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)

Pfennig(2)

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)

24/8/94

each of the judgments in Harriman's case and in
footnote No 10 have referred to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pfennig v The Queen

Details

AGLC: Pfennig v The Queen [1994] HCATrans 442
Case: [1994] HCATrans 442
Decision Date

CaseChat Overview and Summary

This case, heard in the High Court of Australia, concerned an appeal by Pfennig against a conviction. The core of the dispute revolved around the admissibility of similar fact evidence presented during the trial.

The legal issues before the High Court included whether similar fact evidence could be admitted solely on the basis that it demonstrated a criminal disposition on the part of the accused, or if its probative force must arise from some other characteristic of the offending. The Court was also required to consider the application of established principles, particularly those derived from cases such as *Boardman's case*, in assessing the admissibility and probative value of such evidence.

The Court's reasoning, as indicated by the submissions presented, focused on the principle that similar fact evidence is only admissible if its probative force arises from circumstances beyond merely showing a criminal disposition. This means the evidence must possess a unique or distinctive quality, often referred to as a "signature quality" or "modus operandi," that links the uncharged conduct to the charged offence in a way that is highly probative of the accused's identity or guilt. The Court considered various authorities, including Canadian and American jurisprudence, to support the proposition that the similarities between offences must be sufficiently striking or idiosyncratic to justify admission, rather than relying on a general propensity to commit crimes.

Orders