Pfennig v The Queen

[1994] HCATrans 234

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al6 of 1993

B e t w e e n -

DIETER PFENNIG

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 MARCH 1994, AT 11.27 AM

Copyright in ·the High Court of Australia

Pfennig 1 11/3/94

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

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

applicant. (instructed by McGee & Associates)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

May it please the Court, I appear with my learned

friend, MS A.M. VANSTONE, OC, for the respondent.

(instructed by P.J.L. Rose, QC, Director of Public

Prosecutions (South Australia))

DEANE J:	Yes, Ms Shaw?
MS SHAW:	The special leave question in this case is

essentially whether similar fact evidence can ever

be admissible solely to show mere propensity from

which the identity of the offender can be

established. The other evidence in this case, that

is, the applicant's presence at the reserve and his other activities, could never be enough to make out the case against him. It is our submission that

there is a conflict between the approach of

Your Honour Justice Dawson in Harriman and other members of this Court, in particular, Your Honour

Justice Deane in Sutton's case.

Your Honour Justice Dawson in Harriman, at

page 600, said that on an analysis of the cases the

attempts to avoid the forbidden chain of reasoning

were unsuccessful and that the propensity evidence

was admitted because of its relevance as propensity

evidence. On the other hand, the proper use of

similar fact evidence which is not based upon

propensity reasoning we say is as described by

Your Honour Justice Deane in Sutton at page 557,

namely that the probative force of such evidence

arises from similarities between the other offences and the offence charged which is such as to warrant

in the absence of extraordinary coincidence the

conclusion that the same person committed all

offences. It was the approach of Your Honour

Justice Dawson in Harriman that was applied -

DAWSON J:  I do not see any necessary conflict between those

two statements. You can place evidence on the

evidence of propensity, but you can show that

propensity has sufficient relevance by pointing to

things like similarity of design.

MS SHAW:  Your Honour, that is so, in our submission, in

certain kinds of cases, but when the issue is

identity it is the applicant's submission that the

evidence can never achieve the degree of probative

force required unless one is able to point to

similarities between the offences. That is, if you

Pfennig 2 11/3/94

are required to embark upon a propensity reasoning

approach, then the evidence can never achieve that

required degree of probative force.

In other words, in this case, if the approach

of Your Honour Justice Deane was adopted, namely a

consideration of whether or not there were

similarities between the offences which pointed

uniquely to the accused, then the evidence would

have been excluded. The distinction, in our

submission, between identity cases and any other

kind of case is that - - -

DAWSON J: Again, propensity evidence is not admitted merely

because it is evidence of propensity. Propensity

has to be of the kind where the probative value

outweighs the undoubted prejudicial effect.

MS SHAW:  In our submission, in this case, the evidence was

admitted solely as propensity evidence, that is,

relying on Your Honour's judgment it could have

that purpose solely.

DAWSON J: It depends how you approach it. If it was a

propensity, let us say, to abduct young boys who
rode bicycles - I can stop there, but there may
have been other factors - if that was the
propensity, then it is the same thing, really, as

saying: and there was a system.

MS SHAW:  Your Honour, that might be the case if you do have

evidence of a system, that is, you have a number of

events which have common features, but in this case

the difficulty was that there was nothing known

about the disappearance of Michael Black - - -

DAWSON J: Yes, that is a different question, that is on the

facts of the case. But, you see, even Makin's case

was a propensity case, was it not?

MS SHAW: Makin's case was a system case.

DAWSON J: But it was the propensity of the defendants to

baby farm - to take children in - and then bury

them in the backyard which identified them as the

culprits in the instant case.

MS SHAW:  But the system itself, or the propensity itself,

was based on a concurrence, if you like, of facts
which led to the conclusion that Your Honour is

referring to. But, in this case, we do not have a

reasoning process which says, "Well, there are

facts in the Michael Black murder which show

certain things. There are facts in the Highland

offence which show certain matters."	What we have
is, knowing about th~ disappearance of

Michael Black and a reasoning process that because

Pfennig 11/3/94

the applicant has a particular propensity he is not

only more likely than anyone else to have committed

the abduction of Michael Black, but that one can

exclude everybody else whose propensities we do not

know.

