Pfennig v The Queen

[1994] HCATrans 442

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A9 of 1994

B e t w e e n -

DIETER PFENNIG

Appellant

and

THE QUEEN

Respondent

MASON CJ	DEANE J
DAWSON
TOOHEY J
MCHUGH J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON WEDNESDAY, 24 AUGUST 1994, AT 9.47 AM
(Continued from 23/8/94)
Copyright in the High Court of Australia
Pfennig(2) 23 24/8/94
MASON CJ: Yes, Ms Shaw.
MS SHAW:  May it please the Court, I propose to complete my

references to the Canadian decisions. In Morin's

case all of the Justices concurred with His Honour

Justice Sopinka in relation to that ground of

appeal dealing with evidence said to be relevant to

identity.

The respondent, at paragraph 3.15 of his

submissions relies on Her Honour Justice McLachlin

in R v B (CR). In our submission, R v B (CR) was a

case in which the probative force of the similar

fact evidence was derived from the similar stories

in the absence of collaboration. In R v B (CR)

itself, No 18 on our list of authorities,

Her Honour Justice McLachlin, at page 28, in our

submission, when approaching the assessment of the

probative force of the evidence in that case,

determined what similarities existed between the

evidence of the complainant and the similar fact
evidence of the other alleged victim and, we say,

therefore, adopted precisely the same approach as

each of the Lords adopted in Boardman's case to the

final determination of the issue.

As I have said, His Honour Justice Sopinka,

with whom His Honour Justice Lamer, at that time, concurred, dissented in that case. Subsequently, in our submission, the net effect of the judgments

has been to show a unanimous retreat back to the

position that probative force can only arise in

some other way than by a criminal disposition. In

fact, Her Honour Justice McLachlin, in the case of

R v C (MH), No 32 on our list which I do not need

to take the Court back to, delivered the unanimous

judgment of the Supreme Court which included

His Honour Justice Sopinka.

In addition, the later case, which I have

already taken the Court to, of R v B (FF), No 20,

each of the Justices were unanimous on this issue.

Therefore, it is our submission that His Honour

Justice Sopinka's dissent in R v B (CR), which we

rely on in our written submission and its

interpretation of Boardman's case, retains

considerable authority.

It is our submission that the Australian

authority is overwhelmingly to the same effect, and

we have set out in our written submissions, at

paragraph 32, pages 18 to 19, a summary of the

cases which we say support our proposition that

evidence must be relevant in some other way

than as showing criminal disposition to achieve

probative force and, in particular, we refer to

Pfennig(2) 24 24/8/94

each of the judgments in Harriman's case and in

footnote No 10 have referred to the other cases in

which the same proposition has been repeated.	I
will not take the Court to each of those cases

because they are set out in the written submission.

In our response, we referred briefly to the

American approach at paragraph 3.2, and the

literature indicates that in America the position

is that, where the issue is identity, something in

the nature of a signature must be established from

the circumstances of the offences. We have

included in our book of authorities in book 2,

No 31, an extract from the Anglo American Law and 90, when the author in this 1993 article says

that:

the American courts instead rely on the

so-called "modus operandi" doctrine. They

admit testimony about the accused's commission

of other offenses only if the charged and

uncharged offences share a methodology so

unique that it is probably idiosyncratic to a

particular criminal. To be admissible on the

issue of identity, the offences must possess a

"signature quality" - they all must display a

modus operandi which is a "veritable

trademark" for the accused.

We further submit that there are very strong

policy reasons for insisting that the probative

force of evidence of other offending must arise

from circumstances other than criminal disposition. The chief reason, in our submission, identified in

Sutton's case - No 1 in our list - by His Honour

Justice Brennan, at page 545, and Your Honour
Justice Deane, at page 558, is that evidence of

mere propensity to commit offences, even of the

particular type charged, erodes the presumption of

innocence substituting trial by prejudice for proof

of facts beyond reasonable doubt. That appears in

Your Honour Justice Deane's judgment, about the

last eight sentences of the paragraph.

It is our submission that reasoning from the concentrate on the accused's personal character or	accused's disposition forces the jury to
disposition so that the jury must consciously address the question of the type of person the accused is. If the evidence of other offences
indicates that the accused is a repulsive, immoral individual, the type of person who ought to be incarcerated, then the jury is likely to
overestimate the probative force of the evidence of
other offending.

Pfennig(2) 25 24/8/94

In this case, the very coincidence which the learned trial judge left to the jury invited them to consider the appellant, present at the scene of

the abduction, with a propensity to abduct, that

is, as a person likely to abduct. The jury

approached, therefore, their considerations of the

case against the accused not with any presumption

of innocence in his favour but upon the basis of

his probable guilt.

TOOHEY J: When you put it that way, you seem to be implying

that there may be some probative force in the

evidence.

MS SHAW:  It is not what the law recognizes, in our

submission, as logically probative force. It is

the reasoning that is referred to by His Honour

Lord Cross in Boardman as being the natural

inclination that a lay person might respond to

having that information.

TOOHEY J: But I take it your case is that if evidence goes

no further than propensity, it is simply

inadmissible.

MS SHAW:  That is so, yes.

TOOHEY J: Just while I am interrupting you - and I do not

know whether you propose to deal with this or not,

Ms Shaw - the grounds of appeal are largely expressed in terms of the non-admissibility of the evidence but, in part, they deal with the judge's

direction to the jury.

MS SHAW: Yes.

TOOHEY J:  Is that in amplification of admissibility or is

it an independent ground of appeal, namely, that

if, for any reason, the evidence were admissible,

nevertheless the trial judge's direction to the

jury was in error?

MS SHAW:  That is so, in the sense that it is our submission

that the directions to the jury demonstrate the

basis upon which His Honour admitted the evidence

and that they demonstrate the admission of the

evidence on any permissible basis.

TOOHEY J: Yes. Well, in a sense, that is taking it back to

admissibility, is it not?

MS SHAW: It is.

TOOHEY J:	It is not really an independent ground of appeal.
MS SHAW:	No.

In our submission, it does not need to be because it exemplifies the reasoning process of the

Pfennig(2) 26 24/8/94

trial judge. In other words, it would not be

permissible to admit it on one ground and then

leave it to the jury on a different ground,

particularly when you are dealing with evidence of

this sort.

TOOHEY J: Yes, I understand, thank you.

MS SHAW:  It is our submission, by asking the jury the

question which is what Your Honour Justice Toohey

has adverted to, that is the directions to the
jury - by asking the jury to consider the
improbability of there being two persons with the

same propensity as the appellant at the reserve at

about that time. We say that the effective onus

has shifted to the appellant. He is required to

point to a more likely suspect, that is to other
persons who might also have committed an offence

similar to the Hyland offence or who might yet in

the future commit such an offence.

