, DAWSON, TOOHEY AND McHUGH JJ

PFENNIG v THE QUEEN

(1995) 182 CLR 461

17 February 1995

Evidence—Similar facts—Criminal trial—Admissibility—Accused charged with murder of abducted child—Body never found—Circumstantial evidence—Abduction by accused of another child twelve months after alleged abduction—Whether evidence of later abduction admissible.

Orders

Appeal dismissed.

Decisions

MASON CJ, DEANE AND DAWSON JJ This appeal raises questions as to the admissibility of what has been described as propensity or similar fact evidence and the use to which it can be put. There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term "similar fact" evidence is often used in a general but inaccurate sense.

2. The appellant was convicted of the murder of Michael John Finlay Black, aged ten years, at or near the town of Murray Bridge, South Australia, on or about 18 January 1989. Michael Black disappeared, having been last seen at Sturt Reserve on the Murray River that day. His body has not been recovered. An appeal to the Court of Criminal
Appeal of South Australia against conviction was dismissed
unanimously. The case against the appellant was based upon
circumstantial evidence. Part of that case was the proof of circumstances involving the abduction by the appellant of another young boy ("H") about one year later at Port Noarlunga, South Australia. The central question argued in the appeal to this Court from the Court of Criminal Appeal is whether the evidence relating to the H abduction was admissible at the trial.

3. The account of the facts which follows is largely taken from the reasons for judgment of Mohr J in the Court of Criminal Appeal. Such departures as there are from his Honour's statement of the facts are occasioned by reference to the evidence and to our understanding of it.

Michael Black's movements on 18 January 1989

4. Michael left his home in Murray Bridge at about 1.00 p.m. on that day to go fishing. He rode his bicycle. He took with him a fishing rod and canvas bag. He was wearing a red and blue striped cotton knit shirt, shorts, underpants and blue thongs. He did not take swim shorts with him. It is possible, though unlikely, that he was wearing swim shorts as underpants. He had no towel. He was accompanied by the family dog. He arrived at Sturt Reserve between 1.00 p.m. and 1.30 p.m., probably close to 1.30 p.m.

5. Sturt Reserve is on the same side of the Murray River as the town. The Reserve consists of an area of lawn, running down to the bank of the river. There is a large rowing shed, shelter sheds, a
wharf, swings, barbecue facilities and a kiosk which serves refreshments.

6. Michael was seen by various people at Sturt Reserve. No witness spoke of seeing a boy who could have been Michael at the Reserve later than just before 3.00 p.m. on 18 January. The evidence of the witnesses as to time was not precise, a matter to be expected in light of the fact that they were giving evidence at the trial of events which had happened more than three years earlier.

7. Mr Haines, who knew Michael by sight, saw a boy, probably Michael, at 2.25 p.m. This seems to have been the last occasion on which Michael was seen on 18 January. Some witnesses spoke of seeing Michael a few minutes before 3.00 p.m., but on their own admission, and in the opinion of the trial judge, their recollection as to the precise time was vague.

8. The next evidence of Michael's whereabouts relates to Thiele Reserve which is up river and on the other side of the river. Later in the afternoon of 18 January, Michael's bicycle, fishing rod, bag and thongs were found neatly stacked against perma-pine railings at Thiele Reserve. His shirt was found in willows growing on the bank of the river at the upstream end of the Reserve. Nearby was a piece of twine tied to a tree stump. It is possible that Michael's dog had been tied with it. Michael was not seen by anyone at Thiele Reserve.

9. Evidence was given by Byron Drechsler, who was about 15 years old at the time of Michael's disappearance, to the effect that he had at one stage believed that he had seen Michael riding across the bridge away from Sturt Reserve, with his dog and fishing rod, at about 3.10 p.m. on the afternoon of 18 January. However, other evidence clearly established that any sighting of Michael by Drechsler must have been prior to 1.22 p.m. on that day and Dreschler, in the course of his evidence, expressly conceded that his original belief as to time was mistaken.

10. After Michael's disappearance had been notified, an extensive search was made. Police divers carried out an underwater search of the river bottom and banks and found nothing. The divers and the officer in charge testified that there was only a remote possibility that Michael's body was in the river but undiscovered. The evidence was that in a period of 24 years there had been 137 operations conducted to recover bodies from inland waters in South Australia and on only one occasion had there been a failure to discover a body and that was in flood conditions.

11. The evidence was significant because it meant that the jury was entitled to find that Michael's body was not in the river. There was evidence from Dr Manock, a pathologist, that, if a person drowned, the body would sink to the bottom after death and would remain there for two or three days. It would then rise to the surface and float.

12. As well as the river search, an extensive land search was made without success. Apart from the official search, unofficial searches of the river and its banks were made for some time. Some searching continued for a period of three years without success.

13. At the trial, counsel for the appellant conceded that there were only two possible explanations for Michael's disappearance: either that he drowned or that he was abducted. The presence at Thiele Reserve of the bicycle and the other articles associated with Michael indicates that, if Michael drowned, it was at Thiele Reserve. Although his mother gave evidence that he told her that he was going swimming, the evidence points to the inference that he did not swim at the Reserve. He had earlier declined an opportunity to go swimming that day; he disliked swimming alone and he did not swim that day at Sturt Reserve which was one of his favourite swimming spots. There were people at the Reserve, including two boys whom he knew, at the time when he would have arrived there, if he arrived at all. The two boys were fishing at the Reserve yet they did not see him, let alone speak to him. He took no towel; it seems that he did not take his swim shorts and his father testified that Michael did not like Thiele Reserve. He had been forbidden by his parents to ride his bicycle across the bridge. There was evidence that he was a competent swimmer.

The appellant's movements on 17 and 18 January 1989

14. The evidence led by the Crown as to the appellant's movements on 17 and 18 January was not in dispute. According to Mrs Pfennig, who was then living with the appellant but has since been divorced, he left home on 17 January driving his white Kombi van and returned on 20 January. The purpose of the trip was to study physics for his next teaching position. The van was equipped with a television set and radio and sleeping and cooking facilities.

15. One witness, Mr Smart, gave evidence that he spoke to the appellant at about 4.00 p.m. on 17 January. He asked Mr Smart if he knew of any place where it was possible to swim in the nude. Mr Smart gave him directions to Thiele Reserve. Shortly afterwards, the appellant joined two children who were swimming from the wharf at Sturt Reserve. He asked them if there were any interesting places to visit and invited them to join him in the van if they wished to accompany him. They declined his invitation.

16. On the next day, the appellant was seen at Sturt Reserve. Mrs Rooke observed him sitting in his van, watching her and two young children with her. Mr Haines, who saw Michael Black at Sturt Reserve at about 1.55 p.m., saw a man speaking to a boy, in all probability Michael, at about 2.25 p.m. That was the last occasion on which Michael was seen at Sturt Reserve. The description given of the man by Mr Haines was not an accurate description of the appellant and may not have been an accurate description of the clothes he was wearing. Mr Haines said he could not recall seeing any facial hair and he described the man's hair as being a bit longer than short back and sides. The appellant had a moustache and had just had a haircut with the result that, according to his daughter, his hairstyle would have been described as short back and sides. The appellant claimed that he left Sturt Reserve by 2.30 p.m. though he conceded that he left by 2.45 p.m. at the latest.

17. At about 2.45 p.m., Mr Toogood, a council employee, saw an old white Kombi van leaving the Reserve at an unsafe speed travelling
towards the main street of Murray Bridge. Continuing in that direction the van would have crossed a bridge to the south of the river where Thiele Reserve is located. Mr Toogood said that he had earlier seen the same or a similar vehicle travelling in the direction of Sturt Reserve. The trial judge regarded Mr Toogood's evidence as somewhat unsatisfactory and instructed the jury that it would be unsafe to rely on his evidence except to the extent that he testified to seeing an old white Kombi van, whose engine made a typical VW noise, and that the van could have been the appellant's van.

18. Mrs Gould, who then lived in a house overlooking Thiele Reserve, heard a commotion below her house at about 3.00 p.m. to 3.30 p.m. The noise was caused by a vehicle with a loud engine with its wheels spinning in gravel. She heard a dog barking in an excited manner. She gave evidence of an experiment in which she was able to identify more than 12 months later the noise from the appellant's van as being similar to the noise which she heard on the afternoon of 18 January 1989. Michael's dog was seen in the vicinity not long after 3.20 p.m. Michael's belongings had been placed against the perma-pine railings before that time.

19. Mr Jones gave evidence that he went to Thiele Reserve waterskiing on 18 January at 4.00 p.m. or thereabouts. He saw a Kombi van on the opposite side of the road that runs virtually parallel to the river bank. It was parked off the road opposite the boat ramp that he was using, in the vicinity of the place where Michael's bicycle and gear were found. Mr Jones' description of the vehicle fitted the appellant's van. Mr Jones originally gave the date as 17 January. Some question arises about the date on which he went on to Thiele Reserve. If the evidence of the Haebich children and Mr Smart that the appellant was at Sturt Reserve in the afternoon of 17 January is accepted, it seems that Mr Jones visited the Reserve on 18 January, that being a day on which he considered that he was there, if he was mistaken about 17 January. Another witness, Mr Neindorf, saw a white Kombi van in the carpark area of Thiele Reserve on 18 January. But no witness saw a vehicle entering or leaving that Reserve which was likely to have been used by an abductor.

20. Michael was not seen at Sturt Reserve at any time after Mr Toogood saw the white van leave at about 2.45 p.m. This fact is significant as there were people at Sturt Reserve who knew him. Mrs Regnier and Miss Giles, who closed the canteen at 3.00 p.m. or 3.15 p.m. and left the Reserve then, did not see him at that time.