So, in my submission, here, the critical

distinction is the propensity reasoning process,

whether or not one is entitled to specifically rely

on propensity without any other source of relevance

to what it is alleged is to be - - -

DAWSON J: You talk about my approach. It is really the

approach of the majority in Boardman. You would

say that if propensity of the thing - in this case

the propensity shown by the subsequent offence was

not sufficiently probative of the commission of the

earlier offence to allow him. Its prejudicial

value is obvious but its probative value is

little.

MS SHAW:  Your Honour, that is another way of expressing

what, in my submission, is the proper

interpretation perhaps of Your Honour's judgment.

But the Court of Appeal, in particular the judgment

of His Honour Justice Duggan, was that it was

Your Honour's reasoning in Harriman that explained

admissibility in the present case in that the

evidence could be admitted purely for propensity,

namely, to reason from the fact that Pfenning was

known to be an abductor and a molesterer, to say

that it is unlikely that there was someone else at

the reserve who may have had the same propensity,

knowing nothing about the facts in relation to the

disappearance of Michael Black.

DAWSON J:	The rejection of the forbidden chain of reasoning approach is merely to say, "Look, we are fooling
ourselves if we pretend that in those cases in
which similar fact evidence was admitted we are not
admitting evidence in propensity."  We are, and
because it is propensity too, that is all.
MS SHAW:	Your Honour, the distinction that I seek to draw

is this, that, true it is, if you have a number of

facts in one offence, and facts in the crime in

question, they can demonstrate a disposition, that

is, they can prove, if you like, a disposition that

exists. However, one is not entitled to use

propensity reasoning, as such, as an essential step in the process by which you determine the probative force of the evidence. If you are required to rely

on propensity reasoning, that is, reasoning because

he is the kind of person likely to commit this

offence then, in our submission, the evidence can

never achieve the required degree - - -

Pfennig 11/3/94

DAWSON J: That is, in my view, just exactly what you do do

in similar fact cases but, there we are, we know
the division of opinion. It is Lord Hailsham

verses the rest, in Boardman's case.

MS SHAW:  Your Honour, in my respectful submission,

Lord Cross is not at odds with Lord Hailsham,

because the end conclusion that Lord Cross arrives

at is that in Boardman's case itself, he would not

have admitted the evidence of one boy against the
other but for the peculiarities that existed

between the two offences. In other words, when

finally determining the question of admissibility,

His Honour Lord Cross relied on the peculiarities,

but - - -

DAWSON J: That only shows a particular sort of propensity.

It is an interesting argument, is it not?

MS SHAW:  Your Honour, it is critical in this case, because

on the one hand if one relies on - - -

DEANE J:  Ms Shaw, I think on that note we might here what

the Solicitor has to say.

MR DOYLE: If the Court pleases, our respectful submission

is that the relevant principles were clearly stated

in Harriman and that all we are looking at in this

case is an application of the principles, and I

must say at the outset, with respect, we do not

discern the apparent fundamental difference between

Your Honours Justices Dawson and Deane.

Could I just read a very short snippet from

Sutton v Reg, (1983) 152 CLR 528, in particular at
page 557. This is in the judgment of Your Honour
Justice Deane, and about the middle of the page

Your Honour, in the middle of that long paragraph, said:

On the other hand, if the similarities between offences which the accused undoubtedly

committed and the offence with which he is
charged are such as to warrant, in the context

of all the evidence, the conclusion that, in

the absence of extraordinary coincidence, the

same person committed all offences -

Now we would submit that applies precisely as a

principle here. And then Your Honour went on to

say, on the other hand another way is, in effect,

if the similarities are "so striking" and so we

submit he first half of what Your Honour said

there applies quite precisely to this case, and if
I could be so bold and at the risk of absolutely torpedoing my argument to essay what we submit the

principle is, we submit it is simply this, that

Pfennig 11/3/94

so-called propensity evidence may, in a particular

case, have sufficient probative force to justify

its admission in proof of a particular fact or

issue, despite its prejudicial effect. That is a

general proposition which we submit all of
Their Honours, all five in Harriman, endorsed and

all we really find in the cases is that,

particularly in some of the earlier cases, there

is, what I would call, rather more adherence to

category-type reasoning.

DAWSON J: If what you say is right, Mr Doyle, then all this

learning about similar-fact evidence merely

exemplifies the ordinary principle that a court has

discretion to exclude evidence when its prejudicial

effect outweighs its probative force, the general

principle.