Where the propensities of others are unknown,

we say that such prejudice is bound to result in a

guilty verdict. In our submission, the prejudice

which propensity reasoning introduces to a given

case is illustrated by the very approach taken in

this case. Inferences had to be drawn in three

different stages, each dependent upon propensity

reasoning.

The first stage was to employ propensity

reasoning to draw a number of inferences from the
Hyland offence in order to implicate the appellant

in Michael Black's abduction and presumed murder,

drowning having been negatived. The inferences to

be drawn were that, firstly, the offence showed the

appellant to be a particular sort of person;

secondly, that he was such a person 12 months
earlier; and, thirdly, that because he was such a

person at the time of Black's disappearance, he was

likely to have abducted Black.

The second stage is to employ propensity reasoning based upon the abduction of and the

presumed murder of Michael Black to establish facts

about the identity of the murderer. Upon that

basis, an inference is drawn, that is upon the

basis of a presumed propensity of the murderer, as

to the sort of person or kind of offender who would

have committed that crime.

The third stage is to assess how many persons

there might have been at Sturt Reserve at the

relevant time who would have had the same

propensity as the appellant, th~t is, as I have

said, persons who had manifested it in the past or

would in the future. Having inferred the sort of

Pfennig(2) 27 24/8/94

person that the appellant was from the Hyland
offence, the jury were asked to predict the likely

behaviour of the appellant 12 months earlier; the

likely behaviour and propensity of the person

responsible for the abduction of Michael Black; and

the likely behaviour or propensity of any other

person who might be in the area at that time.

We submit that this kind of prediction of

abnormal human behaviour is so far beyond the

normal experience of jurors that they cannot be

safely asked to come to conclusions about it. Such

predictions are very different t,o a jury	considering how unique a particular way of
committing a crime might be. When a jury is asked
to predict human behaviours, they are more likely to act in accordance with a strong inclination identified by His Honour Justice Sopinka in R v B,
No 18, which I will not take the Court to, but I
refer to it at page 7 when he referred to the
natural human tendency to judge a person's action
on the basis of character and the strong
inclination to conclude that a paedophile has
engaged in paedophilic acts.
In our submission, it has been pointed out in the literature that whereas the law recognizes that
bad character cannot be regarded as a reliable
predictor of behaviour on a specific occasion,
jurors are likely to treat it otherwise. That is,
of the world are a trustworthy basis for legal it is accepted that a juror's knowledge of the ways
reasoning. It is not trustworthy to rely on an act of an individual on one occasion as a reliable
indicator of his behaviour on a different occasion in relation to a different individual.

We rely on the article, No 30 on our list, by

Imwinkelried published in 1990 in

51 Ohio St LJ 575. The article is called, "The Use

of Evidence of an Accused's Uncharged Misconduct to

Prove Mens Rea: The Doctrines Which Threaten to

Engulf the Character Evidence Prohibition". At
page 581, in the last paragraph, the learned author

wrotez

On the one hand, the available

psychological studies indicate that once

they -

that is jurors -

have characterized the accused's general

character, the jurors are likely to attach
great weight to that characterization in

determining whether the accused acted "in character" on the occasion of the charged

Pfennig(2) 28 24/8/94

offense. Even when they have only fragmentary

data about an individual, many laypersons tend

to form oversimplified perceptions of the

individual's character. Thus, having

concluded that the accused is disposed to

criminal misconduct, the jurors may ascribe	great significance to that conclusion in
deciding whether the accused committed the
charged crime.

On the other hand, the empirical studies

indicate that the general construct of

character is a relatively poor predictor of a

person's conduct on a given occa~ion.

The differences between a propensity approach

and one based upon improbability of circumstances

are discussed in the same article at page 586. The
author had set out diagrams demonstrating the
stages of the reasoning process dependent upon
character reasoning. Six lines from the bottom of
the last paragraph, he says:

However, when the trier engages in character reasoning, the initial decision facing the

trier is whether to infer from the evidence

that the accused has a personal bad character.
In contrast, under the doctrine of chances,
the trier need not focus on the accused's
subjective character. Under the doctrine of

chances, the initial decision facing the trier

is whether the uncharged incidents are so

numerous that it is objectively improbable

that so many accidents would befall the

accused.

And, by analogy, we say that in an identification

case when one is looking to the similarities of the

various offences, there is no need to focus on the

circumstances. So that in Sutton's case, even	subjective character of the offender; what one focuses on is the evidence of the various
though he was, in fact, identified by two of the
victims and he made a confession in relation to the
third, when the jury approached their consideration
of the evidence upon the basis of the approach that was followed in that case, the jury focused on the
objective facts and circumstances and only turned to the particular accused and the identification of
him when it was necessary to link - having
concluded that the one offender committed all offences, it was then necessary to link that one offender to the accused.

Similarly, in the same article, the author

drew attention to the fact that evidence based upon

the first approach, the propensity approach, was in

Pfennig(2) 29 24/8/94

fact often wrongly admitted in purported compliance

with the objective improbability approach. He said

at page 585 in the last paragraph, half-way down: However, several commentators have argued that

prosecutors are now smuggling inadmissible bad

character evidence into the record under the

chances. guise of invoking the doctrine of objective

He went on to warn of the dangers when a propensity

approach is taken at page 587. In the last

paragraph, the third line, the author said:

That risk is acute under a character theory because the theory forces the jury to

concentrate on the accused's personal

character or disposition. The jurors must

consciously address the question of the type

of person the accused is. There is no need

under the doctrine of chances. There is an	for the jurors to grapple with that question
undeniable possibility that on their own
motion, the jurors may advert to the question.
However, unlike a character theory, the
doctrine of chances does not compel the jurors to focus on the accused's subjective
disposition.

In our submission, similar policy considerations are discussed in both the Australian and English

editions of Cross on Evidence which we will not

take the Court to but are on our list of

authorities, Nos 28 and 29.

The respondent's contention in the written

submission at paragraph 1.5 is that in some

circumstances, there is such a high degree of

probative force in reasoning from character to

We say that that submission fails to recognize that	guilt that any prejudicial effect is outweighed.
any circumstances which increase probative force based on character will equally magnify the
prejudice. For that reason, in our submission,
His Honour Justice Sopinka in R v B (CR) - and I do
not propose to take the Court to it - at page 8 described the proposition for which the respondent contends as a contradiction in terms.

We contend that, quite apart from any such

contradiction, the respondent's approach would

inevitably transform what has until now been a

question of law, that is, the identification of a
relevance other than.by a propensity, into an

exercise of the general discretion to exclude

prejudicial evidence. The importance of the

distinction between the question of law and the

Pfennig(2) 30 24/8/94

general discretion was made by His Honour, former

Chief Justice Gibbs in Perry's case, which I will

not take the Court to, but it is No 5 on our list,

and by His Honour Justice Brennan in Sutton's case,

No 1 on our list, which I take the Court to, in

particular at page 548 at the third line, where

His Honour said:

It is therefore wrong to approach the admissibility of similar fact evidence as

though the primary principle is the discretion

to which Lord Moulton referred in Christie.