21. There was evidence from the appellant's daughter Petra Pfennig, Nicola Davis and Diane Davis about the appellant's statements to them about his dealings with Michael Black at Sturt Reserve on 18 January. He admitted to them that he had spoken to Michael at the Reserve. He also said that he had patted Michael's dog. Petra Pfennig said that the appellant had told her that he saw Michael twice that day. She said that the appellant told her that Michael was trying to scale a fish with a thong so the appellant lent him a knife to scale the fish and when Michael brought the knife back the appellant asked him to put it in the van. The appellant said that his daughter must have misunderstood him. On the other hand, Nicola Davis said that the appellant told her that he lent Michael a knife to do something with a tangle in his fishing line.

22. It follows that, on the prosecution case, there was evidence that the appellant was at Sturt Reserve when Michael was present, that he was in conversation with Michael who, on one occasion at least, was close to the appellant's van, that he left Sturt Reserve at or about the time when Michael was last seen at the Reserve. And there was evidence from Mrs Gould from which it could be inferred that the appellant's van was at Thiele Reserve after Michael's belongings were placed near the perma-pine railings. The appellant's account of his movements after he left Sturt Reserve was not confirmed by any other evidence.

The H evidence

23. The appellant pleaded guilty in 1990 to having abducted and raped H, a thirteen year old boy, at Port Noarlunga. The appellant denied that he abducted H for the purpose of raping him and there is a question whether the appellant would have released the boy eventually.

24. H gave evidence that he was riding a bicycle past the appellant's white Kombi van at Port Noarlunga at 1.30 p.m. on 30 December 1989, that the appellant inveigled him into entering the van and then closed the sliding door, refusing to allow H to leave. The appellant then brought the bicycle into the van but later left it at the top of a cliff, first wiping it with a cloth. The appellant bound, gagged and blindfolded H and held him as a prisoner in the van and later in the appellant's house. The appellant sexually molested the boy in a variety of ways and subjected him to various indignities. These incidents occurred during the afternoon of the day on which the boy was abducted, the following night and morning. When the appellant was absent at lunchtime that day, the boy managed to escape and telephone his father and the police. The appellant was arrested when he arrived home.

25. The appellant's former wife, Sandra Pfennig, gave evidence that he telephoned her twice after his arrest and said that he wanted a solicitor. In the first conversation at about 1.00 p.m. or a little later, he told her that he had been arrested for kidnapping and sexual assault. In the second conversation at about 5.00 p.m. after she asked why he had done it, he said that he was lonely and that he had been thinking of "it" on and off for the past 12 months. He said that he had just driven around, found somebody and threw "them" into the van.

26. Detective Hirlam gave evidence of the following conversation with the appellant when he was arrested. Hirlam said, "We have had an allegation from a young boy that you brought him here against his will
and tied him up, is that correct?"

"Appellant: How did you know?

Hirlam: He managed to escape while you were gone. Why did you do it?

Appellant: Loneliness. If he is in there, can you release him?

Hirlam: What is your name?

Appellant: Mud.

Hirlam: Did you have any sexual contact with him?

Appellant: Just fondling. I just wanted someone to hug."

The appellant was then arrested.

27. The appellant gave a somewhat different version of this
conversation in his evidence.

The course of the trial

28. The trial judge (Cox J) conducted a lengthy voir dire in
advance of the presentation of the Crown case with a view to determining the admissibility of the H evidence. Ultimately it was agreed by counsel that a decision on that evidence should not be given before the commencement of the trial. Counsel for the appellant indicated that he would be able to cross-examine Crown witnesses without alluding to the H incident. The trial then commenced; the Crown did not open on the similar fact evidence.

29. The trial judge, after hearing the evidence of almost 100 witnesses, heard further submissions on the admissibility of evidence of the H incident. His Honour, while acknowledging the existence of inconsistencies in the evidence of the witnesses, made certain specific findings:

1. Michael Black probably rode across the bridge before going to Sturt Reserve on 18 January. It is very unlikely he went as far as Thiele Reserve. He was at Sturt Reserve by 1.30 p.m. He did not ride his bicycle to Thiele Reserve after that.

2. Toogood saw Michael going to Sturt Reserve. He also saw a white Kombi van on two occasions that afternoon. It was probably the appellant's van that he saw on each occasion.

3. Haines saw Michael at Sturt Reserve about 1.55 p.m. and 2.25 p.m.
The man to whom the boy was speaking at 2.25 p.m. was in all
likelihood the appellant.

4. Bernardi saw the bicycle leaning against the railing near the toilet block at Thiele Reserve before 3.26 p.m. Probably the fishing gear was also there then, and both the bicycle and the gear remained there afterwards.

5. Drowning was not a reasonably possible explanation for Michael's disappearance. The theory encounters a number of improbabilities - that he went to Thiele Reserve despite his known dislike for the place, that he did not observe or speak to the children there whom he knew, that he was not noticed by any of the people there, that he went swimming alone though he had not intended to swim when he set out, and that no body was discovered after a search of the river.

6. The only rational alternative to drowning was abduction, a matter which was conceded by counsel for the appellant. Any abduction was likely to have been for a sexual purpose. And, if he was abducted and sexually assaulted, it must be inferred that he was murdered by the person or persons who abducted him.

The prosecution case was presented on the footing that abduction might have occurred as a result of Michael being lured into the clutches of
his abductor. His Honour's references to abduction are to be understood as including such a situation.

30. His Honour considered that Michael might have been abducted at any one of a number of places but concluded that it was likely that he left Sturt Reserve in a vehicle driven by his abductor, the vehicle being commodious enough to take Michael's bicycle, gear and dog. This conclusion, coupled with the evidence concerning the appellant's presence in Sturt Reserve at the relevant time, including his admissions that he spoke to Michael, and the evidence relating to his van and its movements, provided the foundation for the reception of evidence of the H incident. In other words, the appellant had the opportunity to abduct and murder Michael. The H evidence revealed the appellant's propensity to abduct a young boy for sexual purposes and by means which were likely to have been adopted by the abductor in the present case. On this footing, the trial judge considered that the H evidence was admissible.

31. The trial judge said:

"In my opinion, the evidence of the accused's presence and

behaviour in the area on January 17 and 18 including his dealings with Michael Black on the afternoon of January 18, the opportunity his van gave him to carry out an abduction, the vehicle and dog noises heard coming from Thiele Reserve, and the very unusual nature of the particular crime in question, combine to render the evidence of the (H) abduction admissible in proof of the identity of Michael Black's
abductor. The nature of the crime in this case is of great importance. The more unusual the type of crime, the more difficult it may be to accept mere coincidence as a reasonable explanation. Less additional evidence may be needed in such a case to prove a connexion between the propensity evidence and the alleged instant crime and so

establish overall the requisite high degree of proof."

His Honour later said:

"It would, in my opinion, be an affront to common sense to postulate two persons in Michael Black's vicinity at Murray Bridge, and both almost certainly at Sturt Reserve, about the same time that afternoon, each with a propensity to kidnap and sexually assault young boys and each having the physical means that afternoon of doing so, one of them befriending the boy and lending him a fishing knife and the other within a fairly short space of time but quite independently engaging, presumably, in some kind of pre-abduction dealing with him, however brief, and both leaving Sturt Reserve in separate vehicles at much the
same time."

32. His Honour pointed to the similarities in the pattern of conduct which must have been engaged in by Michael's abductor and by the appellant in the H incident, particularly leaving the victim's belongings in a way that was calculated to lay a false trail and suggest accidental drowning - compare the disposal of HHH's bicycle at Port Noarlunga. However, his Honour noted that the fact that there was no murder in the case of H was an important dissimilarity which would normally tell against the admission of the H evidence. But the inconclusiveness of the evidence as to the appellant's intentions with respect to the ultimate fate of the boy militated against that treatment of it.

33. In the result, his Honour considered that it was a case about improbabilities, sufficiently strong to compel a factual conclusion adverse to the appellant. Further, his Honour thought that the basic similarity of the two crimes, including the appellant's behaviour at Sturt Reserve and the laying of a false trail with the bicycle, gave the two incidents an "underlying unity". Although the evidence was very prejudicial, its probative force was so strong that it should be admitted.

34. His Honour remarked:

"The test of admissibility for propensity evidence is

exceptionally high. It has been said that the trial judge 'must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.'" (1 Hoch v. The
Queen (1988) 165 CLR 292 at 296)
Although his Honour seems to have regarded the question of
admissibility as one governed by the principle applicable to circumstantial evidence, he also applied the principles applicable to propensity or similar fact evidence. Thus, his Honour held that the probative value of the H evidence transcended its prejudicial effect and, to put it another way, its probative force was so strong that it would not be unfair to admit it.

The appellant's evidence at the trial

35. Although the admissibility of the H evidence fell to be determined before the appellant's case was presented, it is convenient to state the effect of the appellant's evidence at the trial as it relates to Michael. The appellant stated that he had driven his Kombi van to Sturt Reserve on 17 January. He said that he first saw the boy who, he acknowledges, must have been Michael fishing near a willow, when he was sitting or leaning against a small retaining wall. The appellant stated that he saw Michael trying to beat a fish to death with a thong. The appellant yelled out, "Hey, haven't you got a knife?". The appellant went to his van, obtained a knife, went over to Michael, showed him how to dispatch the fish and handed over the knife. There was a conversation about bait and the hook size. The conversation, which lasted a matter of minutes, took place at the water's edge where Michael had his gear. The appellant saw a dog there which he identified from photographs as Michael's dog and asked Michael to bring the knife back when he was finished.

