R v JCM - [2007] QDC 211

DISTRICT COURT OF QUEENSLAND

CITATION:

R v JCM [2007] QDC 211

PARTIES:

R
v
JCM

FILE NO/S:

526 of 2005

DIVISION:

PROCEEDING:

Criminal Trial

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

18 May 2007

DELIVERED AT:

Cairns

HEARING DATE:

2 December, 2005; 10 August 2006; 2 October 2006

JUDGE:

White DCJ

ORDER:

CATCHWORDS:

COUNSEL:

Mr M Connelly for the Director of Public Prosecutions
Mr J Harrison for the accused

SOLICITORS:

Director of Public Prosecutions
O’Reilly Stevens Bovey for the accused

Introduction

On 30 September 2005 the Director of Public Prosecutions presented an indictment charging the accused with 36 counts, the particulars of which are set out in the following schedule:-

CNT DATES OFFENCE CMPLT

1 1/1/1983-31/12/1985 Wilfully did an indecent act with intent to insult or offend DKP

2 1/1/1983-31/12/1985 Unlawfully and indecently dealing with a child under 16/under 14 DKP

3 1/1/1983-31/12/1985 Unlawfully and indecently dealing with a child under 16/under 14 DKP

4 1/1/1983-31/12/1985 Unlawfully and indecently dealing with a child under 16/under 14 DKP

5 12/4/1983-6/10/1983 Unlawfully and indecently dealing with a child under 16/under 12 PJS

6 12/4/1983-6/10/1983 Wilfully did an indecent act with intent to insult or offend PJS

7 12/4/1983-6/10/1983 Wilfully did an indecent act with intent to insult or offend PJS

8 12/4/1983-6/10/1983 Unlawfully and indecently dealt with a child under 16/under 12 PJS

9 1/8/1984-1/10/1984 Unlawfully and indecently dealt with a child under 16/under 14 PJS

10 1/8/1984-14/12/1984 Unlawfully and indecently dealt with a child under 16/under 14 PJS

11 14/12/1984 Unlawfully and indecently dealt with a child under 16/under 14 PJS

12 14/12/1984-25/1/1985 Wilfully did an indecent act with intent to insult or offend PJS

13 1/1/1984-30/6/1985 Wilfully did an indecent act with intent to insult or offend JB

14 1/1/1984-30/6/1985 Unlawfully and indecently dealt with a child under 16/under 14 JB

15 1/1/1984-30/6/1985 Wilfully did an indecent act with intent to insult or offend JB

16 1/1/1984-30/6/1985 Unlawfully and indecently dealt with a child under 16/under 14 JB

17 1/1/1984-30/6/1985 Unlawfully and indecently dealt with a child under 16/under 14 JB

18 1/1/1984-30/6/1985 Unlawfully and indecently dealt with a child under 16/under 14 JB

19 1/1/1984-30/6/1985 Unlawfully and indecently dealt with a child under 16/under 14 JB

20 1/1/1984-30/6/1985 Wilfully did an indecent act with intent to insult or offend JB

21 1/1/1984-30/6/1985 Sodomy of a person under 18 JB

22 1/9/1984-30/6/1985 Wilfully did an indecent act with intent to insult or offend MPD

23 1/1/1984-30/6/1985 Wilfully did an indecent act with intent to insult or offend RMH

24 1/11/1984-18/1/1985 Wilfully did an indecent act with intent to insult or offend DPM

25 1/11/1984-18/1/1985 Unlawfully and indecently dealt with a child under 16/under 14 DPM

26 1/11/1984-18/1/1985 Unlawfully and indecently dealt with a child under 16/under 14 DPM

27 1/11/1984-18/1/1985 Wilfully did an indecent act with intent to insult or offend DPM

28 1/11/1984-18/1/1985 Unlawfully and indecently dealt with a child under 16/under 14 DPM

29 1/11/1984-18/1/1985 Sodomy of a person under 18 years DPM

30 1/11/1984-18/1/1985 Wilfully did an indecent act with intent to insult or offend DPM

31 1/11/1984-18/1/1985 Unlawfully and indecently dealt with a child under 16/under 14 DPM

32 1/11/1984-18/1/1985 Unlawfully and indecently dealt with a child under 16/under 14 CJE

33 1/11/1984-19/1/1985 Wilfully did an indecent act with intent to insult or offend CJE

34 1/1/1985-19/1/1985 Wilfully did an indecent act with intent to insult or offend CJE

35 1/1/1985-19/1/1985 Unlawfully and indecently dealt with a child under 16/under 14 CJE

36 1/11/1984-18/1/1985 Sodomy of a person under 18 years CJE

Abuse of process

Mr Harrison on behalf of the accused applied for an order staying prosecution in respect of some of the above offences. The statement of the complainant DPM upon which the prosecution relies is dated 18 January 1985. The statement of the complainant PJS is dated 29 January 1985. The statement of the complainant CJE is dated 19 January 1985. CJE has also given an addendum statement dated 17 September 2005. That addendum statement fills out some of the conversations and dealings between the complainant and the accused but also describes an incident in which he says the accused inserted his penis into the complainant’s anus. He also describes the accused persuading him (the complainant) to insert his penis into the accused’s anus. For completion, the statement of MPD is dated 6 May 2005. The statement of JB is dated 14 October 2003 and there is a further statement dated 26 February 2004. The statement of DKP is dated 27 February 2004. The statement of RMH is dated 13 April 2004.

It is common ground that on 17 June 1985 an indictment was presented in the District Court at Cairns charging the accused with a total of 11 counts involving offences of a sexual nature. Five counts related to the complainant PJS. Three counts related to the complainant DPM. Three counts related to the complainant CJE. The record is incomplete but on 20 January 1986 an indictment was presented charging the accused with three offences of a sexual nature against the complainant CJE. It is common ground that these offences alleged in relation to CJE were the same offences referred to in the abovementioned indictment dated 17 June 1985.

It is not clear whether the presentation of the separate indictment in respect of the three offences against CJE resulted from a ruling against the joinder of the charges relating to three separate complainants in the one indictment or whether it was simply a decision made by the prosecution. In any event, the accused pleaded not guilty to the three count indictment before His Honour Judge Hall on 22 January 1986 and the prosecution presented its evidence. At the end of the prosecution case Mr Darvall who appeared for the accused made a no-case to answer submission. To put that submission in context s 632 of the Criminal Code, which was in force at the time, provided as follows:-

“A person cannot be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices.”

Mr Darvall’s submission essentially was that the complainant was an accomplice and there was no other evidence which could amount to corroboration of the complainant’s account. The learned trial judge accepted that submission and ruled that there was no case to answer. Mr Davey, the Crown prosecutor, asked for the return of the indictment and endorsed it that the Crown would not proceed further upon it. A little later Mr Davey asked for the return of the 11 count indictment and endorsed it to the effect that the prosecution would not proceed further upon it. It is common ground that the nolle prosequi in relation to the 11 count indictment was entered in anticipation of the fact that if the prosecution were to proceed to trial in respect of the offences alleged to have been committed against PJS and DPM separately, a similar ruling would be made that they were accomplices and their evidence was not corroborated. There would be no case to answer in respect of those counts.

The particulars of the offences alleged in the 11 count indictment are no longer available. However it is common ground that the offences alleged to have been committed against PJS were particularised by reference to his statement dated 29 January 1985. It is common ground that the offences alleged to have been committed against DPM were particularised from his statement dated 18 January 1985. It is accepted that the offences alleged to have been committed against CJE were particularised from his statement dated 19 January 1985.

Mr Connolly properly concedes that counts 32 to 35 inclusive on the indictment currently before the court have been particularised from the statement of CJE dated 19 January 1985. Counts 24 to 31 have been particularised from the statement of DPM dated 18 January 1985. Counts 5 to 12 inclusive have been particularised from the statement of PJS dated 29 January 1985.

It is accepted that as a matter of law the accused has never been tried to verdict on the counts on the current indictment before the court to which I have just referred. However Mr Harrison submits that for the Crown to proceed in respect of those counts would be an abuse of process in light of the circumstances in which the Crown entered a nolle prosequi to the two indictments which were before the District Court in Cairns on 22 January 1986. I agree. The prosecution chose to present the indictments and to proceed separately against the accused in relation to the group of offences relating to one complainant. By reason of the state of the law at the time his Honour Judge Hall ruled that there was no case to answer. That decision was never appealed and Mr Connelly has not sought to argue that his Honour was wrong.