To treat the merely prejudicial effect of

evidence of other criminal offences as no more

than a factor to be taken into account in

exercising a discretion would be to diminish
the guarantee of a fair trial which the

exclusionary rule is calculated to secure.

We submit that if it becomes a matter of

discretion, it would be extremely difficult to keep

check because the exclusionary rule will have been	the admission of the most prejudicial evidence in
undermined.

The risk of such widespread admission, even to

offences such as burglary, was raised by counsel in

Straffen's case. I do not take the Court to it,

but it is No 12 in our list. The court's response

to that concern was that the only evidence that

would be admitted, even against the burglar, is

evidence which proved identity by way of a

hallmark. It is in Straffen's case that we see the

expressions of hallmark and stamp.

I now turn to the factual circumstances

relevant to the admissibility of the evidence

raised by our ground 2.3. His Honour's findings

about those factual circumstances are challenged in

that ground, and His Honour's ruling and findings

are in book 8 commencing at page 1400.

TOOHEY J: Could I just take you back for a moment. I am

having difficulty with the way in which the

argument is being put because I am not clear

whether the primary submission is that the evidence

was simply inadmissible because it was not

relevant which, if you make that good, then that

really is the end of it; or that it may have some

relevance, but nevertheless its prejudicial effect	far outweighs any probative force it may have and
therefore the evidence should have been excluded.
I put it in those terms because you just took us to
the passage in Sutton which speaks of an
exclusionary rule. ·

MS SHAW:  Yes.

Pfennig(2) 31 24/8/94

TOOHEY J: But, I 7ather thought that the way in which you	were putting your argument up to now was that you
do not reach that question of exclusionary rule
because the evidence has no probative force whatsoever and therefore it is simply inadmissible.
MS SHAW:	Your Honour, on that question the various

authorities express differing views. Some of the

judges say that, for example, it is not relevant

and can never be relevant. Others say that it may

have some relevance but it can never achieve a

probative force beyond the prejudice and, for

example, even Lord Hailsham in Boardman refers to what is called the two theories of relevance and,
what we say is the effect of the exclusionary rule is that you have deemed irrelevance because of the nature of the evidence, deemed irrelevance perhaps more accurately than logical irrelevance. That is what we say is the effect of the exclusionary rule.

TOOHEY J: It is not so much the authorities I am concerned

with as making sure I understand what the

submission is.

MS SHAW: Well, our submission is that mere propensity

evidence is not relevant, but in the alternative if

it is thought to have any relevance at all it can
never achieve the probative force necessary for

admission. In the same way as His Honour

Justice Dawson referred to in B v Rand, indeed,

Your Honour Justice Mason with Your Honour

Justice Dawson in Thompson's case stated the same principle, that if it is evidence of mere
propensity it can never achieve the probative force

necessary to outweigh that prejudice.

TOOHEY J: That is the problem. When you put it that way

you are really putting it in terms of an

exclusionary rule, are you not?

MS SHAW: Yes.

TOOHEY J: You are saying, in effect, "Well, it is

admissible, but it ought not to be admitted because

its prejudicial effect outweighs any probative

force that it has."

MS SHAW: Yes.

TOOHEY J: Is that a sort of "fall back position" so far as

your case is concerned? I mean, in other words, do

you put it primarily on the basis that the evidence

is simply inadmissible? Alternatively, if it is

admissible its probative force is outweighed by its

prejudicial effect and therefore the evidence

should have been exc·luded. Or do you take your

stand on one or other of those propositions?

Pfennig(2) 32 24/8/94

MS SHAW:  Our submission is the exclusionary rule means that

as a matter of law the evidence is inadmissible

because it is deemed that its prejudicial effect

will always outweigh any probative value it could

possibly have. That is as a matter of law, and the

next step after that, the courts have acknowledged,

that there is a residual discretion. Generally, it

is said, that if it has the probative force to pass

the test to become admitted in the first place, it

is difficult to envisage situations thereafter

where the prejudicial effect could be said to

outweigh its probative value, but the residual

discretion is acknowledged.

TOOHEY J:  I must confess I have some difficulty with that,

not as a proposition but quite where it fits in to

the other proposition, which is simply that the

evidence is inadmissible because it does no more

than show propensity and therefore it is

irrelevant, which is a more fundamental

proposition.

MS SHAW: Yes, that is our submission, but the courts have

acknowledged that it could have this slight

probative value or logical probative value in the

eyes of jurors and, in effect, to postulate

whatever probative value it could be said to have.

I realize I am repeating yourself, but it is a

difference in approach to the exclusion of the

evidence, and whichever approach is taken we say

the same result occurs because it is a rule of law.

TOOHEY J: Yes, thank you.

DEANE J:  Ms Shaw, while you are being diverted can I take

you away a little bit from your argument to ask you

something?

MS SHAWi Yes.

DEANE J: Could I take you to page 1463 in the evidence,

volume 8. Now, in the middle of that page there is

a conversation that took place after the Hyland

affair on 18 August 1989. The "12 months" referred

to covers the date of the offence in this case.

Why does not that take this case quite out of the

near propensity case in that in it you have a

statement by the accused that at the time of the

alleged offence he had:

been thinking of it on and off for the past

12 months -

and - if I can just _follow it through - why, in the

context of that statement, was not evidence of what

"it" was admissible? Subject, of course, to

Pfennig(2) 33 24/8/94

questions of real discretion in the sense of

prejudicial.

MS SHAW:  Your Honour, the first thing I should point out,

factually, is that the accused agreed that he said

that, but his evidence was that he said it in the

context of the loneliness of his relationship, and

he was not talking about the incident, but the "it"

was something else. So it was a disputed fact, in

that sense.

DEANE J:  I had assumed that it was a correct summary of

Ms Pfennig's - if that is how you pronounce the

name - evidence.

MS SHAW:	Yes, it was a correct summary of her evidence, but I have merely pointed out at the outset that it was
not an undisputed fact, that is, the interpretation
of what was said when he referred to, "I had been
thinking about what he was referring to," was the fact that they had been separated and he was hoping
that there might be reconciliation.

DEANE J: But, if you accept Ms Pfennig's evidence as being

precisely that, would you dispute that her evidence

was admissible?

MS SHAW:  Your Honour, her evidence is no more, in my

submission again, than evidence of propensity.

DEANE J: So you would say it was not admissible?

MS SHAW:  No. I say it was not probative, it was mere

propensity. It might have been relevant to proof

of the Hyland offence in the sense, if it could be

said that he was thinking about doing that offence,

but - - -

DEANE J: Let us take it away from this, and say your client

had been charged with stealing a car and he had

been found six months after the alleged offence

having just stolen a car and he said, "Oh, I have

been thinking of that for the past 12 months,"

would you say that an admission that at the time of

the alleged offence he was thinking of stealing a

car was inadmissible on the charge that at that

time he had stolen a car?