36. The appellant then returned to a position in front of the van which was 10 to 15 metres away from the place where the first conversation had taken place. Subsequently, Michael returned the knife within ten minutes and the appellant said, "Just put it back in the van." When Michael came back from the van, he said, "You have got a TV set in there." He went back to the van to see whether the cricket was on television in response to a question from the appellant who asked whether the cricket was on. Shortly after, he returned to the willow where he had been fishing.

37. The appellant said that shortly afterwards he packed up and went into town in the van. The trial judge summarized the appellant's evidence in response to the question whether it was 2.45 p.m. when he left as follows:

"That would be close to the latest time. I believe that I left earlier than that. I now think it was 2.15 to 2.30. I would have left before 2.30. It could have been 2.45, but it is unlikely to have been as late as that. It is unlikely that I left via Sturt Reserve Road but
I can't exclude that."

He denied that he went to Thiele Reserve on 18 January.

The trial judge's summing-up with respect to the H evidence

37A. Cox J clearly instructed the jury on a number of occasions that the H evidence was relevant, at the most, to the question of the abductor's identity and that it could not be used to resolve any doubts they may have had on the question whether there was an abduction at all. His Honour told the jury that, if the Murray Bridge evidence did not satisfy them that Michael Black was abducted and murdered, they must find the appellant not guilty. If, however, they rejected drowning as a reasonable possibility and were satisfied that Michael was abducted and murdered, it would be open for them to take into account the H evidence in deciding whether the Crown had proved that the appellant had committed the abduction and murder. Earlier, the trial judge told the jury that, if Michael was abducted, the most likely motive was a sexual one and, if he was killed afterwards, the likely explanation might be a wish to silence a potential witness.

38. The trial judge stated that the Crown pointed to the unusual type of crime which had been committed - the abduction of a ten year old boy for sexual purposes - and relied on the H evidence as showing that the appellant had a disposition to abduct and sexually assault young boys. This, along with other circumstantial evidence, was relied on to prove that the appellant was the abductor and the murderer. His Honour went on to say that, if he was not, there were two persons in Michael's vicinity at Murray Bridge, both almost certainly at Sturt Reserve, each with a propensity to kidnap and sexually assault young boys and having the physical means that afternoon to do so. According to the Crown, it was an affront to common sense to postulate such a possibility.

39. His Honour referred to the Crown argument that the jury could infer from the H evidence that the appellant intended to kill H because he knew too much and went on to remark that the jury might think that the evidence was inconclusive on that question. His Honour observed that, in that event, there was possibly a very important difference between the H incident and what happened at Murray Bridge and this would require the jury to think very carefully before reaching a conclusion on the question of identity adverse to the appellant.

The admissibility of similar fact evidence

40. The appellant's basic challenges to the reception of the H evidence are that propensity reasoning is an inadequate foundation for its admission and that, even if admission on that footing might be legitimate in some circumstances, no adequate factual foundation was established in the present case. The appellant submits that the trial judge's directions transgressed the general principle that it is not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being trieda (2 Makin v. Attorney-General for New South Wales (1894) AC 57 at 65) . The appellant further submits that there was lacking in the present case that underlying unity between the offences charged and the conduct disclosed by the H evidence which is essential before similar fact evidence amounting to propensity evidence can be admitteda (3 Moorov v. H.M. Advocate (1930) JC 68) . In other words, there was an absence of that striking similarity to which Gibbs CJ referred in Sutton v. The Queena (4 (1984) 152 CLR 528 at 535) when speaking of similar fact evidence adduced to establish identity.

41. Contemporary discussion of the problems attending the reception of similar fact and propensity evidence has its origins in the statements of principles by Lord Herschell LC in Makin v. Attorney-General for New South Wales. Lord Herschell enunciated two relevant principles which have had continuing influence. The first was that the prosecution cannot "adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried"a (5 (1894) AC at 65) . That principle was later described as a "fundamental" principle in the law of evidencea (6 Maxwell v. D.P.P. (1935) AC 309 at 317, 320, and see also Burrows v. The King (1937) 58 CLR 249 at 253 per Latham CJ) .

42. The second principle was that "the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused"a (7 (1894) AC at 65) . It is evident that there was an element of tension between the two principles as thus stated. That tension was partly due to the ambiguity inherent in the use of the word "relevant". The second principle, as expressed by Lord Herschell, seemed to imply that propensity evidence was not as such relevant to the determination of the crime charged, rather that it was relevant to that determination but inadmissible for some overriding policy reason, i.e., that in many cases its prejudicial effect would outweigh its probative force.

Subsequent development of the Makin principles
in the English cases

43. The judgments in succeeding cases suggested that the second principle was directed to justifying the admissibility of similar fact or propensity evidence when it tended to disprove a denial or defence which was otherwise available to the accuseda (8 Thompson v. The King (1918) AC 221), e.g., an alibia (9 ibid) or the absence of guilty intentiona (10 Noor Mohamed v. The King (1949) AC 182 at 191-192) . In Noor Mohamed v. The Kinga (11 ibid. at 191-192, 194), the Judicial Committee of the Privy Council specifically rejected the view which Lord Goddard LCJ had expressed in R. v. Simsa (12 (1946) KB 531) . His Lordship had saida (13 ibid. at 539) :

"If one starts with the assumption that all evidence tending to show a disposition towards a particular crime must be excluded unless justified, then the justification of evidence of this kind is that it tends to rebut a defence otherwise open to the accused; but if one starts with the general proposition that all evidence that is logically probative is admissible unless excluded, then evidence of this kind does not have to seek a justification but is admissible irrespective of the issues raised by the defence, and this we think is
the correct view. It is plainly the sensible view."

44. In Noor Mohamed (14 (1949) AC at 194), Lord du Parcq, speaking for the Judicial Committeea, criticized this statement on the ground that "logically probative" might be understood to include much evidence which is held to be "irrelevant". Just what Lord du Parcq meant by "irrelevant" is not altogether clear. It has been suggested that his Lordship was referring to categories of inadmissible evidence including hearsay and secondary evidence of documentsa (15 Reg. v. Boardman (1975) AC 421 at 449 per Lord Hailsham of St Marylebone) .

45. However, the criticism of the dicta in Sims did not extend to the decision itself which has been generally regarded as correct. In Sims, where a person was charged in one indictment with several offences of sodomy and gross indecency with several men and the evidence of each man was that the accused invited him into his house and there committed the acts charged, the acts in each case bearing a striking similarity to each other, it was held that the evidence of the other acts was admissible in relation to each charge to show the nature of the act done by the accused. That evidence was held to be admissible, not only because the acts bore "a striking similarity" to each othera (16 (1946) KB at 539-540), but also because "(t)he probative force of all the acts together is much greater than one alone"; they showed that the visits to the accused's house were for a
guilty not for an innocent purposea (17 ibid. at 540) . The correctness of the decision in Sims on that footing was accepted in Reg. v. Kilbournea (18 (1973) AC 729) and Reg. v. Boardmana (19 (1975) AC, especially at 444 per Lord Wilberforce) .

46. However, before Boardman was decided, the received doctrine was that mere propensity evidence was inadmissible; to be admitted the evidence must go to something other than disposition. Boardman changed that received doctrine by discarding the earlier approach to admission of similar fact evidence based on identifiable categories. Instead, in Boardman, the House of Lords adopted as the guiding principle to determine the admissibility of similar fact evidence the test whether the prejudice to the accused is outweighed by the probative force of the evidence. In that case, the headmaster of a boarding school for boys was charged with buggery with S, a pupil aged 16, and inciting H, a pupil aged 17, to commit buggery on him. It was held that the evidence of S on the count concerning him was admissible as corroborative evidence in relation to the count concerning H and vice versa. The trial judge, it was held, was entitled to decide that the probative force of the similar fact evidence outweighed its prejudicial effect because there was a striking similarity or underlying unity between the similar fact evidence and the evidence of the acts relevantly charged (20 ibid. at 441, 444, 453, 454, 462) .

47. Lord Cross of Chelsea, who reflected the majority view in Boardman, observed that the reason for the general rule of exclusion in relation to propensity evidence is a (21 ibid. at 456) :

"not that the law regards such evidence as inherently irrelevant but that it is believed that if it were generally admitted jurors would in many cases think that it was more relevant than it was, so that ... its prejudicial effect would outweigh its probative value. Circumstances, however, may arise in which such evidence is so very relevant that to exclude it would be an affront to common sense."

His Lordship went on to saya (22 ibid. at 457) :

"The question must always be whether the similar fact evidence taken together with the other evidence would do no more than raise or strengthen a suspicion that the accused committed the offence with which he is charged or would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it. In the end - although the admissibility of such evidence is a question of law, not of discretion - the question as I see it
must be one of degree."

48. As will appear later in these reasons, the passage just quoted is important and has significance for the question to be decided in the present case.

49. Subsequently, in D.P.P. v. Pa (23 (1991) 2 AC 447), the House of Lords rejected the proposition that "striking similarity" was an essential prerequisite of admissibility of similar fact evidence in all cases, holding that the essential feature of the evidence to be admitted is that its probative force is sufficiently great to make it just to admit despite its prejudicial effecta (24 ibid. at 460-461) . In D.P.P. v. P, the accused was charged with rape and incest against each of his two daughters. The trial judge refused an application that the counts relating to each girl should be tried separately and admitted evidence of an offence against one victim in connection with an alleged offence against another. The House of Lords held that the evidence was properly admitted on the ground that its probative force was so great as to make it just to admit it notwithstanding that it was prejudicial to the accused.