Now, almost 20 years later, the prosecution wishes to proceed in respect of a similar group of offences based upon the same evidence. It would only be able to do this by reason of the repeal of the former s 632 of the Criminal Code. Similarly, and undoubtedly based upon his Honour’s correct ruling of law, the prosecution in 1986 accepted that it had no evidence upon which it could obtain a conviction against the accused in respect of the other two complainants. In my view had defence counsel thought of it he would have been entitled to ask the trial judge to refuse to return the indictment to the Crown prosecutor for endorsement. He would have been entitled to ask his Honour to direct the jury to return verdicts of not guilty in respect of those offences upon which a jury was empanelled. He would have been entitled to ask the trial judge to empanel a jury in respect of the balance of the offences on the 11 count indictment and to direct verdicts of not guilty in respect of those offences. See R v Saunders (1983) 2 QdR 270.

In my view the only possible inference to be drawn from the conduct of the Crown Prosecutor in 1986 is that he accepted that convictions could not be obtained on any of the counts charged and he therefore effectively withdrew the indictments. The accused and his counsel were entitled to believe that the prosecutor was acting in good faith when he asked for the return of the indictments. I have no doubt that Mr Davey, the prosecutor in 1986, was acting in good faith. In my view it would be an abuse of process for the prosecution to be permitted to now proceed in respect of the relevant counts on the current indictment before the court simply taking advantage of a change in the law which occurred 11 years after the indictments were effectively withdrawn. I order that proceedings in respect of counts 5 to 12, 24 to 31, and 32 to 35 inclusive be permanently stayed.

In my view it would not be an abuse of process for the prosecution to proceed in respect of count 36, the count of sodomy alleged to have been committed in relation to CJE. The prosecution did not rely on any such evidence or allegation back in 1986. In fact such an allegation has only emerged recently in the statement of CJE dated 17 September 2005. I am also of the view that it would not be an abuse of process for the Crown to lead the evidence contained in the statement of CJE dated 19 January 1985 as relationship evidence on the accused’s trial in respect of count 36. I am also of the view that it would not be an abuse of process for the prosecution to call evidence from DPM and CJE on the accused’s trial in respect of the remaining counts on the current indictment provided such evidence is properly admissible in respect of all counts. That really is the major question for consideration.

Admissibility of evidence

The issue is whether the evidence of all seven boys is admissible on the accused’s trial in respect of each remaining count on the indictment. Obviously the evidence of each complainant named in the indictment is admissible to prove the offences alleged to have been committed against that particular complainant. The evidence of the other six boys is clearly propensity evidence in that it shows, if believed, a propensity on the part of the accused to commit other crimes of a similar nature. In those circumstances the potential for prejudice is significant. The issue of its admissibility is therefore to be ruled upon by the application of the principle stated by the majority (Mason CJ, Deane and Dawson JJ) of the High Court in Pfennig v The Queen (1994-1995) 182 CLR 461.

I do not think I need fear contradiction to say that the application of the Pfennig principle has led to some considerable confusion over the years since that judgment was given. In my view this is particularly so in cases such as the present one involving charges of sexual offences against multiple complainants when the identity of the offender is not a serious issue. In cases like this the serious issue is whether or not the offences were committed at all. In my view therefore a comprehensive examination of the proper application of the Pfennig principle to cases like this is long overdue. It is not particularly satisfactory for that examination to be carried out by a trial judge of an intermediate court. It would be far better if that were carried out by a court at appellate level. Ideally, the comprehensive examination should have been carried out by the High Court in Phillips v The Queen (2006) 158 ACrimR 431. Unfortunately, as I will explain in some considerable detail later, in my respectful view the High Court’s examination was a failure.

In order to comprehensively examine the issue of the application of the Pfennig principle it is necessary to set out a substantial part of the majority judgment. It opens as follows at p 464:-

“This appeal raises questions as to the admissibility of what has been described as propensity evidence or similar fact evidence and the use to which it can be put. There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. These categories are not exhaustive and are not necessarily mutually exclusive. The term similar fact evidence is often used in a general but inaccurate sense.”

Thereafter, the judgment sets out in considerable detail the evidence which was led at the appellant’s trial. I will return to discuss this later. At p 475 the judgment commences a comprehensive discussion of the authorities before the test was finally stated in precise terms. Although it is lengthy in my view a comprehensive examination requires it to be set out in full as follows:-
“The admissibility of similar fact evidence

The appellant’s basic challenges to the reception of the H. evidence are that propensity reasoning is an inadequate foundation for its admission and that, even if admission on that footing might be legitimate in some circumstances, no adequate factual foundation was established in the present case. The appellant submits that the trial judge’s directions transgressed the general principle that it is not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. Makin v Attorney-General (NSW), [1894] A.C. 57 at p 65. The appellant further submits that there was lacking in the present case that underlying unity between the offences charged and the conduct disclosed by the H. evidence which is essential before similar fact evidence amounting to propensity evidence can be admitted. Moorov v H.M. Advocate, [1930] J.C. 68. In other words, there was an absence of that striking similarity to which Gibbs C.J. referred in Sutton v The Queen (1984) 152 CLR 528 at p 535 when speaking of similar fact evidence adduced to establish identity.

Contemporary discussion of the problems attending the reception of similar fact and propensity evidence has its origins in the statements of principles by Lord Herschell L.C. in Makin v Attorney-General (NSW). Lord Herschell enunciated two relevant principles which have had continuing influence. The first was that the prosecution cannot “adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried” Makin v Attorney-General (NSW) [1894] AC 57 at p 65, principle was later described as a “fundamental” principle in the law of evidence. Maxwell v Director of Public Prosecutions [1935] AC 309 at pp 317, 320 and see also Burrows v the King (1937) 58 CLR 249 at p 253, per Latham CJ.

The second principle was that “the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused”. [1894] AC at p 65. It is evident that there was an element of tension between the two principles as thus stated. That tension was partly due to the ambiguity inherent in the use of the word “relevant”. The second principle, as expressed by Lord Herschell, seemed to imply that propensity evidence was not as such relevant to the determination of the crime charged, rather that it was relevant to that determination but inadmissible for some overriding policy reason, i.e. that in many cases its prejudicial effect would outweigh its probative force.

Subsequent development of the Makin principles in the English cases

The judgments in succeeding cases suggested that the second principle was directed to justifying the admissibility of similar fact or propensity evidence when it tended to disprove a denial or defence which was otherwise available to the accused (Thompson v The King [1918] AC 221), e.g. an alibi (Thompson v The King [1918] AC 221) or the absence of guilty intention (Noor Mohamed v The King [1949] AC 182 at pp 191-192. In Noor Mohamed v The King (ibid at pp 191-192, 194), the Judicial Committee of the Privy Council specifically rejected the view which Lord Goddard LCJ had expressed in R v Sims [1946] K.B. 531. His Lordship had said (ibid at p 539):-

“If one starts with the assumption that all evidence tending to show a disposition towards a particular crime must be excluded unless justified, then the justification of evidence of this kind is that it tends to rebut a defence otherwise open to the accused; but if one starts with the general proposition that all evidence that is logically probative is admissible unless excluded, then evidence of this kind does not have to seek a justification but is admissible irrespective of the issues raised by the defence, and this we think is the correct view. It is plainly the sensible view.”

In Noor Mohamed ([1949] AC at p 194), Lord du Parcq, speaking for the Judicial Committee, criticized this statement on the ground that “logically probative” might be understood to include much evidence which is held to be “irrelevant”. Just what Lord du Parcq meant by “irrelevant” is not altogether clear. It has been suggested that his Lordship was referring to categories of inadmissible evidence including hearsay and secondary evidence of documents. (Reg v Boardman [1975] AC 421 at p 449, per Lord Hailsham of St. Marylebone).

However, the criticism of the dicta in Sims did not extend to the decision itself which has been generally regarded as correct. In Sims, where a person was charged in one indictment with several offences of sodomy and gross indecency with several men and the evidence of each man was that the accused invited him into his house and there committed the acts charged, the acts in each case bearing a striking similarity to each other, it was held that the evidence of the other acts was admissible in relation to each charge to show the nature of the act done by the accused. That evidence was held to be admissible, not only because the acts bore “a striking similarity” to each other ([1946] KB at pp 539-540), but also because “[t]he probative force of all the acts together is much greater than one alone”; they showed that the visits to the accused’s house were for a guilty not for an innocent purpose (ibid at p 540). The correctness of the decision in Sims on that footing was accepted in Reg v Kilbourne ([1973] AC 729) and Reg v Boardman ([1975] AC esp. at p 444, per Lord Wilberforce.)

