Pfennig v The Queen

[1994] HCATrans 440

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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

Pfennig(2) 1 23/8/94

AT ADELAIDE ON TUESDAY, 23 AUGUST 1994, AT 3.25 PM

Copyright in the High Court of Australia

MS M.E. SHAW:  May it please the Court, I appear with my

learned friend, MR C.J. KOURAKIS, for the

appellant. (instructed by McGee & Associates)

MR J.J. DOYLE, OC, Solicitor-General for the State of South

Australia: If the Court pleases, I appear with

MS A.M. VANSTONE, OC and MR A. MOFFA for the

respondent. (instructed by the Crown Solicitor for

South Australia)

MASON CJ:	Ms Shaw?
MS SHAW:	It is our submission, if it please the Court, that

what we have called the Hyland evidence, in our

written submissions, was inadmissible as a matter

of law because the basis for its admission depended

upon propensity reasoning. we submit that such

reasoning is prohibited in accordance with the

principles in Makin's case and as applied in this

Court, in particular since Markby's case.

The issue in this case was the identity of the

offender. The Hyland evidence was an admitted

offence of the abduction and sexual assault of a
13-year-old boy committed by the appellant

12 months after the offence in question, namely the

murder of Michael Black. Its circumstances were

particularly abhorrent, but the learned trial judge

decided that he was entitled to admit the evidence as propensity evidence. He ruled that evidence of

criminal disposition was capable of achieving of
itself the high degree of probative force required
for admission.

We submit that the authorities have, until this decision, insisted that probative force arise

in some other way than as showing a criminal

propensity. In reaching his conclusion the learned

a period of three weeks, rather than rely upon the	judge considered it necessary to hear evidence for
depositions because of the factual conflicts and competing inferences that arose from the Crown
evidence itself.

His Honour ruling, if I can turn to that,

appears in book 8 of the appeal books at page 1398.
At page 1406 of the appeal book, line 25,
His Honour set out what he considered to be the
relevance of the Hyland evidence. At line 25

His Honour ruled that:

The Hyland evidence shows not merely that

the accused was of homosexual orientation but

that he had a disposition for young boys and

Pfennig(2) 2 23/8/94

was willing to pursue it by the extreme means

of kidnapping and rape.

He went on to refer to the fact that he had a van

at Murray Bridge that he had used in the abduction

of Hyland, that he had the opportunity to abduct

Michael Black, and concluded that:

The relevance of his criminal propensity to

the question whether he was Michael Black's
abductor is obvious.

In his ruling at page 1402, at line 23, His Honour acknowledged that the high test of

admissibility for similar fact evidence as it has

been set out in Hoch v The Queen. However, rather

than approaching the determination of the

admissibility of the evidence upon the basis of

Makin principles, His Honour considered whether mere propensity evidence could be relevant. At page 1407, line 25, His Honour concluded that for

the Hyland evidence to be admissible it was

unnecessary to point to relevance in some other way

than as mere propensity and he specifically said

that it was not:

necessary to point to some additional

characteristic or application of discreditable

propensity evidence to demonstrate its

relevance to the crime charged.

His final conclusion as to the probative force and

relevance of the evidence is set out at page 1410,

line 28, where His Honour said:

I do not think there is a rational view of all

of this evidence that is inconsistent with the
guilt of the accused. 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.

In that passage His Honour clearly relies on the

specific propensity to kidnap and sexually assault

young boys as the basis for his improbability

reasoning. we point out at the outset that we are

Pfennig(2) 23/8/94

familiar with cases when coincidence reasoning is

based upon the occurrence of a series of events and

that is the relevance usually of similar fact

evidence. The coincidence in this case that is

raised is based purely upon propensity reasoning
from the other similar fact to pose the question as
to the likelihood of another person with the same
propensity at the reserve.

His Honour, during the course of his reasons, considered that there were other matters he could

rely on to add force to the propensity reasoning

and the improbability reasoning that I have taken

the Court to.

At page 1410 of the ruling, line 5, His Honour

referred to:

the very unusual nature of the particular

crime -

and, again, at line 23 he referred to it as being:

quite an unusual crime in this community.

His Honour was using, "unusual" in the sense of relatively infrequent. That was the interpretation

His Honour Justice Duggan placed upon it when he

considered His Honour's ruling in the Court of

Appeal.

His Honour relied on this feature of the offence, that is, its relative infrequency, to

conclude that less additional relevance was

necessary or less additional evidence was needed to

establish a connection and to achieve the high

degree of probative force required for admission.

His Honour, in fact, relied on the unusual

nature of the crime to postulate it as a similar

fact itself, at page 1412 line 15.	He said,
commencing at line 12:

However, it could also be said that the very

unusual type of crime in this case itself

provides, exceptionally, a sufficient "similar

fact" which, coupled with the other linking

factors to which I have referred, justifies

the admission of the propensity evidence.