50. Lord Mackay of Clashfern LC (with whom the other Law Lords agreed) rejected thee notion that "striking similarity" is an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another, though his Lordship acknowledged that, in cases of identity, "evidence of a character sufficiently special reasonably to identify the perpetrator is required"a (25 ibid. at 460) .

51. The Lord Chancellor observed (26 ibid) :

"(T)he essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed ... But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it and is not justified in principle."

The Lord Chancellor went on to say (27 ibid. at 461) :

"Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree."

52. The Lord Chancellor regarded the relationship between the evidence relating to one victim and the evidence relating to another victim as critical. In this respect, his Lordship saida (28 ibid. at 462) : "This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle."

53. The exposition of the principles in D.P.P. v. P represents an authoritative statement of the relevant law as it presently stands in England.

New Zealand

54. The approach adopted in D.P.P. v. P has been followed by the New Zealand Court of Appeala (29 Reg. v. Accused (1991) 7 CRNZ 604; Reg. v. McIntosh (1991) 8 CRNZ 514) .

Canada

55. In Reg. v. Morina (30 (1988) 44 CCC (3d) 193 at 217-218), the Supreme Court of Canada adhered to the view that, although evidence of propensity was relevant to establish the commission of a crime, it was inadmissible for that purpose unless it was relevant to an issue apart from its tendency to show propensity and its probative value exceeded its prejudicial effecta. But, in Reg. v. B (CR)a (31 (1990) 55 CCC (3d) 1), the Supreme Court recognized that the general exclusionary rule against the reception of evidence adduced solely to show that the accused is the sort of person likely to have committed an offence is not an absolute. According to McLachlin J (with whom Dickson CJC., Wilson, L'Heureux-Dub and Gonthier JJ agreed)a (32 ibid. at 25) : "Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect ... where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception. The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end of determining whether ... the probative value of the

evidence outweighs its potential prejudice and justifies its
reception."

56. The law in Canada, as thus stateda (33 See also Reg. v. C (MH) (1991) 63 CCC (3d) 385 at 392; Reg. v. B (FF) (1993) 79 CCC (3d) 112), closely resembles the law as expressed subsequently by Lord Mackay of Clashfern LC in D.P.P. v. P and as applied in New Zealand.

The Australian authorities

57. In this Court, in conformity with earlier English authorities, it was accepted that propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged. But it was accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal dispositiona (34 Markby v. The Queen (1978) 140 CLR 108 at 116; Perry v. The Queen (1982) 150 CLR 580 at 609; Sutton v. The Queen (1984) 152 CLR at 533, 545-546, 556-557, 562-563) . It was also accepted that, in order to be admissible, propensity evidence must possess "a strong degree of probative force"a (35 Markby (1978) 140 CLR at 117; Perry (1982) 150 CLR at 586, 589, 604; Sutton (1984) 152 CLR at 533) or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensitya (36 Perry (1982) 150 CLR at 609; Sutton (1984) 152 CLR at 548-549, 559-560, 565; Harriman v. The Queen (1989) 167 CLR 590 at 633) . Very often, propensity evidence is received when there is a striking similarity between different offences or between the evidence of different witnesses a (37 Markby (1978) 140 CLR at 117; Perry (1982) 150 CLR at 603, 607, 610; Sutton (1984) 152 CLR at 535, 549, 559, 566-567) . In particular, it was recognized that the existence of such striking similarity is necessary in cases such as Sutton where the prosecution seeks to lead the evidence on the basis that the similarity between different offences founds a conclusion that they must have been committed by the one person with the consequence that evidence which would be admissible to show that an accused committed one of the offences is admissible to prove that he or she committed another or the others of them.

58. The insistence in some of the judgments of this Court on the need to show that propensity evidence was relevant to "some other issue" as one of the prerequisites of its admissibility so as to prove
the commission of the offences charged contributed to a misunderstanding of the Makin principles and to statements of principles which lacked a clear and coherent theoretical foundation. So much was recognized by Mason CJ, Wilson and Gaudron JJ in Hoch v. The Queena (38 (1988) 165 CLR 292 at 294) where their Honours stated that the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged a (39 ibid. at 295) . Mason CJ, Wilson and Gaudron JJ saida (40 ibid. at 294-295. This passage was subsequently cited by Dawson J in Harriman (1989) 167 CLR at 600) :

"Assuming similar fact evidence to be relevant to some issue in

the trial, the criterion of its admissibility is the strength of its probative force ... That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event
having occurred other than as alleged by the prosecution."

This passage should not be understood as asserting that "striking similarities" or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.

59. An important distinction is to be drawn between cases such as the present case in which the "similar facts" are not in dispute and cases in which such facts are in dispute. Thus, their Honours saida (41 ibid. at 295) :

"Where the happening of the matters said to constitute similar

facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that
issue."

60. Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts chargeda (42 Boardman (1975) AC at 452, 458-459; Sutton (1984) 152 CLR at 556-557; Hoch (1988) 165 CLR at 295) . The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged
in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accuseda (43 Hoch (1988) 165 CLR at 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984) 152 CLR at 564). See also Harriman (1989) 167 CLR at 602) . Here "rational" must be taken to mean "reasonable"a (44 See Peacock v. The King (1911) 13 CLR 619 at 634; Plomp v. The Queen (1963) 110 CLR 234 at 252) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.

61. In our view, the principles stated above which derive from Hoch correctly state the law with respect to the admissibility of similar fact evidence. Those principles have not been disavowed by any subsequent decision of this Court and they were accepted and applied by the trial judge in this very case. The discussion in Hoch was expressed in terms of evidence of similar facts rather than propensity evidence. That was because the evidence in that case lent itself to that classification though, in the light of the possibility of concoction, it was held to be inadmissible.

62. There has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence. The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases. Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connection with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it
is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused. In stating the question in that way, we point out, as Lord Cross of Chelsea suggested in Boardmana (45 (1975) AC at 457), that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred, according to the criminal standard
of proof, that the accused is guilty of the offence charged. Accordingly, the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed.

63. Acceptance of the statement of principles stated above means that striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics. What is more, that approach conforms with the approach that now exists in the United Kingdom, Canada and New Zealand.

64. In Harriman v. The Queena, Dawson J pointed outa (46 (1989) 167
CLR at 597-598) :

"In the past, evidence of a criminal propensity to commit crime

in general, or a particular kind of crime, appears to have been regarded as inadmissible because it was thought to be purely prejudicial, and therefore irrelevant, rather than relevant but excluded because of its prejudicial nature. Upon this basis it was said that it became admissible only if some relevance could be shown
beyond the propensity itself."

His Honour observeda that, although this view had drawn some support from Lord Herschell's statement in Makin, that view had given way in Reg. v. Boardmana to the opinion that Lord Herschell was pointing (47 ibid. at 598-599) : "to the high degree of relevance required to render propensity evidence admissible rather than to the requirement of relevance of a different kind".

That is how Lord Goddard LCJ had stated the law in Simsa when his
Lordship saida (48 (1946) KB at 537) :

"Evidence is not to be excluded merely because it tends to show the accused to be of a bad disposition, but only if it shows nothing
more."

What his Lordship was insisting on was that the evidence of bad disposition should also have some "specific connexion" with the commission of the offence alleged. That is because, as a matter of policy, the courts have taken the view that propensity evidence if it does no more is likely to have a very prejudicial effect and should not be received unless its probative force exceeds that prejudicial effect. So the evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it. However, as we have already said, the criterion of probative force as against prejudicial
effect and thus of admissibility is that deriving from Hoch.

The role of the trial judge in admitting propensity evidence

65. Once that criterion of admissibility is accepted, it is apparent
that the trial judge is required to discharge an important responsibility. That point was made by the Supreme Court of Canada in Reg. v. B (CR)a (49 (1990) 55 CCC (3d) 1) where it was accepted that the process of balancing the probative value of the evidence against its prejudicial effect was a delicate one. But the trial judge, in making that judgment, must recognize that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocencea (50 Sutton (1984) 152 CLR at 564; Hoch (1988) 165 CLR at 296; Harriman (1989) 167 CLR at 602).

The use to which the H evidence was put

66. It is of first importance in the present case to recognize that the trial judge decided to receive the H evidence after conducting a voir dire which led him to conclude that drowning was not a reasonably possible explanation for Michael's disappearance, that the only rational alternative was abduction for a sexual purpose and that, if he was abducted and sexually assaulted, the inference must be that Michael was murdered by his abductor. Later the trial judge carefully instructed the jury that the H evidence was relevant, at the most, to the question of the abductor's identity and that it could not be used to resolve any doubts on the question whether there was an abduction at all. It was only if, on the Murray Bridge evidence, the jury rejected drowning as a reasonable possibility and were satisfied that Michael was abducted and murdered, they could take into account the H evidence in deciding whether the appellant had committed the abduction and murder. His Honour's directions on this point were clear and there was no possibility that the jury could misunderstand them.

