Pfennig v The Queen

The applicant, Pfennig, sought special leave to appeal to the High Court of Australia against a decision concerning the admissibility of similar fact evidence. The core of the dispute revolved around whether such evidence could be admitted solely to establish the propensity of the accused, thereby inferring identity, particularly when other evidence was insufficient to prove the case. The applicant argued that this approach conflicted with established principles regarding the use of similar fact evidence.

The legal issue before the High Court was whether similar fact evidence could be admitted solely to demonstrate the propensity of an accused person, from which their identity as the offender could be inferred. The applicant contended that this was impermissible, especially when the evidence was otherwise insufficient to establish guilt. They sought to draw a distinction between the approach taken by Dawson J in *Harriman* and that of Deane J in *Sutton's case*, arguing that the former allowed propensity evidence while the latter required similarities between offences to warrant the conclusion that the same person committed them.

The Court considered whether there was a necessary conflict between the statements of Dawson J and Deane J. Dawson J suggested that propensity evidence could be admitted if its probative value outweighed its prejudicial effect, and that similarity of design could establish this relevance. The applicant argued that in identity cases, propensity reasoning alone was insufficient unless specific similarities between the offences pointed uniquely to the accused. The Court noted that propensity evidence is not admitted merely because it shows propensity, but rather when that propensity has sufficient relevance, potentially demonstrated by a system or common features across events, which outweighs its prejudicial effect.