At line 22, His Honour relied on the claimed "false

trail with the bicycle" that was said to exist both

at the Hyland offence and at the offence in

question, together with the general similarity

between the offences; However, His Honour made it

plain at page 1411, line 15, at the commencement of

the paragraph that in accordance with the Crown

Pfennig(2) 4 23/8/94

concession that he did not consider it could be

regarded as a "similar facts" case. It is our

submission that His Honour was thereby

acknowledging that any similarities between the

offences could not constitute sufficient probative

force for admission on their own and, hence,

His Honour's resort to the propensity reasoning

process.

It is our submission that this appeal raises

two separate issues in relation to the correctness

of the ruling as set out in our grounds of appeal

in book 9 at page 1649. Firstly, without going to

the grounds, but just summarizing them; where there

is a matter of law that propensity reasoning is

ever permissible as a basis for admission of

similar fact evidence and, secondly, what factual

foundation must exist before this kind of evidence
can be safely admitted.

The specific issue raised by the admission of

the Hyland evidence is what is the correct approach
to the determination of probative force where the

issue is identity. The appellant submits that even
in those cases which might be said to have taken a

more liberal approach to Makin principles, it has been consistently maintained that where the issue

is identity, the objective facts and circumstances

of the other offending, and the offence in
question, must point convincingly to the accused.

Where the issue is identity, we say that the

approach has been to consider first of all whether

there are similarities between the circumstances of

each of the offences; secondly, whether those

circumstances point uniquely to one person and,

thirdly, whether there is evidence independent of

the similarities to link the accused with one or
more of those offences. Finally, to invite the

jury to conclude that the accused must have

committed all the offences.

We submit that where identity is in issue, it

is not just a question of the evidence being

capable of showing that the same person probably

committed all the offences, rather, it must show

that no one else could have. We submit that

expressions such as, hallmark, signature, stamp and

badge, have been consistently invoked to identify

the high degree of probative force required.

The appellant relies, in our submission, upon

the approach of this Court in Sutton's case and

without reading from Sutton's case we point to what

His Honour Justice Brennan said at page 549 when

His Honour drew the important distinction between

reasoning from the commission of other offences in

Pfennig(2) 23/8/94

themselves and reasoning from the facts and

circumstances surrounding each offence.

We say that the fact of the Hyland abduction

in itself as an offence was not a similar fact that

was capable of stamping the appellant with another

crime. Indeed, His Honour the former

Chief Justice Gibbs at page 535 in Sutton expressly
identified the application of the relevant

principles to common and uncommon crimes.

His Honour stated that it was necessary to consider

whether the evidence disclosed a significant

deviation from the norm for the commission of

criminal acts of that type, whether they be common

or uncommon.

In the same case Your Honour Justice Deane, at page 557, explained the difference which we rely on between mere propensity and similar fact evidence

by way of example. Your Honour said that evidence

of mere propensity was evidence which showed that

the accused was the sort of person who would commit

a crime and that evidence of propensity to a kind

of crime was prohibited. Your Honour stated that

on the other hand, where the commission of a crime had occurred in a particular manner, it is capable

of achieving probative force because, in the

absence of extraordinary coincidence, it shows that

the same person must have committed both.

Your Honour Justice Dawson, at page 567 in

Sutton, agreed with that approach upon the issue of

identity, and at page 564 Your Honour

Justice Dawson expressed the test for the degree of probative force as being the same test that applies

in circumstantial evidence, an approach which was

subsequently adopted by a majority of this Court in

Hoch and since. It is our submission - - -

DAWSON J: What is propensity? Perhaps I will rephrase

that. Of course, mere propensity, that is

propensity which is of a general sort, is not

sufficiently probative, but when the propensity is

if a particular sort, which you would call similar

facts, then of course, it may be sufficiently

probative. Makin's case which you rely on is

nothing more than a case of propensity, but a

propensity of a particular kind - baby farming -
but you still talk in terms of propensity and it is

the propensity which is probative ultimately,

surely.

MS SHAW:  Your Honour, in our submission, the distinction

that we are drawing is between propensity that is

shown incidentally in the proof of the facts and circumstances and propensity, on the other hand, which is relied on as the basis for the reasoning.