The correctness of the trial judge's conclusions on the voir dire

67. The challenge to the trial judge's conclusions on the voir dire rests very largely on the possibility that Michael drowned, though his body was not recovered, and the further possibility that he was abducted or induced to leave the Murray Bridge area for a purpose other than sexual gratification. The prosecution case, which it was clearly open to the jury to accept, was that drowning at Thiele Reserve must be rejected as a reasonable possibility. On the evidence, Michael would not have gone voluntarily to Thiele Reserve; he was forbidden to go there and he did not like the Reserve. Further, if he had gone to Thiele Reserve, he would not have been swimming there. He disliked swimming alone, and Sturt Reserve was one of his favourite swimming spots yet he did not swim there that day. It is very unlikely he would have had a swim in his shorts and it seems he did not take his swim shorts with him. If he did have a swim at Thiele Reserve, he would have joined the children he knew there. If, contrary to all the indications, he went swimming, drowning would be unlikely because he was a competent swimmer. And, apart from the presence of Michael's bicycle and belongings, neatly stacked, contrary to his practice, there is no evidence that he was at that Reserve. No one, including the boys who were fishing and knew him, saw him there. On top of all that, there was the failure to discover his body in the area, despite thorough and extensive searches.

68. Once accidental death is put aside, the evidence points inexorably to abduction as the cause of Michael's disappearance. The presence of the bicycle and the neatly stacked belongings at Thiele Reserve strongly suggest that the bicycle and the belongings were placed there with the intention of laying a false trail in order to create the impression that Michael drowned at Thiele Reserve. In addition, Mrs Gould's evidence of hearing the commotion is quite unexplained except on the hypothesis that Michael was abducted and the commotion was associated with his abduction.

69. The evidence does not suggest that abduction would have taken place for any purpose other than sexual purposes. Kidnapping for the purpose of seeking ransom was not suggested; nor was mindless killing suggested and it exists only as a mere theoretical possibility. Abduction for sexual purposes was the most likely reason for any abduction.

The connection between the H evidence and the offence charged

70. The prosecution case against the appellant based on the Murray Bridge evidence therefore pointed to abduction for sexual purposes. That required the presence in the area of a person of the requisite disposition equipped with the means of effecting an abduction. The appellant was in the area at the relevant time; on the H evidence, he was of the requisite disposition; and he had a van which, on the H evidence (which was not in dispute), was used for just such a purpose on that occasion. More than that, there was evidence that the appellant had spoken to Michael on two occasions, patted his dog at Sturt Reserve, lent him his knife and asked him to put it in the van at Sturt Reserve. And, on the previous day, the appellant had invited two other children to accompany him in the van to visit other places in the vicinity. Furthermore, there was the evidence of his statement to his former wife after he had been arrested by the police in connection with the H abduction that he was lonely and had been thinking of "it" on and off for the past twelve months. In that statement, he said that he had just driven around and picked up somebody and threw "them" into the van. In the context in which that statement was made, the reference to "it" must be understood as a reference to an abduction of a boy for sexual purposes, the abduction being effected by means of the van. The reference to the past 12 months extended to the time when the offence charged was committed. The former wife's evidence, if accepted, established that, at the time when Michael disappeared, the appellant was thinking about abducting a boy for sexual purposes. The H evidence indicated that the appellant was prepared to carry these thoughts into effect when an opportunity arose. The Murray Bridge evidence, if accepted, established that such an opportunity arose on 18 January 1989.

Probative force and prejudicial effect

71. Because propensity evidence may well have a prejudicial effect which is disproportionate to the probative force of that evidence, it is necessary to maintain an insistence on that evidence having a high level or degree of cogency in the circumstances of the particular case. In this context, the reference to prejudicial effect is a reference to the undue impact, adverse to an accused, that the evidence may have on the mind of the jury over and above the impact that it might be expected to have if consideration were confined to its probative force.

72. Propensity evidence (including evidence of bad disposition and prior criminality) has always been treated as evidence which has or is likely to have a prejudicial effect in the sense explained. That is because the ordinary person naturally (a) thinks that a person who has an established propensity whenever opportunity arises has therefore yielded to the propensity in the circumstances of the particular case and (b) may ignore the possibility that persons of like propensity may have done the act complained of. Hence, the necessity to find something in the evidence or in its connection with the events giving rise to the offences charged which endows it with a high level or degree of cogency.

73. Often that high level or degree of cogency is found in the striking similarity, underlying unity or "signature" pattern common to the incidents disclosed by the totality of the evidence. So, in the present case, had the prosecution case been based on direct evidence of abduction of Michael for sexual purposes by means of inveigling him into a van, there would have been, in our view, no doubt about the

admissibility of the H evidence. The pattern of similarity, underlying unity or "signature" common to both incidents would have resulted in such a degree of cogency that the probative force of the H evidence would have outweighed its prejudicial effect, notwithstanding that there was but one other incident of the kind alleged, that it occurred virtually 12 months later and that it did not establish that the appellant intended to kill the boy H.

74. Here, however, because the cause of Michael's disappearance cannot be established by direct evidence, the Crown case lacks direct proof of the details which might otherwise constitute a detailed pattern of striking similarity or underlying unity. What we have is a case of circumstantial evidence, based on the Murray Bridge evidence, leading to an inference that Michael was abducted for sexual purposes and, in the circumstances, that meant that a van of the kind which the appellant drove was an ideal vehicle for the execution of such an enterprise. If that be accepted, as we think it should be accepted, then there is a similarity and unity between the two incidents of
abduction for sexual purposes involving the use of a van. In addition, according to the undisputed evidence of each incident, the appellant was present on each occasion, initiating conversation with the victim in close proximity to his van. The fact that the Murray Bridge evidence as to abduction is circumstantial and inferential rather than direct means that the H evidence lacks some of the cogency that it would have had if the Murray Bridge evidence on the point were direct.

75. Granted the circumstantial evidence in this case falls short of that level of precision, there are other factors present which indicate that the H evidence has very considerable cogency. First, there is the Murray Bridge evidence as to the appellant's presence with his van in Sturt Reserve and his contact with Michael; in other words, there is convincing evidence of opportunity. Then there is Mr Toogood's evidence of a van which could have been the appellant's van travelling at an unsafe speed in the direction of Thiele Reserve at about 2.45 p.m. and the evidence of a commotion at Thiele Reserve. These two pieces of evidence suggest that the opportunity was availed of by someone with a vehicle which could have been the appellant's vehicle, there being no evidence that another vehicle with similar characteristics was in the vicinity at that time. The evidence therefore points to the appellant taking advantage of the opportunity which presented itself.

76. Viewed against that background provided by the Murray Bridge evidence, the H evidence, including the statement made by the appellant to his wife (which was not disputed) after he had been arrested in connection with the H incident, is cogent, circumstantial evidence pointing to the appellant's guilt. The modus operandi disclosed by the H evidence, namely, the inveigling of a child into the van, has its parallel with the two children swimming from the wharf at Thiele Reserve on 17 January and to a lesser extent with the initiation of the conversation and contact with Michael at Sturt Reserve on 18 January. That conversation and contact is given a particular character by the appellant's statement made to his wife after his arrest in connection with the H incident.

77. The sense of that statement, in terms of its bearing upon the offence charged, cannot be fully appreciated unless it is accompanied and explained by the evidence of the H incident. In one sense, that is by the way because it points to an independent ground for receiving that evidence. But it highlights the significance of the H evidence and indicates that it would be an affront to common sense to reject the statement made to the appellant's wife and the evidence of the incident on the basis that it was not admissible.

78. In the context of the Murray Bridge evidence, the H evidence demonstrates not only propensity and criminality but also established the appellant's modus operandi in abducting a young boy for sexual purposes and his acknowledgment that he was thinking about indulging his propensity by recourse to the same modus operandi. The H evidence ties in with the prosecution evidence relating to the appellant's activities in the Murray Bridge area on 17 and 18 January and indicated, if accepted, that he took the initial steps that the H evidence instructs us were the steps that he engaged in when he gave effect to that propensity. Once that evidence is taken into account and once drowning is excluded (as the jury clearly excluded it) as a reasonable possibility, there is no reasonable hypothesis that explains Michael's death in a way other than that contended for by the prosecution. In other words, there is no reasonable view of the
evidence which is consistent with the appellant's innocence.

79. In reaching that conclusion, we have taken account of three matters which have been, or could be, relied upon to sustain a contrary conclusion. First, there is the argument that, as the H incident involved abduction and sexual abuse but not murder, it cannot fall into the category of acceptable propensity or similar fact evidence. The H evidence is equivocal on the score of propensity to
murder. That evidence does not deny the existence of such a propensity. The dropping of the bicycle at the clifftop, after first wiping it with a cloth, may indicate an intention to fabricate an accident. But, in any event, for the reasons already given, the H evidence is cogent and its probative force outweighs its prejudicial effect.

80. The second matter is that the H incident occurred after Michael's disappearance. But it does not matter whether similar facts occurred earlier or latera (51 Thompson v. The Queen (1989) 169 CLR 1). The third matter is the possibility that, despite the trial judge's instruction to the jury against using the H evidence to decide whether Michael drowned or was abducted for sexual purposes, the jury may nonetheless have had regard to that evidence in relation to that issue. For our part, we do not see what ground there is for concluding that the jury failed to give effect to the clear instruction given to them by the trial judge. It may be that the jury was not precluded from having regard to the evidence generally once it was admitted into evidence. But there is no occasion to consider that question.

81. The appeal must be dismissed.

TOOHEY J The appellant was convicted of the murder of Michael Black, aged ten, on about 18 January 1989. His appeal to this Court is from the judgment of the Court of Criminal Appeal of South Australia dismissing his appeal against that conviction.

2. The appeal turns on the admissibility at his trial of evidence of events which took place in December 1989, that is, nearly one year after the date of the alleged murder. Those events, involving a boy of thirteen, led to the appellant's conviction, following pleas of guilty, for the offences of false imprisonment, rape, indecent assault and abduction. For those offences he was sentenced to imprisonment for 15 years, with a non-parole period of 13 years. The events were referred to in the courts below by reference to the name of the boy involved. To preserve his anonymity, I shall refer to those events as the H incident and the evidence relating thereto as the H evidence.