MS SHAW:	It is relevant to the issue in relation to the car stealing as to his intention to steal the car. You
are not using it in terms of propensity reasoning. You are using it to prove what he in fact did,
because it expresses an intention to do that.
DEANE J:	I was asking you whether Miss Pfennig's evidence,

that at the time of this alleged offence he had

been thinking of doing something which we know

Pfennig(2) 34 24/8/94

could be relevant to the alleged offence.	You say
that was not admissible?

MS SHAW:  Your Honour, it could only be admissible if you

reason via propensity as to the likely author of

the Black offence.

DEANE J:  I follow what you say. I see something different,

to what I have referred to in my judgment in

Sutton, as mere propensity and an admission that

somebody was thinking of doing something at a

particular time when an offence allegedly took

place. But I follow the way you put it.

MS SHAW:  Your Honour, if it is the exact same offence that

you then do it is probative, but if it is only
thinking of a class of offence then, in my
submission, it is not. And the class of offence

here is not identified to relate it to the

Michael Black abduction.

DEANE J: If evidence of that conversation were admissible

and the conversation were in the terms there set

out, would you, apart from questions of pure

discretion, say that evidence of the Hyland affair

to show what it was, was not admissible?

MS SHAW:	I am sorry, Your Honour, I do not follow that.
DEANE J:	You see, the conversation is, "He said he had been

thinking of it on and off". Now, assume for the

sake of this question that evidence that he made

that admission was properly accepted, what would

you say about the proposition that the evidence of

the Hyland affair was then admissible to identify·

what the "it", that he was referring to, was?

MS SHAW:  In my submission, that does not address the real

issue as to the relevance of the Hyland offence to

the Black offence.

DEANE J: Thank you.
MS SHAW:	The only relevance, in my submission, is via a

propensity reasoning. At the commencement of

His Honour's approach to the ruling, at page 1400

line 15, he correctly identified the issue as

identity, and then he acknowledges, at the last

line on the page, that there was a question as to

"whether the evidence proved that there was in fact

an abduction", it being strongly disputed by the
accused, that is the accused contended that the boy

had drowned.

At page 1401 line 7, His Honour thought he

should attempt to resolve numerous factual issues

and accordingly - when I say "numerous factual

Pfennig(2) 35 24/8/94

issues" I mean not between the defence case and the

prosecution case but between the witnesses for the

prosecution themselves. And he took evidence over

three weeks. At line 13 he recognized that the

witnesses were not in complete agreement with one

another, and at line 21 he thought that because the

evidence was unlikely to be exactly the same as a

trial, he would wait until he heard the trial

evidence to give his final ruling.

We submit that the first question that arises

from His Honour's findings is whether a judge ought

to go so far as a preliminary issue and make those

kinds of preliminary findings or whether or not,

bearing in mind the test of admissibility for

similar fact evidence and the high degree of

probative force required, the correct approach to the determination of the admissibility of similar fact evidence should be to take account only of

those facts which, in other cases, have been

described as "indisputable".

It is our submission that evidence of other

offending - especially of offences of a sexual

nature - with their recognized particular

prejudice, ought never be admitted when there is a
real contest or dispute as to the foundational

facts; that is, there exists an issue over which

minds might genuinely differ. Put it another way,

it is our submission that it is not enough that a

trial judge feels able to reach a conclusion beyond

reasonable doubt, that there will be a genuine

dispute unless it could be said that no reasonable

person or jury could ever doubt the foundational

fa~ts.

In our respectful submission, there appears in the judgments in Hoch's case to be a slightly

difference of approach to this question. We take

the Court to Hoch's case, (1988) 165 CLR 292, which

the joint judgment of the majority in that Court,	is No 6 on our list of authorities, particularly in
when the determination that was as to whether or
not there might be a risk of concoction between the accounts of a number of victims of sexual offences, such risk thereby effectively undermining the
probative force of each of their accounts, the
majority, at page 297, referred to what a trial
judge had on which to base the decision, namely the
depositions of the witnesses, and the majority went
on to refer to what the depositions might contain, and then about 8 lines from the bottom of that
paragraph:

Of course, there may be cases where an

examination on the voir dire is necessary, but

that will be for the purpose of ascertaining

Pfennig(2) 36 24/8/94

the facts relevant to the circumstances of the
witnesses to permit an assessment of the
probative value of the evidence by reference

to the consideration whether, in the light of

common sense and experience, it is capable of

reasonable explanation on the basis of

concoction -

and we draw the distinction between an assessment

as to whether or not something is capable of

reasonable explanation on the basis of concoction

and making an actual finding that there was

concoction. On the other hand, in the judgment of

Your Honour Justice Dawson and His Honour

Justice Brennan, Your Honours postulate, at

page 303, an actual finding being made. At
page 303, in the sixth line, Your Honour said:

But in determining the admissibility of certain special classes of evidence it is inevitable that the trial judge must make an

initial determination of questions of fact

which the jury may ultimately have to decide.

To support our submission that foundational

facts ought not be relied upon unless they have

that high degree of proof, we refer to similar

expressions to be found in the cases. In

Boardman's case, for example, Lord Cross spoke of

facts relied upon as to the basis for admissibility

which were undoubted, indisputable and not open to

challenge.

Your Honour Justice Deane in Sutton, at

page 557, referred to other offences as having been

undoubtedly committed. Her Honour Justice Gaudron

referred to the undisputed evidence that Martin and

the applicant were business associates and had

travelled together to Chiang Mai.

In other cases, it has been emphasized that

the facts relied upon were either not contested;

for example, Your Honour Justice Dawson in Sutton;

or admitted by the accused, for example, in

Straffen; and it has been noted by the author

Piragoff in his text "Similar Fact Evidence" that

in an ordinary objective reasoning process, while

the ultimate conclusion or meaning of the similar

facts need not necessarily be independently proven;

the factors which fuel the process, however, must.

It is our submission that if, for example, in

Harriman it was not common ground that the

applicant and Harriman had travelled together, that

there was disputed circumstantial-evidence to

suggest they had. It could not be right that the

trial judge could be asked to find, as a

Pfennig(2) 37 24/8/94

preliminary issue, that the trip occurred and

thereby determine whether or not the other evidence

ought to be admitted.

Similarly, in Sutton's case, if the accused's

defence on one count had been that consensual

intercourse had taken place, and without the
similarities described by one victim, it could

hardly be suggested that the trial judge should

have, as a preliminary issue, decided whether the

girl's version of the circumstances should be

believed beyond reasonable doubt.

MASON CJ:  Can we ask you where do we find the evidence of

Sandra Pfennig?

MS SHAW: That has not been reproduced, Your Honour.

MR DOYLE:  Your Honour, we are just organizing to have

copies of those pages made. There are quite a

small number of pages.

MASON CJ: That relate to the direction of 1463?