Pfennig(2) 6 23/8/94

DAWSON J:	I do not understand that.
MS SHAW:	Your Honour, in Makin's case, for example, the

coincidence of all of the circumstances establish

overall that the accused had a particular criminal

disposition. On the other hand, if you say, as in

this case, one offence shows a propensity for a

kind of crime and you use that kind of crime

inference you have drawn to reason to the next

crime, that is, because he is this sort of person

he would have committed this sort of crime - - -

DAWSON J: That is a reasoning process which the cases

support. In Makin's case you reason from the fact

that these people baby farmed in a particular way,

had a propensity, that is, to baby farm in a

particular way. When you discover someone else

baby farming in the same way with the exact degree

of particularity, then the propensity is obviously

relevant. But, a mere general propensity to commit

crime or even to commit a particular crime may not

be sufficiently probative, but it is all a matter

of propensity.

MS SHAW: With respect, our submission is that the

distinction Your Honour has drawn is the propensity

to commit a crime in a particular way.

DAWSON J: Yes.

MS SHAW:  Which is established by the facts and

circumstances, not by a chain of reasoning process.

That is, the probative force of the evidence does

not derive because you infer a propensity from one

crime to a class of crime and then use that

inference to support the implication of the accused

in another crime.

DAWSON J: What you do is, you say the person has a

propensity to commit a crime in a particular way.

That is just propensity, and if it is particular

enough, then it may be sufficiently probative.	That is what it is. Indeed, you know, really,
although it is a matter of law, to use the
inaccurate phrase, "similar fact evidence", really
it is nothing more than an example of the ordinary
discretion - although it is not a discretion, I
agree - to exclude evidence where the prejudicial value exceeds its probative effect. That is at the
base of all of this. So that if the propensity is
such that although it is probative, it is not
sufficiently probative, you exclude it. But if the propensity is such as to be sufficiently probative
to outweigh its prejudicial effect, then you admit
it. I thought this was all established in
Boardman's case. Lord Hailsham was the only one

Pfennig(2) 23/8/94

who spoke about the forbidden chain of reasoning.

The others rejected it.

MS SHAW:  Your Honour, I was going to come to Boardman and

deal with Your Honour's approach to Boardman

because it will be my submission that all of the

Law Lords maintain the application of Makin

principles, and Lord Cross himself, although he

identifies Stratton's case as a propensity for a crime of a particular kind, does so on the basis

that it is the peculiar features of the two

offences that effectively establish the propensity.

In other words, the reasoning is based upon the

facts and circumstances of the offence, not upon a

reasoning process which relies on an inference of

propensity for a kind of crime.

DAWSON J: But it is the facts of circumstances which show

the particular propensity.

MS SHAW:  Incidentally. I will come to Boardman if I can,

and the Law Lords, Your Honour, because it will be

my submission that, indeed, all of the Law Lords

maintain Makin principles, including Lord Cross.

If I can just return briefly to my submissions

on the test of probative force, because it is our

submission that the need to adopt a propensity

reasoning process can never achieve at the required

degree of probative force for admission and, for

that proposition, we indeed rely on what

Your Honour Justice Dawson said in the case of B v

R, in the joint judgment with Her Honour

Justice Gaudron. B v Rison our list of

authorities, No 4, (1992) 175 CLR 599. At page 617

in the joint judgment Your Honour Justice Dawson,

at the bottom of the page, said this:

Evidence that an accused has committed

offences other than those with which he is

charged ought not be admitted if it tends to

show only that the accused has a propensity or

disposition to commit criminal offences of a

particular type or generally. If a propensity
or disposition of that kind is all that the

evidence tends to show, then its prejudicial
nature must be greater than any relevance

which it might have. To admit such evidence

would be to invite the jury to proceed upon

prejudice or suspicion rather than proof. But
if the evidence of other offences goes beyond

showing a mere propensity or disposition to

commit crime or a particular type of crime and

points in some other way to the commission of
the offences in ·question, then it will be
admissible if its probative value for that

purpose outweighs its prejudicial effect.

Pfennig(2) 23/8/94

So, it is our submission that if one is relying - and we submit that that is as we have set out in

our written submissions, a statement of principle

that has been repeated often in this Court, and

what we contend is that if you are inferring a

propensity based on the kind of crime or the type
of crime, then you immediately embark upon

propensity reasoning in the impermissible fashion,

and we say that, in this case, that is precisely

what has happened, that His Honour is relying on

the type of crime to reason as to the sort of
person the appellant is and then postulate the
existence in the community, at Murray Bridge at

that time, of how many other persons might have the

same kind of propensity.

In determining probative force when the issue

is identity, it is our submission that, as

His Honour Justice Brennan said in Sutton itself, at page 549, one must keep steadily in mind the

issue, and His Honour went on to draw a distinction

between probative force when the issue is identity

and when it might be some other issue.