However, before Boardman, was decided, the received doctrine was that mere propensity evidence was inadmissible; to be admitted the evidence must go to something other than disposition. Boardman changed that received doctrine by discarding the earlier approach to admission of similar fact evidence based on identifiable categories. Instead, in Boardman, the House of Lords adopted as the guiding principle to determine the admissibility of similar fact evidence the test whether the prejudice to the accused is outweighed by the probative force of the evidence. In that case, the headmaster of a boarding school for boys was charged with buggery with S., a pupil aged sixteen, and inciting H., a pupil aged seventeen, to commit buggery on him. It was held that the evidence of S. on the count concerning him was admissible as corroborative evidence in relation to the count concerning H. and vice versa. The trial judge, it was held, was entitled to decide that the probative force of the similar fact evidence outweighed its prejudicial effect because there was a striking similarity or underlying unity between the similar fact evidence and the evidence of the acts relevantly charged. (ibid, at pp 441, 444, 453, 454, 462.)

Lord Cross of Chelsea, who reflected the majority view in Boardman, observed that the reason for the general rule of exclusion in relation to propensity evidence is ([1975] AC at p 456):

“not that the law regards such evidence as inherently irrelevant but that it is believed that if it were generally admitted jurors would in many cases think that it was more relevant than it was, so that…its prejudicial effect would outweigh its probative value. Circumstances, however, may arise in which such evidence is so very relevant that to exclude it would be an affront to common sense.”

His Lordship went on to say (ibid at p 457):

“The question must always be whether the similar fact evidence taken together with the other evidence would do no more than raise or strengthen a suspicion that the accused committed the offence with which he is charged or would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it. In the end – although the admissibility of such evidence is a question of law, not of discretion – the question as I see it must be one of degree.”

As will appear later in these reasons, the passage just quoted is important and has significance for the question to be decided in the present case.

Subsequently, in Director of Public Prosecutions v P ([1991] 2 AC 447), the House of Lords rejected the proposition that “striking similarity” was an essential prerequisite of admissibility of similar fact evidence in all cases, holding that the essential feature of the evidence to be admitted is that its probative force is sufficiently great to make it just to admit despite its prejudicial effect (ibid at pp 460-461). In Director of Public Prosecutions v P, the accused was charged with rape and incest against each of his two daughters. The trial judge refused an application that the counts relating to each girl should be tried separately and admitted evidence of an offence against one victim in connexion with an alleged offence against another. The House of Lords held that the evidence was properly admitted on the ground that is probative force was so great as to make it just to admit it notwithstanding that it was prejudicial to the accused.

Lord Mackay of Clashfern L.C. (with whom the other Law Lords agreed) rejected the notion that “striking similarity” is an essential element in every case in allowing evidence of an offence against one victim to be heard in connexion with an allegation against another, though his Lordship acknowledged that, in cases of identity, “evidence of a character sufficiently special reasonably to identify the perpetrator is required” ([1991] 2 A.C. at p 460).

The Lord Chancellor observed ([1991] 2 A.C. at p 460):
“[T]he essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed…But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a what which gives too much effect to a particular manner of stating it and is not justified in principle.”

The Lord Chancellor went on to say (ibid, at p 461):

“Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.”

The Lord Chancellor regarded the relationship between the evidence relating to one victim and the evidence relating to another victim as critical. In this respect, his Lordship said (ibid at p 462):

“This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connexion. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connexion, 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. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.”

The exposition of the principles in Director of Public Prosecutions v P represents an authoritative statement of the relevant law as it presently stands in England.

New Zealand

The approach adopted in Director of Public Prosecutions v P has been followed by the New Zealand Court of Appeal. (Reg v Accused (1991) 7 C.R.N.Z. 604; Reg v McIntosh (1991), 8 C.R.N.Z. 514).

Canada

In Reg v Morin ([1988] 2 S.C.R. 345 at pp 369-371; (1988) 44 C.C.C. (3d) 193 at pp 217-218), the Supreme Court of Canada adhered to the view that, although evidence of propensity was relevant to establish the commission of a crime, it was inadmissible for that purpose unless it was relevant to an issue apart from its tendency to show propensity and its probative value exceeded its prejudicial effect. But, in Reg v B (C.R.) [1990] 1 SCR 717; (1990) 55 C.C.C. (3d) 1, the Supreme Court recognized that the general exclusionary rule against the reception of evidence adduced solely to show that the accused is the sort of person likely to have committed an offence is not an absolute. According to McLachlin J (with whom Dickson C.J. Wilson, L’Heureux-Dube and Gonthier JJ agreed) (ibid at p 735; p 25):

“Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect …where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception. The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused, as well as the connexion, if any, of the evidence to issues other than propensity, to the end of determining whether…the probative value of the evidence outweighs its potential prejudice and justifies its reception.”

The law in Canada, as thus stated (See also Reg V C (M.H), [1991] 1 SCR 763, at p 771; (1991) 63 CCC (3d) 385 at p 392; Reg v B (F.F) [1993] 1 SCR 697; (1993) 79 CCC (3d) 112), closely resembles the law as expressed subsequently by Lord Mackay of Clashfern L.C. in Director of Public Prosecutions v P and as applied in New Zealand.

The Australian authorities

In this Court, in conformity with earlier English authorities, it was accepted that propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged. But it was accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition (Markby v The Queen (1978), 140 CLR 108, at p 116; Perry v The Queen (1982), 150 CLR 580 at p 609; Sutton v The Queen (1984), 152 CLR at pp 533, 545-546, 556-557, 562-563). It was also accepted that, in order to be admissible, propensity evidence must possess “a strong degree of probative force” (Markby (1978) 140 CLR at p 117; Perry (1982), 150 CLR at pp 586, 589, 605; Sutton (1984) 152 CLR at p 533) or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity (Perry (1982), 150 CLR at p 609; Sutton (1984) 152 CLR at pp 548-549, 559-560, 565; Harriman v The Queen (1989) 167 CLR 590, at 633. Very often, propensity evidence is received when there is a striking similarity between different offences or between the evidence of different witnesses (Markby (1978) 140 CLR at p 117; Perry (1982), 150 CLR at pp 603, 607, 610; Sutton (1984), 152 CLR at pp 535, 549, 559, 566-567). In particular, it was recognized that the existence of such striking similarity is necessary in cases such as Sutton where the prosecution seeks to lead the evidence on the basis that the similarity between different offences founds a conclusion that they must have been committed by the one person with the consequence that evidence which would be admissible to show that an accused committed one of the offences is admissible to prove that he or she committed another or the others of them.

The insistence in some of the judgments of this Court on the need to show that propensity evidence was relevant to “some other issue” as one of the prerequisites of its admissibility so as to prove the commission of the offences charged contributed to a misunderstanding of the Makin principles and to statements of principles which lacked a clear and coherent theoretical foundation. So much was recognized by Mason C.J., Wilson and Gaudron JJ, in Hoch v The Queen ((1988) 165 CLR 292, at p 294) where their Honours stated that the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged ((1988) 165 CLR at p 295). Mason C.J., Wilson and Gaudron JJ. said (ibid., at pp 294-295. This passage was subsequently cited by Dawson J in Harriman (1989) 167 CLR at p 600):

“Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force …that strength lies in the fact that the evidence reveals ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.”

This passage should not be understood as asserting that “striking similarities” or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.

An important distinction is to be drawn between cases such as the present case in which the “similar facts” are not in dispute and cases in which such facts are in dispute. Thus, their Honours said ((1988) 165 CLR at p 295):

“Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.”

Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged (Boardman [1975] A.C., at pp 452, 458-459; Sutton (1984), 152 CLR. at pp 556-557; Hoch (1988), 165 CLR at p 295). The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. (Hoch (1988), 165 CLR at p 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984) 152 CLR at p 564). See also Harriman (1989) 167 CLR at p 602). Here “rational” must be taken to mean “reasonable” (See Peacock v The King (1911), 13 CLR 619 at p 634; Plomp v The Queen (1963) 110 CLR 234 at p 252) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.