Events at the reserves

3. To understand how and on what basis the H evidence was admitted on the trial of the appellant, it is necessary to refer in some detail to the events of 18 January 1989.

4. Michael Black lived at Murray Bridge, a country town south east of Adelaide. On the day in question he left home at about 1 p.m. to go fishing. He rode his bicycle, taking with him a fishing rod and canvas bag. He was wearing a red and blue striped cotton knit shirt, shorts and blue thongs. He did not carry bathers. He may have been wearing bathers instead of underpants but this is unlikely. He had no towel. He was accompanied by the family dog, a red heeler.

5. At about 1.30 p.m. he arrived at Sturt Reserve. The reserve is on the town side of the Murray River. It is an area of lawn running down to the river bank. There is a large rowing boat shed, shelter sheds, a wharf for pleasure boats, swings, barbecue facilities and a mobile kiosk where light refreshments are sold. Michael was seen by a number of people at Sturt Reserve up until nearly 3 p.m. He was not seen again after 3 p.m. that day; his body has never been found.

6. The story then moves to Thiele Reserve which is up river from Sturt Reserve and on the other side of the river. Later on the afternoon of 18 January Michael's bicycle, fishing rod, bag and thongs were found neatly stacked against some railings at Thiele Reserve. His shirt was found in some willows growing on the bank of the river at the up-stream end of the reserve. Nearby was a piece of twine tied to a tree stump. In his judgment in the Court of Criminal Appeal Mohr J said: "It was assumed that Black's dog had been tied with it." The basis for that assumption is that Michael's father found twine still attached to the dog's collar at about the length the dog would have chewed it through.

7. When Michael did not return home, his father reported the matter to the police. Police divers carried out an extensive underwater search of the river bottom at Thiele Reserve and among the willows growing on the bank at either end of the reserve. A visual search was not possible; the divers operated by touch. The divers gave evidence that there was only a remote possibility they would have failed to find a body. As well, there was evidence that over 24 years there had been 137 police operations to recover dead bodies from inland waters in South Australia and, the present case apart, there was only one occasion when they had failed to recover the body. That occasion was during flood conditions. The jury were entitled to conclude that there was no body to be found in the river and such a conclusion was not seriously challenged. An extensive land search was undertaken and unofficial searches were made of the river and its banks. All to no avail.

8. At his trial the appellant's counsel conceded that there were only two explanations for Michael's disappearance. Either he drowned or he was abducted. Michael's mother, who was separated from his father, said that she spoke to the boy by telephone on the morning of the day he disappeared and that he said he was going swimming. The presence of the bicycle and other items, in particular the shirt in the willows, it was said, pointed to the possibility that Michael had gone for a swim among the willows although a short distance downstream there was a sandy beach. However, there were factors pointing against the likelihood that he went for a swim at Thiele Reserve. No one saw him at the reserve, including two boys known to Michael who were fishing there. Michael's father gave evidence that the boy disliked swimming in underpants although he said, in cross-examination, that if Michael wanted to swim he would if necessary swim in shorts and underpants. If he had been wearing bathers, one would have expected to find his shorts and underpants at the scene. Mr Black also said that his son did not like Thiele Reserve and was unlikely to have gone there.

9. There was a shrimp pot suspended from the willows near where the shirt was found. The defence advanced a theory that Michael may have tried to recover the pot and fallen into the river. The theory did not explain why Michael would have taken off his shirt to recover the pot. More importantly, it did not explain why his body was not found.

10. In these circumstances the Crown invited the jury to conclude that Michael did not drown and that he did not leave Sturt Reserve of his own volition. Such a conclusion would inevitably require a finding that the items found at Thiele Reserve were placed there by Michael's abductor to lay a false trail by creating the impression that Michael had gone to the reserve and had drowned there.

11. Against this background it is necessary to look at the movements of Michael and the appellant at relevant times. The appellant's former wife said that he left home on 17 January, driving his white Kombi van. The van was fitted out with radio and television and had sleeping and cooking facilities. Mr Smart gave evidence that he spoke to the appellant at Sturt Reserve at about 4 p.m. on 17 January. He identified the appellant from photographs and in court. The appellant asked him if there was somewhere he could swim in the nude as he had no bathers. Mr Smart directed him to Thiele Reserve. Shortly after, the appellant joined two children, Christian and Chelsea Haebich, who were swimming from the wharf at Sturt Reserve. He asked them if they knew of any places of interest he could visit. He suggested that if they knew of such places they could accompany him in his van. They did not go to the van. The children identified the man they had spoken to as the appellant in court.

12. On the following day, the day of Michael's disappearance, the appellant was observed at Sturt Reserve by Mrs Rooke who saw him sitting in his van watching her and the two children in her care. By his own account he went to the kiosk where he spoke to some children who were short of money. He offered to make up the shortfall for their purchases. Early that afternoon Michael was served at the kiosk several times by Miss Giles who knew him. The first time was about 2 p.m. She estimated his last visit as close to 3 p.m. But, to some extent, that estimate was based on the first time she saw Michael, which she later said may have been earlier than 2 p.m. Miss Giles said that when she finished work shortly after 3 p.m. she noticed that Michael was no longer at the river. Mrs Regnier was also working at the kiosk that day. She served Michael a packet of crisps at about 2 p.m. At about 2.25 p.m. Mr Haines saw a man speaking to Michael. This was the last firm sighting of Michael (52 There was evidence from Byron Dreschler, who was 15 years of age at the time. At one stage he thought that he had seen Michael riding across the bridge from Sturt Reserve at about 2.10 p.m. on 18 January. There was however other evidence that any such sighting by Dreschler could not have been later than 1.22 p.m. on that day and, in evidence, Dreschler conceded that his earlier belief as to the time he saw Michael must have been mistaken) . Mr Haines described the man as about 5' 10", 5' 11", of light build, clear complexion, dark brown hair and about 40 years of age. He could not recall any facial hair. This description generally fitted the appellant except that he had a neat moustache. Also, it must be said, Mr Haines described the man as neatly dressed, in "normal business trousers and a shirt". Other evidence suggested that the appellant was wearing a dark tracksuit with matching top or jeans. The man seen was not known to Mr Haines who had lived in Murray Bridge for 25 years. At about 2.45 p.m. Mr Toogood, a council employee, saw a white van leaving Sturt Reserve at an unsafe speed and travelling towards the main street of the town. This would have taken the van to a position where it could have crossed a bridge to the south of the river where Thiele Reserve is located.

13. Is there any evidence which places the appellant at Thiele Reserve on the afternoon of 18 January? Mrs Gould lived in a house overlooking the reserve. Between 3 p.m. and 3.30 p.m. she heard a "commotion" coming from the reserve, what sounded like a vehicle with a loud engine with its wheels spinning in gravel, and the sound of a dog barking excitedly. Much later Mrs Gould took part in a police test in which, out of her sight, eight vehicles, including the appellant's, were driven past. The appellant's vehicle was driven past twice. The other vehicles were driven past once. Mrs Gould identified the sound of the appellant's vehicle as similar to that she heard on 18 January. The admissibility of that evidence was challenged but it was admitted by the trial judge. However, he said to the jury:

"I think you might be best advised to put the sound test itself to one side in so far as it purports to identify the sound as very similar to the accused's van. If you think you can rely on Mrs. Gould's memory and description, confine yourselves simply to her description of what she heard on the Wednesday itself, a noisy engine, a sort of rattling chugging noise, with an uneven beat".

Mr Jones gave evidence that he went to Thiele Reserve to go water skiing on 18 January at about 4 p.m. He saw a Kombi van matching the description of the appellant's van on the opposite side of a road running almost parallel to the river bank. It was in the near vicinity of where Michael's bicycle and gear were found. However, the trial judge commented to the jury that his evidence was confused and they might think it better to put the evidence to one side. Another witness, Mr Martin, saw a man at Thiele Reserve at about 4 p.m. on the day in question. He appeared to be a "loner" and was neatly dressed, wearing trousers and a shirt.

14. The appellant's daughter Petra testified that on one occasion the appellant told her he had seen Michael twice on that day and on another occasion he told her that he had loaned the boy a knife to scale a fish. Michael brought back the knife and put it in the van. Dianne Davis, a friend of the appellant, and her sister Nicole gave evidence that as part of a general conversation whilst they were watching a news item on the disappearance of Michael Black, the appellant had mentioned that he had seen and talked to Michael, patted his dog and loaned him a fishing knife to untangle a line.

15. Thus there was evidence that the appellant was at Sturt Reserve at a time when Michael was there, that he spoke to Michael and that he left the reserve at about the time Michael was last seen there. A vehicle, which the jury were entitled to find matched the sound of the appellant's van, was heard at Thiele Reserve shortly after the time when the so-called false trail was laid. The appellant's movements are thereafter unaccounted for by witnesses until he arrived home on 20 January.

The appellant's evidence

16. The appellant gave evidence at his trial. He admitted speaking to Mr Smart at Sturt Reserve on 17 January, though he denied asking about nude swimming or being given directions to Thiele Reserve. He admitted swimming with the Haebich children. He said he spent the night at Sturt Reserve though around midnight there was a disturbance which prompted him to cross to the other side of the river for a time.