In Harriman's case, No 2 on our list of

authorities, Your Honour Justice McHugh at

page 633, explained how the test of probative force
depended on the nature of the evidence involved,
the issue to which it goes and the other evidence

in the case. It is our submission that Sutton, and

cases such as Thompson, in the High Court, No 7 on

our list, and Harriman, illustrate the way in which

probative force is evaluated as a function of a

specific issue and the other evidence in the case. In Harriman, the issue was the nature of the

relationship between the accomplice Martin and the

accused; that is, the likelihood of them acting in

concert, given their prior dealings. The degree of

probative force required for evidence of other

offending to be relevant to the nature of the

relationship may be more easily satisfied and, in

that sense, relationship evidence can either

explain conduct or provide motive for an offence, but we say that there is an important distinction

between evidence of motive and the use that could

be made of similar fact evidence.

Evidence of another criminal offence might be

said to show the sort of person somebody is and

thereby arguably supply a motive or an explanation

as to why it is said the accused might commit the

same kind of crime against a different or unrelated

victim; however its relevance depends upon the

unwarranted assumption that the accused might

behave in the same way towards another individual.

It is that assumption, quite apart from the

Pfennig(2) 9 23/8/94

prejudicial component of the evidence, which the

Makin principle, in our submission, attempts to

meet.

If I can then perhaps turn to Board.man's case,

No 10 on our list. It is our submission that

Board.man's case did not represent any radical

change in the law or any change at all, except in

so far as it confirmed that there was no limitation

of categories as to the full admissibility of

similar fact evidence. We rely on His Honour
former Chief Justice Gibbs in Sutton, at page 533

line 8, where he specifically stated that Boardman

did not represent a radical change. We have set

out in our written submissions a discussion of the

effect of each of the judgments in Boardman,

commencing at paragraph 50, and we have relied on

the discussion of Board.man's case by His Honour

Justice Sopinka in the Supreme Court of Canada, in

the case of R v B (CR), (1990) 55 CCC (3d) 1, and

we have adopted those arguments and that reasoning

in paragraphs 50 and 51 of our submissions.

It is our submission that each of the Lords in

Boardman affirmed Makin principles, and if I can

first of all perhaps turn to Lord Morris.	In that
case, of course, the probative force of the
evidence of each of the boys, who were the subject	of the offences, arose from the similarities in
their accounts in the absence of collaboration
which was relevant to prove the commission of the
acts charged. First of all, Lord Morris at
page 438F, acknowledged the words of
Lord Herschell LC in the Privy Council in Makin's
case, and says they:

have always been accepted as expressing

cardinal principles.

He restates the proposition that is oft cited from

Makin's case. At page 439F, His Honour pointed out

that it follows on the basis of the highest

standard of degree of probative force required,

that the:

evidence must be related to something more

than isolated instances of the same kind of

offence -

which we say is significant in the context of this

case because we only have one other offence which

is relied upon as a basis for the reasoning. At

page 441D, His Honour applies, in our submission,

the Makin principles to the facts of the case and

makes it plain that what must be considered are the

facts and whether or not, as he goes on to say:

Pfennig(2) 10 23/8/94

there is such close or striking similarity or

such an underlying unity that probative force

could fairly be yielded.

Lord Hailsharn at page 450H, through to page 452,

having stated the Makin principles, discusses the
rationale for the principle and, in particular, the
arguments that on the one hand at D it is said that

prejudicial evidence of that sort is irrelevant; on

the other hand, if it is relevant, then it can

never achieve the required degree of probative

force required for admission.

At page 4530 and E, His Honour refers to the

kinds of factors that can be relied on to determine

whether the evidence does achieve probative force,

namely:

the number of instances involved, any

interrelation between them, the intervals or

similarities of time, circumstances and the

details and character of the evidence.

And he goes on to say, at F:

It is perhaps helpful to remind oneself that

what is not to be admitted is a chain of

reasoning and not necessarily a state of

facts. If the inadmissible chain of reasoning

is the only purpose for which the evidence is

adduced as a matter of law, the evidence

itself is not admissible. If there is some

other relevant, probative purpose than for the

forbidden type of reasoning, the evidence is

admitted, but should be made subject to a

warning from the judge that the jury must

eschew the forbidden reasoning.

DAWSON J:  Now, is there anyone else that says that?

MS SHAW:  Your Honour, no one else specifically refers to

the chain of reasoning, but everybody else refers

to a reliance on the facts and circumstances and a

reliance on the similarities of the offences to

assess probative force.

DAWSON J:	Of course.
MS SHAW:	And our attack on the learned judge's approach

here is that he is not relying on the facts and

circumstances of each of the offence; he is relying

on inference as to a type of crime and then

adopting a chain of reasoning approach that is

precisely that which.Your Honour - - -

DAWSON J:  I can understand that objection. What you say

that the trial judge here did was to take a

Pfennig(2) 11 23/8/94

propensity to commit a particular type of crime and

say that because this other crime was of that type

therefore the accused must have committed it.

MS SHAW: That is so.