In our view, the principles stated above which derive from Hoch correctly state the law with respect to the admissibility of similar fact evidence. Those principles have not been disavowed by any subsequent decision of this Court and they were accepted and applied by the trial judge in this very case. The discussion in Hoch was expressed in terms of evidence of similar facts rather than propensity evidence. That was because the evidence in that case lent itself to that classification though, in the light of the possibility of concoction, it was held to be inadmissible.

There has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence. The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases. Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connexion with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused. In stating the question in that way, we point out, as Lord Cross of Chelsea suggest in Boardman ([1975] AC at p 457), that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred, according to the criminal standard of proof, that the accused is guilty of the offence charged. Accordingly, the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed.

Acceptance of the statement of principles stated above means that striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics. What is more, that approach conforms with the approach that now exists in the United Kingdom, Canada and New Zealand.

In Harriman v The Queen, Dawson J pointed out ((1989) 167 CLR at pp 597-598:
“In the past, evidence of a criminal propensity to commit crime in general, or a particular kind of crime, appears to have been regarded as inadmissible because it was thought to be purely prejudicial, and therefore irrelevant, rather than relevant but excluded because of its prejudicial nature. Upon this basis it was said that it became admissible only if some relevance could be shown beyond the propensity itself.”

His Honour observed that, although this view had drawn some support from Lord Herschell’s statement in Makin, that view had given way in Reg v Boardman to the opinion that Lord Herschell was pointing (ibid., at pp 598-599) “to the high degree of relevance required to render propensity evidence admissible rather than to the requirement of relevance of a different kind.” That is how Lord Goddard L.C.J. had stated the law in Sims when his Lordship said ([1946] KB at p 537): “Evidence is not to be excluded merely because it tends to show the accused to be of a bad disposition, but only if it shows nothing more.” What his Lordship was insisting on was that the evidence of bad disposition should also have some “specific connexion” with the commission of the offence alleged. That is because, as a matter of policy, the courts have taken the view that propensity evidence if it does no more is likely to have a very prejudicial effect and should not be received unless its probative force exceeds that prejudicial effect. So the evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it. However, as we have already said, the criterion of probative force as against prejudicial effect and thus of admissibility is that deriving from Hoch.

The role of the trial judge in admitting propensity evidence.

Once that criterion of admissibility is accepted, it is apparent that the trial judge is required to discharge an important responsibility. That point was made by the Supreme Court of Canada in Reg. v B. (C.R.) ([1990] SCR 717; (1990) 55 CCC (3d) 1.) where it was accepted that the process of balancing the probative value of the evidence against its prejudicial effect was a delicate one. But the trial judge, in making that judgment, must recognize that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence. (Sutton (1984), 152 CLR at p 564; Hoch (1988), 165 CLR at p 296; Harriman (1989), 167 CLR at p 602.

It should be noted that the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence (see line 368 above). Further, that test requires the trial judge to be satisfied that there is no reasonable view of the propensity evidence which is consistent with innocence. The test is a rule or principle of law. I have no doubt that the majority in Pfennig’s case intended it to have universal application by trial judges in ruling on the admissibility of propensity evidence. However, if the test is the same test that a jury applies to circumstantial evidence the reasoning process which the trial judge must adopt in applying the test is purely one of drawing inferences from facts.

As the judgment indicates propensity evidence is circumstantial evidence. It is always circumstantial evidence because it can never prove the commission of an offence on its own. It can only rationally do so in conjunction with other evidence.

The next point to be made is that no evidence, circumstantial or otherwise, is admissible in the prosecution case in a criminal trial unless it is relevant to a material fact in issue. I would define a material fact in issue as an element of the offence charged, the identity of the offender, or any statutory defence such as accident, mistake etc which might arise on the evidence. Although it is called propensity evidence, it is never admissible to prove a propensity. This is simply because the fact that an accused may have a propensity, no matter how unusual, specific, or well entrenched in his behaviour it might be, it is never a material fact in issue. I can think of no offence under the law of Queensland in which a propensity to do anything is an element of the offence.

It is also necessary to note that propensity evidence which may be conveniently described as similar fact evidence is not always used to prove the same material fact in issue in every case. In some cases similar fact evidence is used to prove the identity of the offender (Sutton v The Queen (1982) 152 CLR 528). In other cases it is used to prove that the offence charged (or a significant element of it) was actually committed. (Hoch v The Queen (1988) 165 CLR 292).

The use which a jury makes of circumstantial evidence will vary according to the nature of the prosecution case and the material fact in issue to which the circumstantial evidence is relevant. An important distinction needs to be made between a prosecution case which is wholly circumstantial in relation to the material fact in issue to which circumstantial evidence is relevant, and a case in which there is direct evidence of the commission of the offence by the accused to which the circumstantial evidence is relevant. In a wholly circumstantial case a jury uses each item of circumstantial evidence with any other relevant items of circumstantial evidence to decide whether or not the relevant material fact in issue is proved beyond reasonable doubt. In a case in which there is direct evidence from a witness that an accused person has committed the offence, a jury uses circumstantial evidence as support or corroboration of the witness giving the direct evidence of the commission of the offence.

In all cases it is essential to accurately identify the material fact in issue to which circumstantial evidence is relevant in order to adopt a rational, logical reasoning process in deciding whether or not that circumstantial evidence tends to prove the material fact in issue. In order to demonstrate this difference in reasoning process from case to case I will discuss a few examples from the decided cases. A convenient starting point is Pfennig’s case itself. There can be no sensible discussion without some reference to the evidence because it is only by reference to the evidence that the material fact in issue to which the propensity evidence related, and the reasoning process involved in using the propensity evidence to prove that material fact in issue, can be properly identified.

Pfennig v The Queen (1994-95) 182 CLR 461

Dieter Pfennig was charged with the murder of MB aged 10 years at or near the town of Murray Bridge in South Australia on or about 18 June 1989. MB left his home in Murray Bridge at 1.00 pm on 18 January 1989 to go fishing. He rode his bicycle, he carried with him his rod and a canvas bag containing fishing equipment. He was wearing casual clothes and took the family dog. He was seen at a location known as Sturt Reserve by various people up until about 3.00 pm, although the evidence was not precise. Later on the afternoon of 18 January MB’s bicycle, fishing rod and thongs were found neatly stacked at Thiele Reserve which was upriver and on the other side of the Murray River to Sturt Reserve. His shirt was found in trees on the bank of the river at the upstream end of Thiele Reserve. Nearby was a piece of twine tied to a tree stump. It was possible that his dog had been tied to the stump with that twine. One possible inference from the evidence so far was that MB had gone swimming at Theile Reserve and drowned. However, after his disappearance extensive searches were made. It is not necessary to set out the evidence in detail. It is sufficient to say that the prosecution case on the issue of whether or not MB was murdered was wholly circumstantial. It is also important to note that the case went to the jury on the basis that MB had either drowned or had been abducted for a sexual purpose and murdered by his abductor. It followed from the verdict of guilty that the jury had been satisfied beyond reasonable doubt that MB in fact had been abducted for a sexual purpose and murdered by his abductor. It was accepted that the jury had been properly and adequately instructed that they could not use the propensity evidence in relation to the issue of whether or not MB had been murdered. There was no point taken on the appeal to the High Court about these matters. The appeal to the High Court solely concerned the admissibility of the propensity evidence on the issue of the identity of the murderer.

The propensity evidence related to an incident which occurred on 30 December 1989, almost 12 months after the disappearance of MB. In 1990 Pfennig pleaded guilty to having abducted and raped H, a 13 year old boy, at Port Noarlunga. Port Noarlunga is a seaside town in South Australia approximately 80 kms by road from Murray Bridge. H gave evidence that he was riding a bicycle past the appellant’s white Kombie van at Port Noarlunga on 30 December 1989. The appellant inveigled him into entering the van and then closed the sliding door refusing to allow H to leave. The appellant then brought the bicycle into the van but later left it at the top of a cliff, first wiping it with a cloth. The appellant bound, gagged and blindfolded H and held him as a prisoner in the van and later in the appellant’s house.

The appellant sexually molested H in a variety of ways and subjected him to various indignities. These incidents occurred during the afternoon of the day on which the boy was abducted, the following night and morning. When the appellant was absent at lunchtime on that day, the boy managed to escape and telephone his father and the police.