MR DOYLE:  Yes, although I am not sure, with respect,

Your Honour, whether I would put it all as an

exercise of discretion or whether I might not

submit that there is a rule or, perhaps, even just

a principle of relevance. But certainly I would,

with respect, adopt what Your Honour says to this

extent, that what Harriman brought home to us all

is th~t these categories; striking similarities,

similarities, rebuttal of accident, whatever it

may, they are useful tools of reasoning but they

are no more than that. What Harriman brought home

to us is that the underlying principle is, what is

propensity evidence, how is it sought to be used

and, because it is propensity evidence, the

particular requirement that would have a high

degree of probative force before it will be

admitted, having regard to its prejudicial effect.

DAWSON J:  You see, it was said that Makin's case

established that propensity evidence has no

relevance as such.

MR DOYLE:	Yes.
DAWSON J: That is nonsense, is it not?
MR DOYLE:	That is what we submit, and we submit that all of the judgments in Harriman's case make that quite
clear.

GAUDRON J: But they do not go so far as to say all

propensity evidence is relevant and admissible.

MR DOYLE:  Your Honour, in a sense why would they? Because

all one can say is, we submit, the general

principle that propensity evidence may be

admissible if, in the particular circumstances, its

probative force outweighs its prejudicial effect,

and the particular circumstances direct attention

Pfennig 6 11/3/94

to what is the issue sought to be proved and then

how is the evidence sought to be used. So, with

respect, to put to me as Your Honour does, that it

does not say all propensity evidence is admissible,

is simply to make a comment about the way the

principle is expressed. It is a principle

about - - -

GAUDRON J: But it leaves undecided what it is that is the

criterion of probative value in circumstances such

as this.

MR DOYLE: But, Your Honour, with respect, how can there be

a criterion of probative value, because that must

always turn upon the particular facts of the case?

In other words, that is not a matter susceptible of

criteria. What Harriman establishes is, with this

particular type of evidence, because of its
potential prejudicial effect, a particularly high

or strong degree of probative force must be found;

that is the principle. So one cannot seek greater

precision than that. The cases are to be seen as

illustrations, and the various tags are convenient

tools of thought as I have submitted, but there can

be no, we would submit, legal criterion of the type

Your Honour refers to because in the end what the

judge, on the issue of admissibility, must balance

up is the probative force against the prejudicial

effect and that cannot be -

GAUDRON J:  I do not think I went so far in Harriman,

Mr Solicitor.

MR DOYLE:  Your Honour, I was going to call in aid what

Your Honour said in Harriman. Could I just refer

to page 6 - - -

DEANE J:  What is the reference, Mr Solicitor?

MR DOYLE: Harriman, (1989) 167 CLR 590. Perhaps I might be

the epistle writer who wants to be all things to

all men. I want to call all of Your Honours in aid

of my propositions. But page 613, Your Honours,

about point 3, just after the reference to Martin

and Hoch and Thompson, Your Honour said:

Indeed, in some situations it may be the propensity of the accused to commit the offence which raises the question of the improbability of the offence having been

committed other than as claimed by the

prosecution -

Granted, Your Honour does go on to say -

Pfennig 11/3/94

at least if the evidence discloses unusual or

unique features which render it improbable

than anyone else had a like propensity.

GAUDRON J:  Which is somewhat different from saying that it

is merely a question of probative value and

prejudice.

MR DOYLE: Well, no, with respect. What Your Honour, as I

read Your Honour as saying - though of course

Your Honour knows better than I what you meant.

What I read Your Honour as saying is that the

propensity, if established, may raise the question

of improbability and one would say, "Well, why is

it raised?" It is raised, improbability, in

support of admission and then that will give rise

to the question, "Well, now, is the probative force

sufficiently strong to justify admission?" If

Your Honour would look about five lines above,
Your Honour simply, with respect, put it around the

other way. Your Honour first of all referred to

the need to balance probative value against

prejudicial effect. Then Your Honour referred to

the conceptual way in which this evidence can

become relevant, namely through improbability. In

my submissions I am simply putting it the other

way. I am saying, "Well, when propensity is used

via improbability, if that is made out one then has

to balance probative force against prejudicial

effect".

I submit that, again, what Your Honour says

there is precisely in line with our submissions and

with the trial judge and that my friend's argument, we would submit, the flaw in it is that it attempts

to deny any underlying principle and seems to be an

endeavour to take us back to what we submit were

the bad old days where you pigeon-hole cases. You

say, "Is this an identity case? Well now, we will

look for unique features or striking similarity.