DAWSON J:  And it may well be that he was incorrect in doing

that because the propensity was not a specific

enough type, or the evidence did not prove a

specific enough propensity. But if you then add

facts to that which show a similarity between the

previous offence committed by - it was not
previous, in this case, the other offence committed
by the accused and the crime in question, then it

is not a matter of a chain of reasoning; you are

still saying it is a matter of propensity, but the

propensity in this case, when you prove that, is

sufficiently similar to the propensity of the man

who committed the crime in question and therefore

the evidence may be admissible, but it is still a

matter of propensity.

MS SHAW:  Your Honour, we do not dispute that, based on

facts and circumstances, both offences can be said

to incidentally disclose a like propensity. What

we object to is the process of reasoning where you

rely on the inference only as to the type of crime,

that is the class of crime, and rather than the

crime having been committed in a particular way

which, of course, is a function of its facts and

circumstances.

DAWSON J:  I will not go over this again, but what you

really are saying there is the propensity in that

event does not have a sufficient probative force to

overcome its prejudicial values, so it is excluded.

MS SHAW:  Yes.

DAWSON J: But it is a question of whether it does or it

does not, but still in the end you are relying on

propensity. There is no forbidden chain of

reasoning whereby you cannot say that you are

relying on propensity. You introduce new facts and

you say you are relying on those to the exclusion

of propensity. That just does not make sense to

me, anyway.

MS SHAW:  Your Honour there are, in my submission, two

separate aspects to what we are considering and if

the first one, which I contend for, is correct then

it does not matter how many facts and circumstances

you seek to rely on, you cannot bolster up the

approach of relying on the type of crime

because - - - ·

Pfennig(2) 12 23/8/94

DAWSON J: That is exactly what you do do. If you take

Makin's case, which is the beginning of all of this, it was the similarity between the crime committed previously and the crime in question which led to the introduction of the evidence of the previous crime, was it not, in Makin's case?

MS SHAW:  The issue in Makin's case was accident.

DAWSON J: Yes, but that is a red herring. The fact is that

what was admitted was evidence of previous crimes,

was it not?

MS SHAW:  What was admitted was - - -

DAWSON J: Previous offences.

MS SHAW:  - - - evidence of facts, namely, a number of

facts: the bodies were buried in houses that the

accused had lived in, that they had received the
babies without proper moneys, that there were a

number of babies that were received in

circumstances which the number of incidents and the

number of facts together indicated could not be

explained on the basis of coincidence.

DAWSON J: But what was admitted was evidence of previous

offences, was it not?

MS SHAW:  The previous offences - when Your Honour says

"previous offences", in my submission what is

submitted - - -

DAWSON J: Let us just take it step by step. What was

admitted was evidence of previous offences, was it

not?

MS SHAW:  Not as evidence of previous offences.

DAWSON J: Well, that is what they were, were they not?

MS SHAW:  In due course that was the inference to be drawn.

DAWSON J: Well, maybe, that is what they were. And the

reason why that evidence was admitted was because

those offences bore a similarity, a close

similarity, to the offences which were to be proved

in the case - well, the one offence.

MS SHAW:  The facts did.

DAWSON J: Yes.

MS SHAW:  The facts of the offences, but not the crime of

concealment of a baby.

Pfennig(2) 13 23/8/94

DAWSON J: Offences are only facts after all. So what you

are proving is that the accused had, because of

what had happened previously, had a propensity -

like do not refer to offences - to do something in

a particular way, but it is a propensity and,

therefore, when you see something on a subsequent

occasion done in that particular way the propensity

is probative of the fact that they are the persons

who committed the subsequent offence, but it is a

propensity to do things in a particular way.

MS SHAW:  It is our submission that the critical distinction

Your Honour is drawing is the propensity to commit
an offence in a particular way, because when

Your Honour says "in a particular way" it is

relying on the modus operandi or the circumstances

of that particular offence.

DAWSON J: Of course. A propensity merely to commit crime

in general is not enough.

MS SHAW:  Or a type of crime.

DAWSON J: That is probably so too. But a particular type

of crime in a particular way, that is different.

MS SHAW: Yes, that is so.

DAWSON J: But it is still propensity.

MS SHAW:  Perhaps the only disagreement is that we say it is

what is incidentally proved and cannot be relied on

- it is incidentally approved in that case. The

case that we are attacking is when there is

reliance on a type of crime, or a kind of crime,

from which one can only reason based on propensity,

based on a reasoning process.

DAWSON J: There is not much between us. It is just your

insistence that the evidence is not evidence of

propensity because it has a certain particularity	about it, that is the only difference between us.
I say it is, you say it is not.

MS SHAW: Perhaps if I can just complete the references to

Boardman's case to illustrate - perhaps Your Honour

Justice Dawson and I may not be too far apart.