The appellant’s former wife gave evidence that he telephoned her twice after his arrest. He told her that he had been arrested for kidnapping and sexual assault. In a later conversation after she asked why he had done it he said that he was lonely and he had been thinking of it on and off for the past 12 months. He said that he had just driven around, found somebody and threw them into the van.

Returning now to the evidence concerning the disappearance of MB, there was evidence once drowning at Theile Reserve had been rejected as a reasonable possibility and abduction for a sexual purpose was accepted as the only reasonable possibility, the leaving of MB’s equipment neatly stacked at Theile Reserve took on the appearance of a false trail being laid by MB’s abductor and murderer. As may be observed in the propensity evidence there was a suggestion that the appellant had left a false trail after abducting the boy H. Whilst this was a similarity it could not possibly be considered as a unique signature identifying the appellant as the abductor and murderer of MB. The laying of false trails by criminal offenders is not unheard of.

However, there was other evidence to link the appellant to the disappearance of MB. Police inquiries after the disappearance of MB led them to the appellant who gave a statement. On 18 January, the day that MB disappeared, a woman observed the appellant at Sturt Reserve sitting in his van watching her and two young children with her. A council employee saw an old white Kombie van speeding away from Sturt Reserve at about 2.45 pm on 18 January heading in a direction which would have eventually led to Theile Reserve. A woman who lived in a house overlooking Theile Reserve heard a commotion below her house between 3 pm and 3.30 pm. The noise was caused by a vehicle with a loud engine with its wheels spinning in gravel. She heard a dog barking in an excited manner. She gave evidence that the noise of the vehicle was similar to the noise made by the appellant’s van. A man who went to Theile Reserve water skiing at about 4.00 pm on 18 January saw a Kombie van parked in the vicinity of the place where MB’s bicycle and gear were found. His description of the van fitted that of the appellant’s vehicle. Daughters of the appellant gave evidence that the appellant had told them of dealings with MB at Sturt Reserve on 18 January. He admitted to them that he had spoken to MB at the Reserve and had patted the dog. One of the daughters said that the appellant had told her that he saw MB twice that day. The appellant told her that MB was trying to scale a fish with a thong so the appellant lent him a knife to scale the fish when MB brought the knife back the appellant asked him to put it in the van.

The majority judgment summarised its view about the cause of MB’s disappearance as follows at p 486:-

“Once accidental death is put aside, the evidence points inexorably to abduction as the cause of MB’s disappearance. The presence of the bicycle and neatly stacked belongings at Theile Reserve strongly suggests that the bicycle and the belongings were placed there with the intention of laying a false trail in order to create the impression that MB drowned at Theile Reserve. In addition Mrs Gould’s evidence of hearing the commotion is quite unexplained except on the hypothesis that MB was abducted and the commotion was associated with his abduction.
The evidence does not suggest that abduction would have taken place for any purpose other than sexual purposes. Kidnapping for the purpose of seeking ransom was not suggested; nor was mindless killing suggested and it exists only as a mere theoretical possibility. Abduction for sexual purposes was the most likely reason for any abduction.”

The majority then went on to consider the case against the appellant which identified him as the abductor and murderer.
“The prosecution case against the appellant based on the Murray Bridge evidence therefore pointed to abduction for sexual purposes. That required the presence in the area of a person of the requisite disposition equipped with the means of effecting an abduction. The appellant was in the area at the relevant time; on the H evidence he was of the requisite disposition; and he had a van which, on the H evidence (which was not in dispute) was used for just such a purpose on that occasion. More than that there was evidence that the appellant had spoken to MB on two occasions, patted his dog at Sturt Reserve, lent him his knife and asked him to put it in the van at Sturt Reserve. And, on the previous day, the appellant had invited two other children to accompany him in a van to visit other places in the vicinity. Furthermore, there was the evidence of his statement to his former wife after he had been arrested by the police in connection with the H abduction that he was lonely and had been thinking of “it” on and off for the past 12 months. In that statement he said that he had just driven around and picked up somebody and threw “them” into the van. In the context in which that statement was made, the reference to “it” must be understood as a reference to an abduction of a boy for sexual purposes, the abduction being effected by means of the van. The reference to the past 12 months extended to the time when the offence charged was committed. The former wife’s evidence, if accepted, established that, at the time when MB disappeared, the appellant was thinking about abducting a boy for sexual purposes. The H evidence indicated that the appellant was prepared to carry these thoughts into effect when an opportunity arose. The Murray Bridge evidence if accepted established that such an opportunity arose on 18 January 1989.”

Those familiar with criminal jury trials in cases in which the prosecution case, in so far as it relates to at least one material fact in issue, is circumstantial, will know that in such a case a judge is required to direct a jury that they may only find an accused person guilty if they are satisfied beyond reasonable doubt that the only reasonable inference to be drawn from the evidence is that the accused is guilty. The mystified look on a jury’s face when they are told that, in my experience is commonplace. It is necessary to explain the direction in the context of the particular case involved.

Once the jury in Pfennig’s case had determined that MB was abducted for a sexual purpose and murdered by his abductor the only reasonable inference consistent with innocence was that some other person with the requisite means and inclination to abduct a boy for sexual purposes and a willingness to put such inclination into effect was at Murray Bridge on the same day and in the same vicinity at about the same time as the appellant was. There was no evidence suggesting the presence of any such other person. The jury would have considered the matter according to their common sense, logic, reason, experience of the world and experience of their fellow human beings. If they were satisfied beyond reasonable doubt that there was no reasonable possibility of such another person being in the vicinity then they were entitled to be satisfied beyond reasonable doubt that the only reasonable inference to be drawn was that it was the accused who abducted and murdered MB. If a trial judge is to apply the same test as a jury applies then that must have been the reasoning applied by the majority of the High Court and by the trial judge. As the majority remarked at p 483:-

“In our view the principles stated above which derive from Hoch correctly state the law with respect to the admissibility of similar fact evidence. Those principles have not been disavowed by any subsequent decision of this Court and they were accepted and applied by the trial judge in this very case.”

At p 472 of the majority judgment there is set out two important passages from the trial judge’s ruling on the admissibility of the H evidence as follows:-
“In my opinion the evidence of the accused’s presence and behaviour in the area on January 17 and 18 including his dealings with MB on the afternoon of January 18, the opportunity his van gave him to carry out an abduction, the vehicle and dog noises heard coming from Theile Reserve, and the very unusual nature of the particular crime in question, combined to render the evidence of the H abduction admissible in proof of the identify of MB’s abductor. The nature of the crime in this case is of great importance. The more unusual the type of crime, the more difficult it may be to accept mere coincidence as a reasonable explanation. Less additional evidence may be needed in such a case to prove a connection between the propensity evidence and the alleged instant crime and so establish overall the requisite high degree of proof.”

And a little later:-
“It would, in my opinion, be an affront to common sense to postulate two persons in MB’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.”

Thus it may be seen that although the H evidence proved a propensity of a particular kind, it was not the proof of that propensity which gave it its probative value. It was the combination of the propensity evidence, the circumstances in which MB was abducted (once it was accepted he was abducted for a sexual purpose and murdered), and the virtually parallel presence of the appellant in the area of the abduction.

A few further observations in relation to Pfennig’s case may be useful. The propensity evidence in Pfennig’s case was not disputed. In my view, however, that did not particularly affect the admissibility, probative value, and the material fact in issue to which it was relevant. When considering the question of the admissibility of the evidence, in my view the trial judge would simply assume the truth of the H evidence and apply the same reasoning process he did to rule in favour of admissibility. Of course if the H evidence was disputed it would have been necessary for the trial judge to carefully direct the jury that they could only act on the H evidence if they were satisfied that it was true. Secondly, the other justices (Toohey and McHugh JJ) reached the same conclusions as the majority by a similar reasoning process. The critical difference between the majority judgment and those of the other justices is that the other justices did not identify the universal test stated in the majority judgment.

Makin v Attorney-General (NSW) 1894 A.C. 57

No discussion on the admissibility of propensity evidence would be complete without mentioning the famous case of Makin & Wife which was the first major case dealing wit the test for the admissibility of propensity evidence. The judgment of the Privy Council was delivered by Lord Herschell L.C. It dealt primarily with the test of admissibility. As to the evidence and reasoning process involved in that case the Privy Council judgment gives very little information. Once the test was accepted the Privy Council clearly took the view that the evidence was admissible and dismissed the appeal out of hand. In order to ascertain some of the detail of the evidence and the reasoning process involved it is necessary to look to the judgment of Windeyer J in the Full Court of the Supreme Court of New South Wales.