17. As to 18 January, the appellant said that he believed he saw Michael Black at Sturt Reserve though he could not be exact about the time. Michael had a large fish which he was beating with a thong. He gave Michael a knife from the van, telling him how to kill the fish. Michael returned the knife. The appellant said: "Just put it back in the van." There was some conversation between them as to whether the television broadcast of cricket had started. He left Sturt Reserve at a time "probably after 2 but before 2.30". He said that he did not go to Thiele Reserve that day or on any other day until an Easter canoe trip with friends, though it was put to him in cross-examination that his former wife gave evidence that they went to Thiele Reserve about a week after 18 January. After he left Sturt Reserve, the appellant said, he stopped at a butcher's shop in the main street. He later drove down a dead end road where he spoke to a farmer. The farmer was not identified or called as a witness. Thereafter he drove to several towns, camping both nights in his van, before returning home on 20 January.

A false trail?

18. The Crown case involved the proposition that whoever abducted Michael Black drove to Thiele Reserve with Michael's belongings (and presumably Michael). Michael's dog was later found running free with twine around its neck. On the case as advanced, the dog may have been taken to Thiele Reserve where it later broke free or the twine found there may have been intended to suggest that the dog had been taken there by Michael. In any event, the proposition necessitated the abductor placing the bicycle, the fishing rod, the haversack and thongs against a wooden fence near the toilet block and taking the boy's shirt (and perhaps the dog) to the river bank.

"Obviously the prejudicial effect of admitting the (H) evidence

would be very considerable. It is only the cogency of the evidence on the issue of the identity of Michael Black's abductor that could justify the Court's receiving it. I consider that its high probative value transcends its prejudicial effect or, to put it another way, that its probative force is so strong that in all the circumstances it
would not be unfair to admit it. I would not exclude it on
discretionary grounds."

53. This last passage indicates that his Honour thought that he had a discretion to exclude the evidence. But it is not clear whether the last sentence in that passage was a new and independent conclusion or whether it was a conclusion drawn from the preceding sentences. If it was a conclusion drawn from the preceding sentences, it was erroneous. If it was such a conclusion, the learned trial judge has regarded the prejudicial effect of the evidence as a matter that goes to the exercise of the discretion to reject evidence that is admissible and not to the condition of its admissibility. I have already referred to the recent cases in this Court that hold that prejudice goes to admissibility. In the context of the present ruling, the importance of the distinction lies in the onus of proof.

54. On reading his Honour's ruling as a whole, I incline to the view that he did see prejudice as going to the issue of discretion and that would mean that his Honour has put the onus on the appellant to justify the exclusion of relevant evidence (195 Reg. v. Kilbourne (1973) AC 729 at 758 per Lord Simon of Glaisdale) . Nevertheless, I do not think that that error, if there be one, affects the admissibility of the evidence. That is because his Honour applied the no rational explanation test as the standard for admitting the evidence. And, as I have indicated, that makes irrelevant the question of weighing probative value against prejudice.

55. There is, however, another reason why in my respectful opinion his Honour's approach must be regarded as erroneous. His Honour took the view that the H evidence could only be used against the appellant if there were anterior findings that Michael Black had been abducted for sexual purposes and then murdered. His Honour directed the jury that they had to be satisfied beyond reasonable doubt about these matters before they could use the H evidence to identify the appellant as the abductor. Consequently, a finding that Michael Black was abducted for sexual purposes was necessary if the appellant was to be identified with the crime and that finding had to be established beyond reasonable doubt to his Honour's satisfaction before the H evidence could be admitted. But with great respect to his Honour, I am unable to accept that, independently of the H evidence, the other evidence established beyond reasonable doubt that Michael Black was abducted for sexual purposes.

56. Although one may speculate that Michael Black must have been abducted for sexual purposes, I do not think that that conclusion rises above surmise or speculation. Without the H evidence, there is no evidence upon which it could be found beyond a reasonable doubt that Michael Black was abducted for sexual purposes. If the appellant had been indicted for sexually assaulting as well as murdering Michael Black and the evidence showed that H had been abducted but not sexually assaulted, I do not see how a jury could be satisfied beyond reasonable doubt that Michael Black had been sexually assaulted. Admittedly, abducting for sexual purposes and sexual assault are two different matters. But in the context of this case it is a distinction without a difference.

57. In my view, however, the learned trial judge took too narrow a view of the use that could be made of the H evidence. I do not think that its use was limited to identifying the accused as the abductor, if there was one. The propensity evidence was also relevant to the question of whether there had been an abduction. The learned trial judge's approach was reminiscent of the approach of the House of Lords in Thompson v. The King and that of Slade J in Straffen. That approach was understandable when the admissibility of evidence disclosing criminal propensity was thought to depend upon categories of exceptions. But the great advance that Boardman made was to reject the category approach. In my opinion, the H evidence, if it was admissible, and I think that it was, was admissible to prove the abduction, the purpose of the abduction and the murder as well as the fact that the appellant was the killer.

The H evidence was admissible

58. The evidence of H and the statement that the appellant made to his then wife were admissible because combined with the other evidence they point irresistibly to the conclusion that the appellant abducted Michael Black and murdered him. There is no rational explanation of the evidence that is consistent with his innocence. Apart from the hypothesis that the appellant abducted and murdered Michael Black, the only arguable hypotheses that are open are that Michael Black drowned or that some other person abducted him and murdered him. When the evidence of H and the appellant's then wife is taken into account, neither hypothesis is a rational possibility.

59. Admittedly, all the circumstances are not known. One of the dangers of circumstantial evidence is that the logical coherence of a theory that fits the known circumstances pulls the mind to conclusions that would never be reached if more circumstances were known. The natural tendency of a tribunal of fact in a circumstantial evidence case is to dismiss as fanciful or speculative alternative theories that require the existence of circumstances in addition to those that are known. In res ipsa loquitur cases, for example, defendants rarely persuade judges or juries that they are not negligent when the cause of the accident is not established. In criminal trials, the tendency to dismiss exculpatory theories as fanciful or speculative is often likely to be present because there would be no case to go to the jury unless there was a theory of the known circumstances that pointed to the accused. For that reason, many counsel, experienced in the conduct of criminal trials, would much prefer to defend a case based on eye-witness evidence than one based on circumstantial evidence. Nevertheless, while I am conscious of these dangers, I think that, once the H evidence is admitted, there is no rational hypothesis on the evidence that is consistent with the appellant's innocence.

60. In my opinion, the known circumstances point to and are consistent with the hypothesis that the appellant invited Michael Black into his van at Sturt Reserve and either at that reserve or after leaving that place abducted him for sexual purposes, planted his bike and other belongings at Thiele Reserve to distract attention from the appellant's association with him at Sturt Reserve, and murdered him. That hypothesis is established beyond reasonable doubt because the only alternative hypotheses cannot be rationally maintained.

61. Michael Black is undoubtedly dead. No sighting of him has occurred since he was seen at Sturt Reserve on the afternoon of 18 January 1989. He was either murdered or he drowned. It is irrational to suppose that he could have met his death in some other way.

62. About 14 January 1989, the appellant left home by himself in his white Kombi van, a vehicle equipped with sleeping and cooking facilities and a television set. He returned home on 20 January. The ostensible purpose of his trip was the study of physics. He was at Sturt Reserve on 17 and 18 January and camped overnight there. He was
present at the reserve on the afternoon that Michael Black disappeared. On his own admission, he spoke to Michael Black at 1.30 p.m. That is within an hour of the last reliable sighting of Michael Black. Whether or not the appellant abducted Michael Black, he must in fact have spoken to him later than 1.30 p.m. The evidence suggests that Michael did not arrive at the reserve much before 1.30 p.m., and
that he did some fishing. According to the appellant (192 The appellant's daughter testified that the appellant had told her that he gave Michael Black a knife to clean a fish.), he lent Michael a knife to kill a fish that Michael had caught. The appellant was also seen to pat Michael's dog. He admitted that Michael Black came to his van and watched television for a short period when he returned the knife. He admitted that he had in his van tape of the same kind that he had used to tie up H at Port Noarlunga.

63. Cox J said that there was no reliable evidence that Michael
Black was seen at Sturt Reserve after about 2.25 p.m. that day (193 There was evidence from one witness that Michael Black was at Sturt Reserve "about 3 o'clock". But Cox J obviously thought that this evidence was unreliable.). His Honour thought that it was likely that the appellant was the person talking to Michael Black at that time. But the evidence does not fit the appellant's description. I would not accept that it was the appellant. Apart from this finding, however, I can see no basis for rejecting his Honour's conclusion concerning the primary facts of the case. He had the advantage of seeing and hearing the witnesses.

64. A van, similar to the appellant's van, was seen being driven away from the direction of Sturt Reserve in a hurry at about 2.45 p.m. The appellant admits that he had left Sturt Reserve by that time. He claimed, however, that he left the reserve between 2.15 p.m. and 2.30 p.m. Nevertheless, given the scope for error in accurately recalling the times of incidents, the close relationship between Michael Black's last sighting at Sturt Reserve, the sighting of a van similar to the appellant's being driven in a hurry at about 2.45 p.m. and the appellant's leaving that reserve at about 2.30 p.m. has probative value.

65. The evidence of H and the appellant's wife established that the appellant had a propensity to abduct young boys from public places for the purpose of imprisoning them and sexually assaulting them. Apart from the present case, that propensity has manifested itself on one occasion only. But the statement to his wife established that the H incident was not a one-off, spur of the moment aberration. It is impossible to believe the appellant's evidence that he had no intention of abducting H when he induced him to enter the van and that the abduction was a spontaneous act. His credibility is such that his claim cannot stand with the evidence of H and his wife. Her evidence established that the propensity of the appellant existed as at January 1989. The modus operandi that the appellant used when he abducted H was to lure him into his Kombi van by falsely telling him that he wanted help to retrieve a set of keys, threaten him and then bind, gag and blindfold him. In addition, when the appellant abducted H, he threatened to hurt him if he tried anything. Later at his home, he threatened to kill or hurt H unless H took off his clothes. There is no reason to suppose that on other occasions he would not use a similar modus operandi if he gave effect to his propensity.