DAWSON J:  I think not.

MS SHAW: Firstly, like the other Lords, Lord Hailsham

assessed probative force on the basis of the

similarities between the accounts of the boys.

Lord Salmon, in Boardman's case, said at page E,

fourth line:  ·

The principles upon which such evidence -

Pfennig(2) 14 23/8/94

that is evidence disclosing that a man of bad

character with disposition to commit the kind of

crime with which he is charged -

should be admitted or excluded are stated with

crystal clarity in the celebrated passage from

the judgment -

in Makin's case and it is our submission that it

was only Lord Cross who expressed the view that

propensity may have relevance as such. At page

456, at the bottom of the page, His Honour relied

on Straffen's case to illustrate his proposition

and, at page 457A, His Honour set out the

circumstances of each of the offences in question

and described each of them as having "the same

peculiar features". We say that it was the

features of the offences, and the coincidence that

no two people would have independently committed

the offences in the same way, that that

demonstrated the probative force of those facts in

Straffen.

I put to the Court our submission is the

distinction between a criminal disposition which is

disclosed incidentally and a reliance upon a

criminal disposition per se. We point to

His Honour Lord Cross, at page 456G, where he acknowledged the existence of the general rule at

the commencement of his speech, and then at

page 459G, he says that:

If and so far as this is true it is a reason

for doubting the wisdom of the general rule

excluding similar fact evidence. But so long

as there is that general rule the courts ought

to strive to give effect to it loyally and

not, while paying lip service to it, in effect

let in the inadmissible evidence by trying all

the charges together.

On the particular facts in Boardman itself, at

page 460E, two lines above:

On the other hand, I think that when you have

so few as two instances you need to proceed

with great caution. It is by no means unheard

of for a boy to accuse a schoolmaster falsely

of having made homosexual advances to him. If

two boys make accusations of that sort at

about the same time independently of one

another then no doubt the ordinary man would

tend to think that there was "probably

something in it." But it is just this

instinctive reaction of the ordinary man which

the general rule is intended to counter and I

think that one needs to find very striking

Pfennig(2) 15 23/8/94

peculiarities common to the two stories to

other. justify the admission of one to support the

So it is the appellant's submission that on the facts in Boardman itself, His Honour Lord Cross

approached the determination of probative force

upon the basis of the similarities between the

offences and concurred with the other Law Lords in

concluding that although it is very much on the

borderline there were sufficient similarities for

admission.

I also take the Court to the basis upon which

Lord Wilberforce assessed probative force, at page 4440, he said:

The basic principle must be that the admission

of similar fact evidence (of the kind now in

question) is exceptional and requires a strong

degree of probative force. This probative

force is derived, if at all, from the

circumstance that the facts testified to by

the several witnesses bear to each other such

a striking similarity that they must, when

judged by experience and common sense, either

all be true, or have arisen from a cause

common to the witnesses or from pure

coincidence.

So, in our submission, Lord Wilberforce also relies on the facts and circumstances in the case. I have summarized in the written submissions - I have set

out the balance of the relevant passages.

After Boardman's case, the House of Lords, in

a case of DPP v P, (1991) 2 AC 447, No 11 on our

list of authorities, cited at length from the

various speeches in Boardman's case. The issue in

P's case was related to the probative force in the

context of what we call "a relationship case", and the recognition that in a relationship case the	test of probative force is more easily satisfied.
The facts of P's case suggested the consistent form
of domestic relationships involving both daughters
and there was a connection in time and
circumstances between the offences against both
daughters.

Lord Mackay, at page 462E, stated the way in

which the relationship evidence might derive
support, and considered that it was not just in

cases - what have been described as "striking

similarity" but sufficient connection in time and

circumstances. However, in our submission,

Lord Mackay draws an important distinction between

Pfennig(2) 16 23/8/94

probative force in that kind of case and where the

issue is identity. He goes on to say:

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.

Lord Mackay says it is not necessary to transpose

that kind of requirement into the present

situation, which was very much an identity case.

At paragraph 64 of our written submissions we

have referred to the New Zealand case of

R v McIntosh, (1991) 8 CRNZ 515, and in particular

in the judgment of His Honour Justice Hardie Boys

at page 517, when identity was the issue in that

case, His Honour quoted the very passage from

P's case to which I have taken the Court, and then in the middle of the page went on to say:

Thus while "striking similarity" is not the essential qualification for admitting

similar fact evidence, and the inquiry is as

to cogency relative to prejudice, where the

purpose of the evidence is to establish

identity, the only evidence that is likely to

have cogency is evidence that the offence or

the way in which it was committed point

convincingly to the accused. That is the

essence of it, whether one uses the term

"Striking similarity" or "signature" or

"special feature" or some other -

and he goes on to say that "striking similarity" is

really expression of convenience, we say to
highlight the high degree of probative force

required where the issue is identity, and the need

for that probative force to be assessed upon the

basis of the circumstances and facts of each

individual case.