John and Sarah Makin were charged with the murder of a male infant said to be the illegitimate son of a woman named Amber Murray. Murray’s child was born on 30 May 1892. She advertised the child for possible adoption. The advertisement was answered by Sarah Makin who gave a false name. On Saturday, 25 June, Murray went to the home of the Makins in Redfern in Sydney where she saw both of them. She told them that she had a child for them to adopt. Mrs Makin said that she would take the child and Mr Makin said that they would bring it up as one of their own, educate it and they would take it because Mrs Makin had lost a child of her own two years old. The Makins declined to take any clothing for the child. They reassured Murray that they would take care of the child. They promised that she could see the child once a week. They would even take the child to her if she could not come to them. Mrs Makin said that they were soon moving to a healthier place, Hurstville. Murray said that she did not mind them getting a three shilling premium as long as they took care of the child.

A few days later Makin and one of his daughters went to the home of Murray. Murray did not have the premium at that time but Makin said that they would take the child then. He said that he would come back for the premium. He took the child. Later that evening Murray went to the house. She took some papers, the premium and some clothes and gave them to the Makins. Makin reassured Murray that she could see the child when she wished. They showed Murray the child on that night and she left. She never saw the child again. She said that when she gave the child to the Makins it was in good health, a fine child, it had no sores. She gave evidence that the Makins used false names during this contact. There was sporadic contact between Murray and the Makins for a short period thereafter but the Makins appeared to be avoiding her. Instead of moving to Hurstville they moved to MacDonald Town about 7 or 8 miles away. In summary the deceased infant having been delivered to the Makins on the night of Monday, 27 June, the Makin family on the following Wednesday, 29 June on a dark and rainy night removed from the house where the deceased baby was last seen alive to MacDonald town. Clarence Makin, a daughter of the prisoners who knew the deceased baby well swore that it was not removed with the family. Other important evidence concerning the Murray infant was described by Windeyer J as follows:-

“There was indeed evidence given showing that John Makin on 4 July came to Mrs Patrick’s, the midwife who nursed Murray with a baby which he represented to be Murray’s but which was ill and covered with sores. As it was admitted however by the prisoners’ counsel in argument before us that there was evidence showing that the deceased baby was found buried in the back yard of the house in George Street, Redfern where the deceased baby was last seen alive. The presumption is overwhelming that the deceased baby was dead and buried before the prisoners left the house on the night of 29^th and the representation by the prisoner John Makin on 5^th July that another baby was that child can only be regarded as the fabrication by him of false evidence to hide the fact of the death and secret burial of Murray’s baby and to account for its death on the possible subsequent discovery of it by showing that it was ill and covered with sores when it was last seen.”

On 11 October a man engaged in digging a drain in the yard of the house occupied by the Makins at MacDonald Town to which they had removed on 29 June and which they left about the middle of August found the remains of two infants. Further search was made which resulted in the finding of five other bodies buried in the same yard. On 9 November a search was made of the yard of the house in George Street Redfern where the Makins had lived when they took possession of Murray’s child and prior to their removal to MacDonald Town. The corpses of four babies were found. The clothing on one of them was so positively identified as to leave no doubt that it was the body of Amber Murray’s child. Subsequently the bodies of two more babies were found buried in the yard of another house in which the prisoners lived after leaving the house in Macdonald town. There was further evidence that no deaths had been registered by the Makins for either of the houses in Redfern or MacDonald Town. There was evidence that Mrs Makin had pawned articles of clothing which had been given to her by Amber Murray when handing over the Murray infant to her care. There were therefore a total of thirteen bodies of infants found buried in three different yards of homes occupied by the Makins. One of those was positively identified as being the infant child of Amber Murray. Although the child of Amber Murray could be positively identified the other bodies could not. All bodies were in such a state of decomposition that no cause of death could be identified.

The prosecution also called evidence from four women, the mothers of illegitimate children whose babies had been given into the care of the Makins and who had never been seen again. In each case the mothers paid small financial premiums to the Makins. There was evidence of deception and the use of false names by the Makins from these women.

The Makins were charged with one murder only, that of the child of Amber Murray. Therefore evidence relating to the location of the bodies of other infants and the circumstances of other infants coming into the care of the Makins was propensity evidence. Although the Makins did not give evidence the case advanced by them at trial was that the Murray child had died of natural causes or perhaps put more accurately, the prosecution could not prove beyond reasonable doubt that the child was murdered. There was no serious issue that if the child had been murdered it must have been the Makins who did it.

The test for admissibility adopted by Windeyer J is no longer relevant. However, the reasoning process where by the propensity evidence could be used to prove the murder of the Murray infant was a matter of logic, reason and objective experience rather than a matter of law. Windeyer J offered an analogy as follows:-

“Cases can easily be suggested where the fact of other deaths being proved might, though the mode of killing was obscure, leave no doubt whatever that the death in question at the trial was a murder. For instance, if A is found cremated by a camp fire so completely as to leave no trace of his mode of death, on defence by B, who was the last person seen at the camp fire with A; that A having died of natural causes, he cremated him because he had no means of burying him, and did not wish to allow wild dogs to devour the corpse, evidence that other bodies of men seen travelling with B were also found totally cremated at other places at which the prisoner camped along the road taken by him, would surely be evidence to show that A had been murdered, and had not died naturally as a series of natural deaths of healthy men when camping out with a travelling companion and their subsequent cremation, would be so extraordinary as to leave no doubt when coupled with motives or other evidence that they had been murdered.”

The learned judge went on to discuss the Makin case itself as follows:-

“A family might be unfortunate enough to take a house in the back yard in which babies had been buried by a former tenant; but no-one could believe that it was by mere coincidence that a person took three houses in the backyards of which former tenants had secretly buried babies. The finding of such corpses secretly disposed of, like the finding of the cremated bodies at the different camp fires in the case suggested, went to prove not only that the death of Murray’s baby was unnatural but that the body had been secretly disposed of to conceal the crime, which caused the unnatural death, in as much as people are not in the habit of concealing the death of infants dying naturally by burying them in backyards.”

It would be useful to apply the Pfennig test to the evidence in Makin’s case. In essence there was evidence that five children including the Murray infant were given up to the Makins for adoption with the payment of small premiums insufficient to pay for their care for other than a relatively short period. There was evidence that the Makins had been deceptive in a variety of ways about their possession of such children and had behaved deceptively to prevent the mothers of children seeing them after they had been given to the Makins. There was then the evidence of the 13 infants including the Murray infant being found buried in the yards of homes occupied by the Makins. As a matter of logic, reason, common sense and human experience it would be fanciful to think that any of them died of natural causes. The only reasonable inference therefore was that they were all murdered and that included the murdering of the Murray infant with whose murder they were charged.

An important consideration was the number of “propensity incidents” involved. It was certainly not the only important consideration. However, if for example, only two infants had been found buried in a yard occupied by the Makins that might not be enough to overcome as a reasonable possibility that they had both died of natural causes and had therefore not been murdered. Secondly, there may be a threshold number in some cases depending upon the totality of the evidence. For instance, in Makins case there may have been a number of bodies found (say four) which, coupled with the other evidence, might have excluded any reasonable inference that they all died of natural causes but four might not be enough to exclude a reasonable possibility that one of them might have died of natural causes and the others murdered. In other words, if the evidence in the Makins case had left open the reasonable possibility that one of the infants had died of natural causes then that one could have been the Murray infant with whose murder the Makins were charged. It is obvious that the Supreme Court of New South Wales, the Privy Council, and the jury at the Makins trial considered that on the whole of the evidence including the numbers the only reasonable inference to be drawn from the whole of the evidence, including the numbers, was that they had all been murdered.