Is it a rebuttal of innocent association case?

Then we look for this or that.".

In our submission, they are not the criteria

of admissibility. They are simply convenient ways

as a matter of fact of analyzing particular cases

and the underlying principle is the principle that

propensity evidence must be more than relevant to

be admissible, it must have such a high or strong

degree of probative force as to outweigh the

potential prejudicial effect.

So we submit that Harriman simply brought to the forefront that underlying principle which had

tended to be a bit obscured because in the past
there had been a tendency to focus on particular

categories and sometimes a tendency which we submit

Pfennig 11/3/94

was squashed by Harriman to say that the Court has

to find something quite different from, or other

than, propensity. And there we would, on that,

certainly put ourselves firmly in Your Honour

Justice Dawson's camp for what it is worth. But in

the end, you are not finding something different from propensity, it is a question of whether the prosecution is to be allowed to use the propensity

in aid of proof despite its prejudicial effect.

I do not know how far Your Honours want me to

go. That is all I wanted to say, really, on the

issue of principle. The next aspect of my argument

is that when we look at how the trial judge

directed himself, that he directed himself

impeccably in terms of the principles and then,

subject to what Your Honours say, I was proposing

to make just a few points about the particular

facts, namely why in this case there is that high

degree of probative force.	Do Your Honours want me
to move on to that area?

DEANE J: It is a matter for you, Mr Solicitor.

MR DOYLE:  But I take it this is my one and only chance,

Your Honours.

DEANE J:  I think so. If you want to say anything further,

then say it.

MR DOYLE:  I suppose, Your Honour, while I have got the opportunity and time. Our submission, if the Court

pleases, is that when we look at the way in which

the trial judge directed himself, he did so

impeccably, and that appears at page 10 of the

application book, first of all. In the interests

of time I will not read it, but I refer to the

passage which begins at about line 6 and going over

to page 11, and in particular the top of page 11,

where he said:

more than relevance, or even appreciable

probative value, is needed -

And then said:

In this case there is more.

And then at pages 14 to 15, where, starting at

about line 15 and going over to page 15, he

referred to a number of the cases.

Now, we submit Your Honours, that the position

here was this, that His Honour directed himself

this way on admissibility: "If I am satisfied that

Michael Black was abducted from Sturt Reserve and murdered", and he found he was so satisfied, "and

Pfennig 11/3/94

if it's open from that for me to find that it was

an abduction for sexual reasons, now I have certain

further features". The abduction took place, he

found, at Sturt Reserve, and probably involved the

use of a sizeable motor vehicle, because of the

need to move the boy, the bike and the dog. And

then he said there is evidence which he was

prepared to accept for the purpose of admissibility

that the accused was there, that is, at the right

place and at the right time, that the accused spoke

to Michael Black, that the accused was not seen

again after about the time the boy was last seen,

and vice versa, so the accused seemed to have left

at about the right time, and then there was further
evidence suggesting the accused's vehicle may have
been over the river at Thiele Reserve, again at

about the right time.

So, what we had here, we submit, was a very

significant combination of events. The abduction

of Michael Black, one can say, is an unusual crime

GAUDRON J: There would be much force in your argument if we

were in an ideal society in which child abducting

and child molesting was an extraordinarily rare

event, but it is an assumption that the cases that

come before this Court, at least, are challenges.

MR DOYLE:  But, Your Honour, with respect, I do not suggest

that His Honour Justice Cox was using the sense of

saying, "Compared with, as it were, the run of the

mill crime in terms of all crime, this is rather
less usual", and, in my submission, that is an

undeniable fact; there are far more house breaks,

far more robberies, than there are this type of

offence, or at least - - -

GAUDRON J:  But we are not comparing, for the purposes of

the admissibility of evidence, people with a propensity to torch houses and people with a

propensity to molest children.

MR DOYLE:  No, Your Honour, but, could I put it this way. If

the charge was stealing a transistor radio from

someone at Sturt Reserve and what the Crown sought

to prove was that the accused, who had been there

on a previous or subsequent occasion, had stolen

someone's radio, in our submission, intuitively one

tends to think, well, that is not going to get off

the ground, because the process of reasoning is, in that sense, how common is the crime? Part of this

is, as His Honour went on to say, how likely is it

that there was someone else there that day at the right time, apparently leaving at the right time,

with the right sort o·f vehicle? How likely is it

that there was someone else of that type right

Pfennig 10 11/3/94

there with the means and whose movements fit in?