There are other New Zealand cases, but when

the issue has been identity we have included on our

list of authorities, No 23, R v Accused. In our

written submission, at page 40 paragraph 63, we

refer to the reliance by Lord Mackay in P's case on

the case of Huijser in New Zealand, which was not

an identity case. But even so the ultimate test

applied by the Court was, once again, the test of

"striking similarity" based on the circumstances of

each of the offences .. As I say, we do not contend

that "striking similarity" means any more than what

His Honour Justice Hardie Boys says in the New

Zealand case of McIntosh.

Pfennig(2) 17 23/8/94

If I can perhaps turn to the Canadian

position: in Canada in Morin's case,

(1988) 44 CCC (3d) 193 - which is No 17 on our list

of authorities - a judgment of the Supreme Court of

Canada. The Supreme Court specifically in that

case considered the admissibility of propensity

evidence upon the issue of identity. The accused

was charged with the murder of a 9-year-old child
who had been sexually assaulted and repeatedly

stabbed. The Crown case rested primarily upon

circumstantial evidence. The defence of the

accused was that of alibi, but in addition the

theory of the defence was that the accused

committed the offence - if he committed it he was

not guilty by reason of insanity. To that end the

defence called a psychiatrist and psychologist who

testified that the accused suffered from

schizophrenia.

The psychiatrist was cross-examined by the

Crown as to whether or not the illness would demonstrate a propensity for this particular crime,

and he testified that it was possible with this

illness for the accused to have committed the crime

and, further, that only a very small number of

people in the population were capable of such a

crime. The jury were directed that the psychiatric

evidence was admissible only on the issue of the

defence of insanity, and could not be used as

evidence of guilt. This was a Crown appeal against

that direction.

The Supreme Court held that the direction of the trial judge was proper, and we rely on the

approach of His Honour Justice Sopinka at page 215
of the judgment.

MASON CJ:  But his approach has not been accepted in Canada,

has it? His approach has not been accepted,

ultimately, in Canada?

MS SHAW:  In my submission it has, Your Honour.

MASON CJ: Has it? I thought he dissented in the latest of

the cases, which was regarded as setting out the

principles of law in Canada.

MS SHAW:  Your Honour, in our response to the particular

submissions of the respondent, we refer to the two

later cases which, we say, re-establish or make it

plain, that the law in Canada has not changed and

indeed Her Honour Justice McLachlin, whose judgment

was in the majority, in the later case herself came

back to "striking similarity".

Pfennig(2) 18 23/8/94

MASON CJ: 

Would it not be of more advantage if we went to

the latest case rather than trace the development
of what has happened in Canada?

MS SHAW: 

Your Honour, the later cases do not deal with the

issue of identity and the topic of an abnormal

propensity in a group situation. The later cases

that I refer to are those which deal with the

application of Makin principle and whether or not

it is permissible to be admissible - whether the

principle is it must be relevant in some other way

than as mere propensity. So, I was intending to go

to those later cases to show that that is still the

position. Indeed, His Honour Justice Sopinka

joined with the Chief Justice in the latest case

referred to in our response.

The latest case, Your Honours, we refer to in

paragraph 3.1 of our response. It is R v B(FF),

(1993) 79 CCC (3d) 112. His Honour

Chief Justice Lamer, who was dissenting with

His Honour Justice Sopinka in the case of Morin gave the judgment of the court in F's case and at

page 119 - and this was a case that was very much

directed towards evidence of relationship within a

family and the abuse within that family. At page

119f, His Honour the Chief Justice said:

There was no instruction, as in my

opinion the law requires, that this evidence not be relied upon as proof that the accused is the sort of person who would commit the

offence charged and on that basis infer that

the accused is in fact guilty.

His Honour then referred to His Honour

Justice Sopinka in the earlier case of R v D, and

then at page 120c said:

The theory of the Crown as put to the

the jury to infer Mr B's guilt of the counts	jury by the trial judge was an invitation to
in the indictment on the basis that he was a
person with the propensity for cruelty and
violence to children. In short, it was an
invitation to the jury to do exactly what the
law prohibits. Not only was there no
instruction that this should not be done, as
in my view the law requires~ there was, in fact, an invitation to do exactly what the jury ought to have been told, in the clearest
possible terms, not to do.

Working backwards to the case in which Her Honour

Justice McLachlin delivered the judgment, a case of

R v C (Mll), 63 CCC (3d), in that judgment at

Pfennig(2) 19 23/8/94

page 392c, Her Honour Justice McLachlin, delivering

her judgment, said:

This court addressed the principles

governing the admissibility of evidence of

similar acts in R v B (CR) -

the other case.