Martin v Osborne (1936) 55 CLR 367

The respondent was charged under the Transport Regulation Act 1933 of Victoria that he was on 1 November 1935, the driver of a commercial passenger vehicle which was operated on a public highway without the vehicle being licensed in accordance with the Act. The bench of the High Court consisted of Latham CJ, Stark, Dixon, Evatt and McTiernan JJ. At p 373 Dixon J set out the essential issues and summarised the relevant evidence as follows:-

“In support of the prosecution ample proof was adduced that the defendant drove a motor vehicle on a public highway, that it carried passengers and that it was not licensed as a commercial passenger vehicle. The question in the case relates to the sufficiency and admissibility of the evidence offered to establish that the passengers were carried for reward. The charge was that he operated a car – a hupmobile – between Ballarat and Melbourne on Friday 1 November 1935. The proof given was circumstantial. The circumstances relied upon were briefly these. The defendant’s brother named Ernest Osborne had a commercial passenger licence in respect of a six cylinder Chrysler car. This car with a number of other cars was seen to stand in one of the principal streets in Ballarat outside a tearoom or sweet shop which bore a sign to the effect that the 8 cylinder sedan cars of Osborne’s Motor Service from Ballarat to Melbourne left there daily. Not far away was a garage. On the morning on Wednesday, 30^th October 1935 the defendant and the hupmobile car and other cars were outside the shop. Baggage was handed in and out of the shop and into various cars. The defendant who took part in handling the baggage placed some of it in the Hupmobile in which four passengers sat. A lady with a suitcase then alighted from a passing bus and the defendant took her suitcase to the car in which he gave her a seat. He then drove down to Melbourne where he dropped his passengers at various points, some of them taking rugs or suitcases. On the same afternoon the defendant and the Hupmobile car was stationed at the corner of Spencer and Collins Street in Melbourne. At intervals three passengers got into the car which the defendant then drove off on the road to Ballarat. In Footscray the car picked up another passenger whom the defendant helped in. The car was not followed further than Backus march. On the following morning, Thursday 31^st October, the defendant and the Hupmobile were outside the shop in Ballarat. A passenger sat in the car. The defendant spoke to another man who drove the car away. It was returned shortly with two more passengers and a quantity of luggage. After standing a little, it was driven off, but whether by the defendant or someone else did not appear at any rate by direct evidence. Two hours later it was standing empty at the corner of Spencer and Collins Street in Melbourne with the defendant beside it. An hour passed and it was still there but with people init. An Auburn car stood near it. The Hupmobile and its passengers were then driven off but not by the defendant, who remained standing in the street. What he did then did not appear but next morning the date laid in the charge, he was outside the shop in Ballarat. The Auburn car was driven up to the shop carrying passengers and an hour or more later it carried down to Melbourne a number of passengers, including the defendant who rode next to the driver. On the afternoon of that day the Hupmobile and the Auburn cars were again standing at the corner of Spencer and Collins Street and the defendant was there also. Two ladies and a child were seated in the Hupmobile. The Auburn drove off first. A little later the Hupmobile with the defendant in charge began its journey to Ballarat. On the outskirts of Baccus Marsh it stopped to pick up a youth. The car would not start again and the youth went for a mechanic who remedied the defect. It carried the youth as a passenger to Ballarat where he was dropped at the corner of the street. A lady and a child were dropped at another point. There the defendant spoke to the officers who were following him and said that they need not follow him further as the remaining lady was a friend of his wife’s and he was taking her home. As it was raining hard the officers took his word for it.”

Thus the evidence of the inspectors of what occurred on 1 November 1935 was circumstantial evidence relevant to the offence charged. What occurred on the two previous days was propensity evidence. I am not so much concerned with the basis upon which Dixon J concluded that the evidence was admissible but the reasoning process which allowed it to be used in proof of the offence charged. However, as may be observed he adopted the test which although expressed a little differently, appears to be not dissimilar to that mandated by the majority judgment in Pfennig’s case. At p 375 Dixon J said as follows:-

“If an issue is to be proved by circumstantial evidence facts subsidiary to or connected with the weighing fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the facts to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.”

At p 367 his Honour went on as follows:-

“The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude as unreasonable any other explanation or hypothesis than the truth of the fact to be proved. For example, the probability that the neglected condition of a barber’s implements was the cause of his customer contracting barber’s itch becomes much higher when it appears that about the same time two more of his habitual customers also contracted the disease (Hayles v Kerr). If four close relatives of a woman dwelling in her house and eating meals prepared by her, die of arsenic or poisoning, one after another within a few month the inference that she wilfully administered the poison has more support than if one death only occurred in such circumstances. (R v Geering). The discovery of a number of dead bodies of infants buried in the ground at different premises lately occupied by a baby farmer greatly increases the probability of her having murdered an infant entrusted to her charge which has disappeared (R v Makin); (R v Knaoor). An inference from circumstances that on a specific occasion an act of adultery or incest took place between a man and a woman may be uncertain until it appears that a previous sexual relationship existed between them but the addition of that fact may remove doubt. (R v Ball; McConville v Bayley; R v Goldworthy). For a medical man or midwife frequently to procure abortion makes it unlikely that his or her proved association with a specific case of abortion was not criminal (R v Bond; R v Graham). The repetition by an accounting party of the same error or kind of error in calculating at excessive amounts the totals of his disbursements makes it probably that the overstatement was fraudulent (R v Richardson; R v Proud; R v Garsed; R v Hiddilston; Hardgrave v The King; R v Finlayson). In the same way repeated utterings of coins or notes in fact counterfeit or forged, and repeated obtainings of money by representations in fact untrue increased the probability that on a specific occasion a coin was uttered or a pretence made with guilty knowledge and intent (R v Whiley; R v Forster; R v Weeks; R v Francis).
In the present case the evidence to which the defendant objected when combined with that describing the actual journey laid as the offence shows that for three consecutive days the Hupmobile car behaved exactly as service cars do, and that for the greater part of that time it was under the control of the defendant. It appeared to be following a regular course of business in standing at convenient rendezvous for passengers, picking up and setting down passengers where they desired at either end of the journey, carrying their luggage and plying between large cities upon a set route. The place of rendezvous at Ballarat exhibited a sign notifying that a service was conducted from that point, although, it is true, by cars of a description to which the Hupmobile did not answer. Different passengers were carried on each journey and they possessed no common characteristic. In my opinion such evidence was admissible because it tended to show that the defendant was operating the car regularly for the carriage of passengers between the two cities, and thus to make it improbable that the passengers were not carried for reward.”

In considering the evidence in this case Chesterman J said at p 22:-

“The similarities which counsel for the respondent identified on the appeal were that –

(a) Both complainants were female

(b) Both complainants were about four years of age when the appellant’s molestation began

(c) Both complainants were the appellant’s stepdaughters.

(d) The appellant threatened both complainants “with a spectre of adverse consequences to the family if his conduct was disclosed”.

(e) In each case the offending was regular and protracted.

(f) The conduct was similar in that both were fondled in the genital area; both were kissed by the appellant who inserted his tongue into their mouths and both were encouraged to masturbate the appellant.

(g) The appellant rationalised his conduct to each complainant on the basis that he was acting in their best interests.

This categorisation of the evidence glosses over some substantive divergences in it. The appellant gave as his motivation for his conduct towards K the fact that he entertained a genuine passion for her. His express motivation for molesting the complainant was callously impersonal. The differences cannot be assimilated by describing both explanations as a “rationalisation that the appellant was acting in the girls’ best interests”. The nature of the threats given to discourage the complaint were also dissimilar in content and effect.

Nor is it realistic to describe the course of offending and the nature of the conduct as substantially similar. If one must scrutinise the acts with particularity it is evident that the appellant’s assault on K, and his attempts at rape, have no parallel in his dealings with B. Of course there are similarities in some of the acts of indecency. These are inevitable in the commission of offences of that type. Given the distribution of erogenous zones in the human body, and the organs available for arousal and satisfaction, there is necessarily invariability in the behaviour of offenders who seek gratification from children. Indeed, one is compelled to agree with the author of Ecclesiastes not only that all is in vain, but also that nothing is new. This observation necessarily depreciates the significance of similarities in acts said to constitute indecent dealing. Even so, there are differences in kind and degree between the appellant’s dealings with K and the those concerning B. The former were more aggressive and intrusive. It is not necessary to dwell on the particulars. The differences are apparent from the summary of the evidence.

The points of “substantial” or “striking” similarity come down to the fact that –

· Both complainants were young girls

· Who were the appellant’s stepdaughters.”