MR DOYLE:  Yes. I do not think my friend denies that what

Justice Cox said is a fair summary of it, but in

any event there are only about five or six pages

involved and I would think we will have them for

the Court in 10 or 15 minutes.

MASON CJ: Thank you.

MS SHAW:  We submit that by analogy in this case there was a

genuine dispute about all of the matters which were

critical to His Honour's ruling, including that

Michael Black may have drowned. It is our submission that without the Hyland evidence it was

open to the jury to reach a different conclusion to

that of the trial judge. However, because the

Hyland evidence was admitted the jury was required

to consider that issue under the cloud of prejudice

which the Hyland evidence inevitably generated.

Alternatively, we submit that important

findings of His Honour, which were intermediate

facts for the purpose of reasoning to the

appellant's guilt, were not found beyond reasonable

doubt. In fact, His Honour, in our submission,

drew a distinction between his findings on various

primary facts and his finding in relation to the
issue of drowning. Whereas upon the issue of

drowning His Honour said, at page 1405 line 13: I do not think that drowning, as an

explanation for the boy's disappearance, is a reasonable possibility on the evidence before

me.

Pfennig(2) 38 24/8/94

At page 1404, when he was approaching the

resolution that the remaining primary facts, or

important foundational facts, in our submission, he

made findings on the basis of likelihood.

At page 1404 line 5, he concluded, for

example, that it was very unlikely that Michael

Black went as far as Thiele Reserve.

TOOHEY J: Ms Shaw, could I just ask you: the trial judge

having ruled that the Hyland incident, or evidence

of that incident was admissible, how and what form

did the evidence take?

MS SHAW:  The boy gave evidence of the entire abduction and

all of the sexual assaults that occurred, and those

details were particularly abhorrent.

TOOHEY J: Yes, thank you.

MS SHAW:  The crucial findings of fact, which we challenge

in this case are, firstly, that the abduction of

Michael Black was for sexual purposes; secondly, that the abduction was from Sturt Reserve; thirdly,

that Michael Black spoke to the appellant at

2.25 pm; fourthly, that in the Hyland abduction the

victim's bike was left in a way to suggest an

accidental drowning; and fifthly, that
Michael Black did not drown in the river. As to

the finding that the abduction of Michael Black was

for sexual purposes, His Honour said at page 1405

line 18, simply this:

Any abduction in such a case is very likely,

in my opinion, to have been for a sexual

purpose -

and His Honour went on to says

If Michael Black was abducted and sexually assaulted, it can only be concluded from his

prolonged disappearance that he has been

murdered, most obviously by the person or
persons who abducted him.

It is our submission that such an important

foundational fact to the admissibility of the

propensity evidence ought to have been made beyond

reasonable doubt because it was an intermediate
fact, in our submission. But, more importantly, it

is our submission there was a complete absence of

evidence as to what happened to Michael Black, upon

which such a finding could be made. It is our

submission that the process must be purely

speculative, and at paragraph 104 of our written

submissions we set out other possibilities.

Pfennig(2) 39 24/8/94

I think it was very likely that he left

Sturt Reserve in a vehicle driven by his

abductor.

Of course, only if that were so could it be said

that the abductor laid a false trail at

Thiele Reserve. The reasons His Honour found it

very likely he was abducted from Sturt Reserve

appear at line 25 of page 1405, and seem to include

the matters at the top of page 1405. At the bottom

of page 1405 His Honour says that:

The more obvious possibilities are that the

boy rode from Sturt Reserve to Thiele Reserve

on his bicycle, on his own initiative or his

abductor's, and was forcibly abducted there;

or that he rode to some other point in the

town where he was abducted; or that he was

overpowered at Sturt Reserve and removed in

the abductor's vehicle; or that he left the

Reserve in the abductor's vehicle voluntarily

and was overpowered elsewhere.

On the basis that there was a lack of reliable

sightings of Michael Black anywhere else once he

had gone to Sturt Reserve, His Honour found that it

was very likely that he left Sturt Reserve in a

vehicle driven by his abductor. His Honour went on

to find that any vehicle used in the abduction had
to be commodious enough to take the boy's bicycle

and gear and dog. As I said, he appears to include

the matters at the top of page 1405 in relation to

Michael Black not having been seen at

Thiele Reserve.

It is our submission that His Honour himself,

at the foot of page 1405, is acknowledging that

there were "a number of other obvious

possibilities", to use His Honour's expression, as

to where any abduction is likely to have taken

place. To exclude the other obvious possibilities,

His Honour appears to be relying upon the lack of
any clear sightings after 2.25 pm.	To support the

finding of an abduction from Sturt Reserve, His Honour thought it important, and made a

finding, that there was no clear evidence of the

boy being seen by anyone after 2.25, and that

appears at page 1408 at line 27. He said:

About an hour after Michael Black arrived at

Sturt Reserve he was seen talking to a man who on the circumstantial evidence is likely to

have been the accused. There is no clear

evidence of the boy being seen by anyone after

that. (The evidence of Mrs Giles is

consistent with·her having seen him between

2.30 and 3, but she is vague about times.)

Pfennig(2) 42 24/8/94

It is our submission that His Honour's finding

that there was no clear evidence of the boy being

seen by anyone after that is inconsistent with the

evidence of Miss Giles, and it was not proper for

him to simply discount her evidence upon the basis

that she was vague about times.

Her evidence was that she had seen Michael Black and served him on three occasions

from 2.00 pm at a 20 minute interval, and then at a

half-hour interval, and she placed the last contact

pretty close to 3 o'clock. She was a lady who was

working in the kiosk at the reserve and

Michael Black approached her on a number of occasions, on those occasions to obtain chips and

an icy-pole, and she was someone that knew

Michael Black previously.

The other lady working in the kiosk,

Mrs Regnier, was cooking for the most part but she

did serve Michael Black on one occasion which she

put at 2 o'clock. She also heard Michael Black

speak to Miss Giles, which she put at a half an

hour after that, and in her first two statements

and her committal evidence she thought that

3 o'clock was the last time she had seen him. That

was her evidence at page 198, but at trial she was

not sure whether her committal evidence was

accurate.

By postulating that Michael Black left

Sturt Reserve in the abductor's vehicle, His Honour

came to the further conclusion that the vehicle had

to be commodious enough to take the boy's bicycle,

gear and dog. He later on, at page 1411 line 7,

included the appellant's Kombi van in the

combination of circumstances justifying the

admission of the evidence. The evidence was that

in fact on that very evening the bicycle had been

placed into the back of a hatchback motor vehicle

and the belongings were taken back to the family

home. In our submission - we have referred to that

in paragraph 7 of our response. Not only that,

indeed during the course of the trial, in the

presence of defence counsel, a number of tests of

sorts were conducted to show that the bike could be

fitted into the boot of various sorts of cars, in

particular Falcons, Commodores and Magnas; some

without the seat being forward, some without the

boot being closed, and others with the boot being

closed, when the handlebars themselves were locked.