Evidence as to disposition, which shows only

that the accused is the type of person likely

to have committed the offence in question, is

generally inadmissible. Such evidence is

likely to have a severe prejudicial effect by

inducing the jury to think of the accused as a

"bad" person. At the same time it possesses

little relevance to the real issue, namely,

whether the accused committed the particular

offence with which he stands charged. There

will be occasions, however, where the similar
act evidence will go to more than disposition,
and will be considered to have real probative

value. That probative value usually arises from the fact that the acts compared are so

unusual and strikingly similar that their

similarities cannot be attributed to

coincidence. Only where the probative force

clearly outweighs the prejudice, or the danger

reasons, should such evidence be received. that the jury may convict for non-logical

If I can perhaps then return to Morin's case and

the passage I refer to, to support my contention

was to effectively place the accused in a class of	that the reasoning of the learned trial judge here.
potential offenders rather than rely on the circumstances to point specifically to one person,
and by placing the accused in a class of persons, that is persons who have propensity to commit that
type of crime, then the only coincidence that has then been raised is the likelihood of there being someone else with his propensity for that type of
crime.
We say that the vice of such an approach can be demonstrated in this way. Here is a man who is
41 years of age, with children, no suggestion of
any past offending, he commits this offence ..... 12 months later. The propensity evidence is used to infer that he has a propensity for a type of crime,
it is then used to infer that he would have had it
12 months before. So he comes into the
consideration of this case as someone not with a
presumption of innoce~ce, we say, but with a
presumed propensity to abduct and molest.

Pfennig(2) 20 23/8/94

Then the jury have to consider was there

someone else at Sturt Reserve who either had in the

past manifested that propensity or, we would say,

on His Honour's reasoning, might potentially

manifest it in the future, just as the appellant

had done. We say that that demonstrates the

impropriety of this process of reasoning,
attempting to have as its foundation inferences of

propensity from classes of crime and not

comparisons of facts and circumstances and

assessments of the coincidence of those various

facts and circumstances.

We rely on Morin's case and what His Honour

Justice Sopinka said, at page 215, on this topic of

an inference that only goes so far as to place an accused person into a group of potential suspects

and then reason from having placed him in the group

to his guilt. At page 215, His Honour

Justcie Sopinka says:

In similar fact cases it is not

sufficient to establish that the accused is a

member of an abnormal group with the same

propensities as the perpetrator. There must

be some further distinguishing feature.

Accordingly, if the crime was committed by

someone with homosexual tendencies, it is not

sufficient to establish that the accused is a

practising homosexual or indeed has engaged in

numerous homosexual acts. The tendered

evidence must tend to show that there was some

striking similarity between the manner in

which the perpetrator committed the criminal

act and such evidence.

His Honour refers to the example in Boardman of the

confirmatory evidence corning from the man wearing

the Red Indian head-dress. Further, at page 218,

in determining the issue of the admissibility of

the psychiatric evidence, His Honour stated the

test in the third paragraph as being that:

in order to be relevant on the issue of
identity the evidence must tend to show that

the accused shared a distinctive unusual

behavioural trait with the perpetrator of the

crime. The trait must be sufficiently

distinctive that it operates virtually as a

badge or mark identifying the perpetrator.

DAWSON J: What is the difference between an "unusual

behavioural trait" and a propensity?

MS SHAW: Again, Your Honour, the "unusual behavioural

trait" is established by the facts and

circumstances, not by propensity for a kind of

Pfennig(2) 21 23/8/94

crime. But, in this case, perhaps just to take up

the application to this case, what we had was,

effectively, a boy missing. No one knew anything

about the circumstances - well, there was no

evidence - as to the abduction, the state of his

body, the actions of the abductor, it was all a

matter of inference. So, the starting point for a
consideration of the other offence could only be an

inference as to the class of person, if you like.

DAWSON J: Yes, there is no question that you have a good

argument. In this particular case there was not a

distinctive "unusual behaviourial trait" such as to

make the evidence sufficiently cogent.

MS SHAW:  Yes. I think that is where Your Honour and I are

really not at odds because - - -

DAWSON J:  I really cannot see the difference between a

distinctive "unusual behaviourial trait" and a

propensity.

MS SHAW:  Yes. All I really am submitting is that if the

distinctive "unusual behaviourial trait" points

only to him then it is probative.

DAWSON J:  We are going over the same ground now.

MS SHAW: Yes, we are.

MASON CJ:  we might as well adjourn now.

AT 4.30 PM THE MATTER WAS ADJOURNED

UNTIL 9.45 AM WEDNESDAY, 25 AUGUST 1994

Pfennig(2) 22 23/8/94