66. On the day prior to Michael Black's disappearance, the appellant spoke to two children whom he did not know and invited them to go with him in his van and show him places of interest. By itself, the invitation excites the suspicion that the motive for the invitation was sexual. The evidence of H and the appellant's wife also makes it
probable that at back of the invitation was a desire by a "lonely" (194 The appellant told his wife that he committed the offence against H because he was lonely.) man to have some form of intimate, almost certainly sexual, contact with the children. It provides a solid ground for thinking that his association with Michael Black on the following day was also driven by a desire for the same form of contact.

67. The probabilities tell heavily against Michael Black going to Thiele Reserve for his own purposes. He did not like the place. He had been forbidden to cross the river, which he would have had to do to get to Thiele Reserve. He did not swim at Sturt Reserve, which was one of his favourite swimming places. He had no towel, nor, so far as is known, did he have a swimming costume. Why then would he leave Sturt Reserve and go to Thiele Reserve to swim? No one saw him there although two boys who were there knew him. If he drowned, he must have done so within a short period of arriving; otherwise they must have seen him.

68. The search evidence makes it highly improbable that Michael Black drowned. If he had drowned, the chance that his body would not have been recovered was very small. In addition, nothing in the evidence suggests that there was any particular danger associated with swimming in the area of the river near where his clothes were found, and he was a competent swimmer. If he went to Thiele Reserve for some purpose of his own, it is most unlikely that he drowned.

69. If Michael Black did not voluntarily go to Thiele Reserve, then the only rational conclusion is that his clothes, bike, rod and dog were taken there by an abductor. The conclusion that he was abducted that day by the appellant and did not drown is strongly confirmed by the evidence of Mrs Gould and the evidence of Mr Bernardi who saw the bike there some time before 3.26 p.m.

70. At about 3.15 p.m. Mrs Gould heard a vehicle arrive at the end of the reserve where the bike and fishing rod were later found. The vehicle stayed for only a short period and its stay was marked by the distressed barking of a dog which continued after the vehicle had departed. That dog was beyond doubt Michael Black's dog. Mrs Gould described the engine of the vehicle as having a "very rowdy sort of chugging engine". The vehicle took off quickly. Fourteen months later she took part in a test at Thiele Reserve to see whether she could identify the accused's vehicle by its noisy engine. Eight vehicles - five sedans, two Kombi vans and a panel van - took part in the test. The appellant's van was used twice in the test. It was the fourth and ninth vehicle tested. On both occasions she said that the noise from the appellant's van was "very similar indeed" to what she heard. She said that another vehicle, probably the panel van, bore a resemblance to what she heard. But she thought that the fourth vehicle was the most likely vehicle.

71. On the day before Michael Black's disappearance, the appellant had been informed that Thiele Reserve was a place where he could swim in the nude. He was given directions as to how to get there. A week later he took his wife and family through Thiele Reserve after a picnic at Sturt Reserve. A conversation with his wife indicated that he had been at Thiele Reserve before and liked it. This evidence makes it probable that he went there to swim on the day before Michael Black disappeared.

72. The probability that the appellant had already been to Thiele Reserve, the fact that his vehicle had admittedly left Sturt Reserve and was being driven in the Murray Bridge area at 3.15 p.m. and the evidence of Mrs Gould make it likely that it was the appellant's vehicle that she heard at Thiele Reserve. Moreover, it appears from the summing up of Cox J. that another witness, Mr Neindorf, saw a white Kombi van in the car park area of Thiele Reserve, and no one recollects any other vehicle entering or leaving the car park before
4.30 p.m. that might have been used to abduct Michael Black. Independently of the propensity evidence, there is a significant probability that the appellant drove to Thiele Reserve about 3.15 p.m., stayed shortly, and left hurriedly in circumstances that caused the distressed barking of Michael Black's dog.

73. Moreover, if the appellant killed Michael Black, he had a compelling motive to plant a false trail at Thiele Reserve to suggest that Michael Black had drowned there. Killers do not usually plant false trails unless they feel it is necessary to do so to distract attention from their association with or opportunity to kill their victims. If Michael Black did not drown, it is likely that his killer had some motive for planting a trail suggesting that he did. Of course, the motive may simply have been to suggest drowning so as to make it unlikely that there would be a hunt for the abductor. But the disappearance from Sturt Reserve would itself have raised the drowning theory. In addition, going to Thiele Reserve to plant a false trail with the bike, dog, clothes and fishing rod posed risks for the abductor. The evidence strongly suggests that Michael Black's dog was tied up at Thiele Reserve before it broke free. Both the place where it was tied up and the place where Michael's clothes were found meant that the abductor had to walk some distance from his or her vehicle. The motive that the appellant had for planting a false trail at Thiele
Reserve was that too many people had or might have seen his association with Michael Black at Sturt Reserve. If he was the abductor, he had a strong motive to fabricate a persuasive case of drowning at a place away from Sturt Reserve, and Thiele Reserve was a swimming place to which he had been directed and where he very probably had been.

74. When all the circumstances including the appellant's propensity are considered, I think that the only rational conclusion is that the appellant abducted Michael Black for sexual purposes and later murdered him. Sexually assaulting young boys is regrettably not unknown in South Australia or elsewhere in this country. But luring boys into vehicles, tying them up, sexually assaulting and keeping them imprisoned is, as Cox J. said, an unusual crime in South Australia or elsewhere in this country. Unless Michael Black drowned, he must have been lured into a vehicle at Sturt Reserve together with his dog, bike and fishing gear, abducted, driven to Thiele Reserve and later murdered. The appellant had the propensity to abduct Michael Black. He had asked two children to travel with him in the van and the terms of his invitation to them suggest that the reasons he gave for making it were false. Given his propensity, it is likely that he was seeking sexual gratification from those children and it is a short step to
conclude that that propensity was excited by his contact and association with a young boy like Michael Black. Furthermore, the appellant was with Michael Black shortly before his disappearance. He was not at Sturt Reserve after Michael Black disappeared.

75. The propensity evidence, the appellant's behaviour at Sturt Reserve, the proximity between the time that he left Sturt Reserve and the time that Michael Black disappeared together with Mrs Gould's evidence establish a convincing case beyond a reasonable doubt that the appellant abducted Michael Black and planted a false trail at Thiele Reserve. If he did that, the conclusion that he also murdered Michael Black is irresistible. I do not think that it is of any importance that he did not murder H. Assuming that he had no intention to murder H, once the conclusion is reached that he abducted Michael Black, no rational conclusion is open other than that he also murdered him.

76. This is not a case where proof of the appellant's propensity did no more than show a mere propensity to commit crimes of a sexual nature. If the evidence had established that Michael Black had gone to Thiele Reserve to swim, the case would have been different. There would have been no false trail, and Mrs Gould's evidence would not have had the same force. But the evidence points to an abduction at Sturt Reserve at a time when the appellant was present, the planting of a false trail at Thiele Reserve and the appellant's presence at Thiele Reserve where Michael Black's belongings were found. In addition, the appellant admits that at Sturt Reserve he spoke to Michael Black at a time shortly before he disappeared. There was, therefore, such a nexus between the other facts in the present case and the manner in which the accused's propensity manifested itself in the H incident that evidence of his propensity had significant probative value. It was so significant that together with the other evidence there was no rational explanation consistent with the innocence of the appellant.

77. Once the propensity evidence is used alternative hypotheses and doubts that one might have about particular segments of the evidence are eliminated. Circumstantial evidence "works by cumulatively, in
geometrical progression, eliminating other possibilities" (195 Reg. v. Kilbourne (1973) AC 729 at 758 per Lord Simon of Glaisdale). Ultimately, the propensity and other evidence in this case combine to cut out all hypotheses other than the hypothesis that the appellant abducted and murdered Michael Black.

78. The combination of that evidence eliminates drowning as a rational possibility. It also eliminates abduction by someone other than the appellant. The circumstances that point to the appellant leave no room for a rational hypothesis that a person other than the appellant was the abductor and murderer. It would be a remarkable coincidence, having regard to the facts that are known and can be reasonably inferred if, in addition to the appellant, there was present at Murray Bridge that day another person who abducted Michael Black and who knew, and had a reason to plant a false trail at, Thiele Reserve. It would be remarkable because that person, like the appellant, would have had a propensity to abduct a young boy, would have used a vehicle with a very rowdy chugging engine with an uneven beat like the appellant's, would have abducted his victim about the time that the appellant left Sturt Reserve and would have selected as his victim a boy that the appellant had associated with not long before. The hypothesis that another person abducted Michael Black is fanciful compared to the hypothesis that the appellant was the abductor.

Miscarriage of justice

79. As I have indicated, the learned trial judge directed the jury to examine the evidence in a framework different from that which I think should have been used. In most cases, that would mean that a new trial would have to be ordered. But in my opinion that order is not required in this case. The directions of his Honour erred in favour of the appellant. Upon the evidence which the jury must have accepted to convict the appellant, no reasonable jury could have failed to convict him if they had been directed in accordance with the principles and the legal framework that I think were the appropriate ones. In those circumstances, the directions of his Honour did not constitute any miscarriage of justice.

Order

80. The appeal should be dismissed.