So it is our submission that to rely on the

need for a capacious motor vehicle and thereby link

it to the van that the appellant had was not a

Pfennig(2) 43 24/8/94

proper factual foundation for His Honour's

approach. In addition, in so far as Miss Giles'

evidence is concerned, we say that whatever

theoretical explanation there might be for

Miss Giles' times not being accurate, it was not

possible to make the finding on the balance of

probabilities and certainly not beyond reasonable

doubt that Michael Black was not seen after 2.25 pm

and was abducted from Sturt Reserve. In our
submission, none of the matters we have referred to

were capable of excluding any of the other obvious

possibilities that His Honour himself recognized.

In addition, there was evidence which is

referred to in the respondent's argument of

Michael Black having been forbidden from crossing

the bridge alone, and it is asserted that he had

not spoken to his friends at Thiele Reserve.

However, the undisputed evidence was that indeed

that very day Michael Black had crossed the bridge,

although the time at which he crossed the bridge

was a matter of dispute. The evidence of back from camping overnight he saw Michael Black on

his bike with the dog and the belongings crossing

the bridge in the direction of Thiele Reserve.

We say that the fact that there might have

been an embargo, or that Michael Black was not

supposed to cross the bridge, is a good example of

perhaps an explanation for why he did because, even

on the Crown case, it could not be disputed that

Michael Black had crossed the bridge that day and was seen doing so after he left home at 1 o'clock.

As to the suggestion that he might have joined

his friends who were at Thiele Reserve if he had

been there; we point out that his mother described

him as a loner and that the persons that he knew

there, one by the name of Snibson, had said in

evidence that he and Michael Black had gone their

whilst they were both fishing in the next town.

separate ways four years before. The other person,

It is also argued that if he had ridden his

bike to Thiele Reserve he would have been seen by

those who were fishing and water skiing and

visiting and working at Thiele Reserve. At the

same time, it is clear that on the Crown case an

abductor, pulling up in a noisy van at the toilets

and taking the barking dog from the roadside down

to the willow tree and then placing the bike and

rod and belongings near the toilets, was not seen.

The only evidence about that was.that the people

fishing at some stage pulled in a big fish and it

was suggested that might have been a distraction.

Pfennig(2) 44 24/8/94

However, Mr Bernardi's evidence was that there were always two skiers on the bank and, if on the Crown

case, in our ~ubmission, this event had occurred,

then the barking dog and the commotion that is said

to have been relied on would have been heard at

least by someone at the reserve.

In our submission there was no basis upon which it could be found, even on the balance of

probabilities, that Michael Black did not go to

Thiele Reserve of his own initiative.

The next finding is that having found that it

was very likely that Michael Black was abducted

from Sturt Reserve, His Honour went on to find, at

page 1409 line 12, that:

Michael Black's bicycle and other gear were neatly placed at the northern end of the

Reserve some time prior to, say, 3.20.

At page 1404 His Honour at line 17 also found

that:

Bernardi saw the bicycle leaning against the

railing near the toilet block at

Thiele Reserve before 3.26. Probably the

fishing gear was also there then, and both

bicycle and gear remained in that position

thereafter. I do not think that

Michael Black's bicycle was ever lying on the

bitumen nearby or was anywhere in the Reserve

other than against the railing, and standing

upright, where Bernardi saw it. The visit to

the Reserve by Toogood and Sacco probably took

place before the bicycle and other things were

put into position.

The appellant has prepared a summary of the

Thiele Reserve evidence which, in our submission,

is relevant to His Honour's factual findings. It

is our submission in particular that the summary of

evidence and the plan attached to it demonstrate

that it could not be said that there was a false
trail. The evidence of approximately 12 witnesses

we say was so conflicting that it could never be

said that the evidence of one witness could be

selected from all of that evidence and relied on.

I am just wondering if the Court does have a copy

of the appellant's summary of the Theile Reserve

evidence; it is a separate document with a plan

attached to it. I am sorry, it is not bound; it is

a separate sheet. His Honour Justice Toohey has a

copy of it.

It was essential to the Crown or fundamental

to His Honour's finding and to the Crown case that

Pfennig(2) 45 24/8/94

the belongings at Theile Reserve were placed there

by the abductor and remained in the one position

from 3.20 onwards. In our submission, the evidence

of the various witnesses made it plain that

observations they made that day of a blue BMX bike

and other belongings were in different positions.

We have attempted to set out that evidence in a

summary form to show that some of the witnesses saw

a rod, but did not see a bike; some of the

witnesses were quite adamant that they saw the bike

in a location which does not sit with the Crown

case, without belongings, and in the plan that we

have done of Theile Reserve, by the

markings A to H, we show where each of the

witnesses has placed the bike.

His Honour's findings rely entirely on the

evidence of the witness, Bernardi, who says he

arrived before 3.26 to the site where the bike was,

fell over a bike. Mr Bernardi's evidence, in fact,

was that he could not describe the bike. He did

not see anything next to the bike and he would have

expected to see the dog, the rod and the thongs,

which the Crown claimed were there at that time, if

they had been there.

After Mr Bernardi, a Mr Jennings came along.

He was working that day as a groundsman. He

dropped his sons off fishing, he had gone away to
work for about an hour and was quite definite as to

his times. When he came at 3.20 he said that there

was no bike at the site where, on the Crown case,

it must have been. He went away or left the area

between 3.30 and 3.35 and said that if there was a

bike there he would have seen it then, and he at

4.50, later that day, did see the BMX bike and the

rod and the gear, and because he did see it later

in the day, he was obviously confident that it

could not have been there earlier on.

The actual location of the shirt, as it is

shown on the plan with a cross, over by the river,

was right next to a willow tree and it turned out

that hanging from that willow tree was a shrimp pot

or a yabby pot, and Michael Black was known to be a

person who was interested in collecting yabbies and

searching shrimp pots and the like. The belongings

themselves, when they were located later that

evening, were in the position which we have marked

Con the plan, but the other letters all represent

the different locations at which it was seen.

So we say that if the bike had been moved

around, then it could not possibly have been placed

there by the abductor for the purposes of laying a

false trail. It is fundamental to the Crown case

that all of the items arrived at the same time, as

Pfennig(2) 46 24/8/94

His Honour found, before 3.20, and thereafter they

did not move, and we say that the undisputed
evidence of all of the witnesses was of a number of
sightings in different places and even if but one
of those persons was accurate, it completely
destroyed the Crown theory of a false trail.

We point out, in particular, that Mr Toogood and Mr Sacco, who came to the Theile Reserve area

that day to do some work, went over to the area

near the toilets where the word "parking" appears, and placed flags around a trench in that area, say that the bike was lying over a trench, and that

they specifically flagged the bike in to teach the
owner a lesson. In our submission, those

observations by both of those gentlemen that it was

a blue BMX bike, and they remembered doing that

because of the fact they wanted to teach the owner
a lesson, could not be discounted and thereby leave

the Crown with a case of a false trail.