If I could put it around the other way, if this

particular offence had say, occurred - the

abduction was from Rundle Mall on a crowded Friday,

when there are thousands of shoppers going past, or
from Adelaide oval, when there is a football match
with a large crowd there, again, without predicting

the precise answer, one could see the issue would

be rather different now because of the much greater

number of people.

All factors have to be considered and that is

what the cases say. So you have to consider, as it

were, the commonness or uncommonness of the crime,

the number of people around and, in our submission,

clearly one would consider how closely the accused

is linked to the events? Again I could say, if it

had never been proven that the accused was at Sturt

Reserve that afternoon, once again one might say,

before admitting this evidence, one would look for

a greater degree of similarity because, if you are

using it to prove that he was there and did it,

that is one thing, but if, with evidence that he

was there at the right time and actually talking to

the boy, you are using it to prove that he did it,

that is another thing. And, in our respectful

submission, all of those things highlight that at

the bottom there really is no issue of principle
here, that in the end what we will get down to is

the sort of issues which I am now putting to

Your Honours, namely, let us weigh up the force of

these facts against the prejudicial effect and, in

our submission, it is difficult to deny that the

evidence was potentially admissible under the

Harriman principle or the Sutton principles or

whatever you want to call them; it is potentially

admissible. The only issue is: how strong is the

probative force to be balanced against the

prejudicial effect?

So, our submission is that His Honour directed

himself correctly in terms of the authorities and

that then, when he came to look at the facts, we

had this very significant concurrence of events and

the particular significance for this case is the

fact that the evidence showed the accused was there

at the right time and very closely associated with

the boy, talking to him, and the other evidence.

So, we submit, in that context, the flaw in

the argument is the attempt to go back to
categories. There are just one or two other points

I would seek to make with reference to my friend's

argument because it is perhaps important just to

point out these things. Could Your Honours look at

the second written submission at page 3, and I

would just like to make a point on three or four

Pfennig 11 11/3/94

paragraphs. In the middle of the first paragraph

my friend says:

there was no evidence of the modus operandi of
the crime -

We submit, there was quite a deal of evidence indicating how the crime was committed, namely the use of the vehicle, the inveigling of the boy. It

is almost inevitable that he was in some way lured

to the vehicle.

In the second paragraph my learned friend says, in the middle:

When the issue is identity -

We submit that really highlights the flaw in her argument. In a sense that is the issue, but the

issue arises in the context of all the facts of
this case, and to just say "When the issue is

identity", then so and so, is to overlook the fact

that the critical thing is how does identity arise,

and in what way is the similar fact evidence sought

to be used?

Over the page, Your Honours, at the top of

page 4, point 5, the only concession made by the

Crown was along these lines, that perhaps there was

not such a striking or unique similarity that if

one could not prove the accused was at Sturt

Reserve one could still get the evidence in. So,

the concession was simply to the effect that this

may not be the sort of case where you could use the

evidence absent other evidence that he was there at

the time. Where the chain of reasoning was solely

these crimes are so similar that even though we

cannot put him at the scene, one can reason that he

must have been there. So, the concession, in our

submission, has nothing to do with the grounds of

the application. In paragraph 7(c), Your Honours,

my friend says:	the class to which the applicant belongs is
expanded -

et cetera. Well, the class was not being expanded.

That evidence of his dealings with other boys, or

other children, was simply used, in our submission,

to show, again, not only was he there on the day

and the preceding day, but he was talking with

children in a way which would suggest he was trying

to gain their confidence.

Your Honours, we therefore submit that there

really is no point of principle here, that

whichever judgments one looks at, Your Honour

Pfennig 12 11/3/94

Justice Dawson, Your Honour Justice Deane in

Sutton, or Your Honour Justice Gaudron in Harriman,

we find statements of principle which adequately
cover this case, and the end result of a grant of

special leave will not be a further refinement of

the principles, of course, we know nothing is

beyond Your Honours, but as you will have seen from

our submissions, the submission is that the

principle really is a basic one, and the grant of

leave here could lead only to an examination of the

particular application of the principle in this

case. If the Court pleases.

DEANE J: Thank you, Mr Solicitor. In this case there will

be a grant of special leave to appeal.

AT 11.57 AM THE MATTER WAS ADJOURNED SINE DIE

11/3/94

Pfennig 13