DEANE J: Ms Shaw, I am not quite sure where we are now. Is

this directed to the question that, even if one

comes to an exercise of discretion, the probative

force was not sufficient? It is not a general

unsafe and unsatisfactory argument, is it?

MS SHAW:  No, it is not. It is directed to the factual

basis for His Honour's approach to his ruling and

if the factual basis fails - - -

DEANE J: What, the improbability approach?

MS SHAW:  Not to the improbability approach, no,

Your Honour. It is to the basis upon which he drew inferences and therefore set up his final

reasoning.

DEANE J: But his reasoning was on an improbability basis,

was it not?

MS SHAW: Eventually, improbability of propensities.

DEANE J: Yes.
MS SHAW:	But to come to that reasoning, he had to find that

the abduction of Michael Black was for sexual

purposes, for example, and we challenge that

finding. It was an essential step in him reaching

the stage of his improbability reasoning that he

make a number of findings of fact. This is not a

case - and what I have attempted to demonstrate is

that what is so very unusual about this approach is

that in a similar fact case - - -

DEANE J:  so what you are really doing is you are saying~

one, His Honour was wrong in law; second, even if

Pfennig(2) 47 24/8/94

he was not wrong in law, I want to examine all the

facts on a factual basis.

MS SHAW:  Yes, that is so, Your Honour, that even if he is

wrong - - -

DEANE J:  Was that second proposition made clear in the

leave application?

MS SHAW:  Yes, it is certainly in the notice of appeal and

it is in our ground 2.3.

DEANE J: No, but I thought the leave application was on the

basis that it raised pure questions of law rather

than required the Court to get involved in all the

underlying facts.

MS SHAW:  Your Honour, it certainly was not the special

leave point that was argued but, in our submission,
when the test of admissibility is the degree of
probative force that the evidence is able to

achieve, then the foundational facts are very

relevant to that consideration in any event.

DEANE J:  I understand that. All I am suggesting is that I

would have thought there was something to be said

for the view that if you seek special leave on the

basis that a wrong principle of law has been

applied, the Court should be informed that even if

you fail on that proposition of law, you then

propose to go into all the facts and say, "Well, on

the factual basis it shouldn't have been admitted

anyway", in that I very much doubt whether you

would have got leave to get involved in the factual

matters if that had been made clear.

MS SHAW:  Your Honour, it certainly was not made clear. It

was not a case where I must say that I had

completed my submissions on the special leave

before the Solicitor-General was called on.	I do
not use that as an excuse, but in my

submission - - -

DEANE J:  I was not indicating any criticism of you

personally at all.

MS SHAW:  No, I accept what Your Honour says, but it is our

submission - and this is obviously an error on my

part not to make this plain - that just as in

Perry, when one came to consider the probative

force of the separate similar facts, it was

necessary to examine the individual facts which

were the foundation for the similar fact reasoning.

In the same way here we say that one cannot examine probative force without looking at the foundational

facts, and it is in that sense that the process

adopted by His Honour, and the burden of proof and

Pfennig(2) 48 24/8/94

his approach of being able to choose between

witnesses, is central. We say one cannot consider

the probative force of the evidence overall without

knowing whether the foundation is sound.

DEANE J:  I do not follow that. Are you saying that it is

central to your argument on the principle of law

that one rejects His Honour's findings of fact?

MS SHAW:  No, Your Honour; as an alternative.

DEANE J: Well then, are we not back to what I put to you? I follow the way you say, "Accepting His Honour's

findings of fact, he went wrong in law", but we are

now, as I follow the proposition, saying that if

His Honour was correct in law, this Court should go

into all the facts because, if it does so, it will

finally conclude he did not have the factual basis.

It is the second exercise that I am perhaps suggesting I would feel inclined to resist getting

involved in.

MS SHAW: Well, Your Honour, the way in which the overlap

arises, for example, centrally, is the very finding

of an assumption of sexual purpose in relation to

Michael Black and that, in my submission, is the

foundational fact for the improbability reasoning
of Black and it would be wrong to consider the

question of law, with respect, without determining

whether or not such an approach was even open to

the trial judge.

DEANE J: Well, you are now saying that we get involved in

all the facts before we get involved in your legal

argument.

MS SHAW:  No, Your Honour. The point of principle is

certainly clear but, in the application of the

principle to this case, then it is necessary to

look at the foundation of what His Honour relied

on.

DEANE J: Can I just delay you one moment longer. I take

you to page 1408 of the appeal books. The

paragraph commencing at line 20 refers to your
client's evidence and then follows the third-last

line over to the fourth line on page 1409. Would

you wish to attack that?

MS SHAW: This is the - - -

DEANE J: Where His Honour says, accepting your client's

evidence on all the evidence viewed as a whole,

Michael was seen speaking to your client and:

there is no clear evidence of the boy being

seen by anyone after that.

Pfennig(2) 24/8/94

Would you accept that or would you want to

challenge that?

MS SHAW:  I challenge that, and indeed it was not accepted

by His Honour Justice Moore in the Court of Appeal.

DEANE J:  But you would want us to get involved in that

also?

MS SHAW:  Yes, Your Honour, in the sense that it is not a

question of credibility; it is a question of:
accepting the Crown evidence at its highest, this

inference was not open.

DEANE J: ,Very well.

MS SHAW:  The next finding that I wish to turn to is the

finding that, having referred to the Theile Reserve

evidence and the suggestion that it could be said

with all those conflicts that there was a false

trail, I refer to the Hyland evidence and the

finding that there was a false trail in the

placement of the bike at Trigg Point in a car park

at the esplanade. In our submission, that could

not be said, even on the Crown case, to be in the

nature of a false trail; in fact, the abduction was
from the corner of Cliff Street and Kalgoorlie

Avenue.

According to the evidence at trial, the

abduction had occurred and then the abductor had

taken James Hyland a distance down the coast to

another beach, a half hour drive. Having been

there for half an hour, James Hyland said to the

accused that the bike belonged to a friend and he

wanted his friend to have it back and be put

somewhere safe, and it was because the boy asked

the appellant to put the bike somewhere safe that

he took the bike back to the area of the abduction

and placed it in a car park around the corner, and

this was only 600 metres from the actual abduction

clothing or anything to suggest a false trail. One	site and it certainly did not have any accompanying
would not have expected the abductor to place it
right at the scene of the abduction for the fear of
detection. So, in our submission, on the face of
it, the evidence was at best equivocal.

to do finally was just comment on a couple of

points my friend made this morning. The reference

to the not using the Hyland evidence to blacken his

character is 1458 line 24, and the final point,

Your Honours - these are just matters of detail -

my friend referred to differences in the

description given by Messrs Haines and Smart. Part

of Mr Smart's evidence related to the day before

the abduction. On the day of the abduction, Smart

also saw him and described him as wearing a black

tracksuit or trousers. That is page 13 line 27 in

volume 1.

My learned friend made the point that the

bicycle and gear could be got into a number of

motor vehicles. But one significant thing to

consider is would it be out of sight? Now, it is
one thing to get a bike and a fishing rod on the

back of a sedan, but one would think that the

significance of the van, the Kombi van, is the

ability to have the boy out of sight in the van.

Towards the end of her submission she was

arguing the evidence about Thiele Reserve did not

indicate a false trail. Our submission is once you

negate drowning it seems to point only one way,

because one has to say, "How else did the gear get

there?" and details of the time, and so forth, it

got there do not matter on that point as to whether

it is a false trail.· They are our submissions, if

the Court pleases.

Pfennig(2) 98 24/8/94

MASON CJ: Thank you, Mr Solicitor. Ms Shaw?

MS SHAW: Just a couple of points in reply. First of all,

the appellant does not contend for a category

approach as a test of admissibility but, rather,

what we are saying is that it is only by

identification of the issue to which the evidence

is said to relate and the reasoning process can the

sufficiency of the probative force be determined.

Your Honour Justice Deane raised non-criminal

propensities. There is a discussion on that topic

in Cross on Evidence, the loose-leaf edition, No 29

on our list, at paragraph 21185, where the author

points out that characteristics like
left-handedness - and we say routes taken to work,

for example - have permanency and reliability so

that they can be safely judged according to jurors'

experience, whereas criminal propensities are not

only prejudicial but cannot be so safely judged.

In addition, Your Honour Justice Deane raised

this issue of where there is evidence of the

commission of the same type of offence, which might

provide motive for a second offence, has that been

discussed? The distinction has been referred to in

Archbold, the 42nd edition, which is No 16 on our

list of authorities.

In that case the author draws the distinction

between similar fact evidence and evidence of

motive, and says it is a very important

distinction, and then goes on to discuss the
relationship cases and, in our submission, draws

the distinction that in the relationship cases the

same victim is involved in the context of the

offending and, therefore, the evidence is capable

of showing a motive in that relationship and in

that nature of the relationship, but it cannot show

motive in relation to a different individual,

unrelated or in different circumstances to that

particular relationship. The other matter that has been raised by

Your Honour is when evidence is admitted for all

purposes, as in the Canberra case of B v R. In

that case even though the majority held that the
evidence was admitted for all purposes, the

purposes adverted to were motive and unnatural

passion as to the nature of the relationship. It

was not admitted, in our respectful submission, to

reason that because he had committed this offence

on this occasion he was the sort of person who

would have committed the offences in question. We

say that in fact the- authorities, even in a

relationship case, require a warning against that

line of reasoning.

Pfennig(2) 99 24/8/94

We refer, for example, to the South

Australian - His Honour the Chief Justice here in

the case of Dolan, (1992) 58 SASR 501, on my

learned friend's list, and the case of R v B, the

latest case from the Canadian Supreme Court that we

have taken the Court to, on our list, at page 120,

both relationship cases, when the relevance of the

evidence was made plain as to the nature of the

relationship, or motive, or unnatural passion, but

at the same time there was a warning required

against reasoning from the sort of person that the

accused was. So we say even when you have the same

victim that type of reasoning is not permissible.

Finally, as to Your Honour Justice Deane's

crown example, if I might refer to it as that, in

our submission that example does not address, with

respect, the critical question as to the relevance

of the presence of the clown at the reserve. It

only becomes relevant if it can be said that it had
some connection with the offence that subsequently

occurred, when there are other equal candidates.

So we say that in that sense it is effectively

circular reasoning, that you are starting with the

accused and then working from that point, and in

that way attempting to link him with the offence

when you have not otherwise got a link. We say

that, with respect, that in the case such as

Straffen, when one looks at the reasoning - - -

DEANE J: Let us just test that though. Say all the	evidence in this case was as is except there was no
direct evidence of your client's involvement in the
Hyland incident, do you really suggest that if the
evidence had been that in each case speaking to the
child shortly before the abduction, accepting
abduction, there had been a man of 5 foot 11,
swarthy complexion, dressed in a green checked suit
with these distinguishing features, in other words,
an absolute description of your client, speaking to
the child concerned immediately before the
abduction; that would not have been a critical
factor in determining whether they were similar fact cases?
MS SHAW:	Is Your Honour posing the question in relation to

the Hyland evidence based on the description?

DEANE J: Yes, and without your client being identified by

direct evidence but to precisely identical

descriptions of the person who had been seen

speaking to the child and was the last person seen

speaking to the child before the abduction.

MS SHAW:  Your Honour, in our. respectful submission that is

precisely the correct kind of reasoning that is

involved in the Sutton approach of looking at the

Pfennig(2) 100 24/8/94

descriptions, given by each of the complainants, of

the assailant and comparing them to see whether or

not they agree - - -

DEANE J:  You see, but here we are in the stronger position

because we do not have to look at the description.

It is common ground that on each occasion not only

was the description of the person absolutely the

same but that it was your client.

MS SHAW:  Your Honour, in our submission the crucial

difference is the connection. There was no dispute

as to the connection in the Sutton case. In this

case, the dispute is as to the connection between
anything that my client did or even the person that

the Crown say is consistent with - - -

DEANE J:  I will not take it further, Ms Shaw, but I was

putting it to you on the basis of the trial judge's	finding: your client was the last person, in
respect of whom there is clear evidence of a conversation before the child was abducted.

MS SHAW: Yes.

DEANE J:  In the case of Hyland, we know that your client

was the last person who was with the child in

conversation before he was abducted.

MS SHAW:  Your Honour, I can raise two short points about

that. The first is that it then, in some respect,

is a matter of coincidence in that if you are

looking at two events occurring and in each of them

the appellant is present, is he unlucky to be

present at the first one when an abduction occurs

and then he is present at a later one. We say in

this case, similarly to the Noor Mohammed situation

if you like, he admits the second offence, so there

is no question of luck. Effectively, he is unlucky at the first one, and we say that common sense - it

is not improbable that he could have been unlucky

once, effectively. And so that, of course, is a

matter of degree, and when you have other

contenders it is our submission that the evidence

therefore does not go far enough.	May it please
the Court.

MASON CJ:  Now, there is a question I wish to ask counsel about the future disposition of this case. We had

intended to sit a Full Bench of seven but due to

circumstances beyond our control we were not able

to do so. In the event that the Court considers it

necessary or desirable to secure the participation

of Justice Brennan and Justice Gaurdron, do counsel

have any objection to their participating in the decision on the basis of reading the transcript?

Pfennig(2) 101 24/8/94

MR DOYLE:  No, not from our point of view, if the Court

pleases.

MASON CJ: And Ms Shaw?

MS SHAW:  Not from our point of view, if the Court pleases.

MASON CJ:  Thank you very much. The Court will consider its

decision in this case.

AT 3.20 PM THE MATTER WAS ADJOURNED SINE DIE

24/8/94

Pfennig(2) 102