In my view this line of reasoning very similar to the line of reasoning in the judgment in which Chesterman J joined in TKO. Rather than analysing any similarities to see if they bore upon the improbability of similar lies, His Honour concentrated on a search for dissimilarities. Similarities were effectively dismissed as something that anyone might do. The final two points identified by His Honour, in my view, are not substantial or striking similarities at all. They are identical features. Since His Honour dismissed anything else as being of any significance one assumes that in His Honour’s view only identical features could contribute to the account of K having any probative value in respect of potential support for the account of B.

I do agree with His Honour’s rejection of item (g) of the similarities which the respondent identified, as having no foundation in the evidence. However, I am unable to find in the summary of evidence set out by His Honour anything suggesting that the accused’s “express motivation for molesting the complainant (i.e. B) was callously impersonal.” I would certainly agree that the accused’s alleged treatment of B was, objectively, callously impersonal. It is obvious on her account that she made it entirely clear to him, that she did not like him doing such things to her and she did not want him to do such things to her. He ignored these objections and continued over a very lengthy period of time to regularly and frequently sexually molest her against her express wishes for his own sexual gratification. However, a similar callously impersonal treatment of K is very apparent from her account. On numerous occasions she told him she did not want him to persist. Sometimes she cried and begged him to stop. As His Honour expressly identified at p 19:-

“The count of assault occasioning bodily harm had its origins in the appellant’s manner of chastising K. He inflicted corporal punishment by means which were clearly meant to excite the appellant rather than to correct the child.”

This, in my view, is properly described as callously impersonal.

I will set out what I consider to be the relevant features of the evidence of both K and B which, in my view, bear upon the improbability of similar lies.

(a) At the time they say the molestation occurred each of them was his stepdaughter, living in his household, and substantially under his control.

(b) Both say the molestation commenced when they were about four years of age.

(c) Both describe the molestation continuing over many years, 10 years in the case of K, five years in the case of B.

(d) Both describe the molestation as occurring very frequently over the whole period; several times a week in the case of K, every day or every second day in the case of B.

(e) Primarily, the molestation of both girls involved fondling of the genitals. On occasions, in relation to both girls the accused went further than simply fondling the genitals. It is obvious that this occurred more often, with a greater variety, and with more seriously intrusive behaviour in the case of K than it did in the case of B. It must be remembered however that the period over which the accused molested K was approximately double that over which he molested B. Further, as Mackenzie J points out in his judgment at p 16:-

“…while the transcript is not always a certain guide, it suggests that the second complainant was always more overtly resistant to his conduct, although, plainly, neither wanted him to continue to engage in it.”

Nevertheless it is still a common feature of the account of both girls that fondling of the genitals was by far the most usual form which the molestation took.

(f) As to the additional and varied forms of molestation K described occasions upon which the molestation included clasping her hand over his penis and masturbating. B described the same thing happening on two occasions. K described a number of attempts to penetrate her vagina. In the judgment of Mackenzie J he enumerates an occasion described by B when her pants were taken down, the accused was lying on top of her asking her to make love to him. When she kissed him on the cheek having not understood the implications of what he had said, he said that she should not be worried because he would not make her pregnant. The incident was interrupted by the arrival of a relative. In my view the obvious inference from this account if true, is that the accused intended to at least try to penetrate her vagina with his penis.

(g) On both accounts the accused was callously indifferent to the girls’ objections to his molestation of them.

(h) K gave an account of an incident during which he used a vibrator upon her which she found distressing and implored him to stop. He refused, telling her to relax and assuring her that she would “enjoy it”. B described an occasion when the accused inserted fingers into her vagina. She told him to stop because she found his activities unpleasant. She asked him then or a little later why he dealt with her in that way. He asked if she liked it and the complainant said no. The appellant replied, “Well you’ll learn to like it.”

(i) On the same occasion referred to above and when he first started to molest her, B further said that the accused stated, “This is what fathers and daughters do together.” At the time that the events described by B were happening, this was, for the accused, an undisputed historic fact.

If the accused was innocent of the offences in relation to B everything which B described in her evidence was a lie. As a liar she was completely free to fabricate any account of molestation by the accused which she chose. She could have described molestation on one occasion, just a few, or just occasionally over an extended period of time. In terms of the form of molestation she could have chosen a less serious form, a more serious form, a greater variety of forms of molestation. If she was so motivated by ill-will towards the accused as to fabricate an account of sexual molestation she could have easily included in her account many attempts at penile penetration or even many successful attempts at penile penetration. However, if she was lying, she just happened to choose for her lie a pattern of molestation which whilst not identical to the pattern of molestation described by K, was significantly similar to it in a variety of ways. In my view it is so significantly similar that my reason, my logic and my experience of life (including judicial experience) and my experience of my fellow human beings suggests to me that it is highly improbable that B would fabricate an account of such similarity to that of K’s. In my view it is beyond coincidence.

The last two items mentioned above are of considerable significance. Even if all of the previous matters I have mentioned could be written off as just a coincidence in my view these two cannot. In my view it would be highly unlikely that a stepdaughter fabricating an account of sexual molestation by a stepfather would include such features in such fabricated account at all. But when those features of B’s account are looked at in light of the undisputed evidence that the accused made a similar remark to K and sexually molested K frequently over an extended period of time (“this is what fathers and daughters do together”) the improbability of B telling lies so similar to the account of K is remote in the extreme.

In my view the only reasonable view of the evidence of K is that it supports an inference that B is telling the truth. That is, it supports an inference that the accused is guilty of the offences against B.

Returning now to the judgment of Chesterman J I will repeat the final point set out at p 27 as follows:-

“The circumstantial evidence constituted by the similar facts must have no reasonable explanation other than as supporting an inference that the accused is guilty. If there is a rational view of the evidence which is consistent with innocence the evidence may not be admitted.”

In His Honour’s analysis he said as follows:-

(a) The test is whether the evidence has some cogent relationship with the other evidence, so as to necessarily support an inference that the accused committed the offence. The evidence must be inconsistent with innocence.

(b) Nowhere do the cases suggest that the function of similar fact evidence is to enhance the credibility of a complainant. Logically, it could not do so except by showing a propensity for indecent dealing with young girls. This use of similar fact evidence is forbidden.”

In my respectful view His Honour was wrong. The function of propensity evidence is to support the credibility of a complainant. It is called corroboration. It corroborates the complainant by proving the improbability of similar lies. As I earlier pointed out, His Honour failed to appreciate that the way in which the propensity evidence enhanced the credibility of B in relation to the material facts in issue, was by demonstrating the improbability that B had fabricated an account of sufficient similarity to the truthful account given by K.

Reasonable minds may differ as to the inferences to be drawn from facts. However, in my view, this judgment is inconsistent in principle with Hoch and the prior decision of the Court of Appeal in Noyes.

I now turn to the judgment of McPherson JA. Much of what is contained in His Honour’s reasons is similar although expressed differently to that contained in the judgment of Chesterman J. At p 6 His Honour said:-

“What, according to Mason CJ, Deane and Dawson JJ in their joint judgment in that case (182 CLR 461,484), is, however, essential before evidence of similar facts becomes admissible is that it must be such as to raise:
“the objective improbability of some event having occurred other than as asserted by the prosecution; in other words, that there is no reasonable view of the evidence, consistent with the innocence of the accused…Accordingly, the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed.”

This is of course, the test applied to circumstantial evidence generally: Peacock v The King (1911) 13 CLR 619, 634, as indeed was recognized by their Honours themselves in Pfennigv The Queen (1995) 182 CLR 461,483. When one comes to apply it to the evidence of the complainant in this case there can only be one answer to the question posed. A rational or reasonable view of K’s evidence that is consistent with innocence is available here. It is that, although the appellant committed the offences against K, he may not have performed the acts that B claimed were committed against her.”

Although the judgment refers to Hoch there is no express or implied recognition that the “central question is that of the improbability of similar lies.” It is clear from the way in which the judgment is expressed that His Honour applied a striking similarity test. He remarked at p 5 as follows:-

“But criminal and tragic though it unquestionably is, it seems to me to be difficult now to characterise many of the acts of indecent dealing with such girls that are commonly accounted in prosecutions for such offences as being, without something more, “strikingly similar” as distinct from similar to many other offences of that kind. Offences of the same kind are almost always likely to be similar and even substantially so.”

I would not disagree with His Honour’s observation. However in my view such observations are not to the point. The real point is whether fabricated accounts of such dealings are commonly encountered in prosecutions for such offences. I suspect His Honour’s experience including judicial experience is similar to mine in that fabricated accounts are rare. It may have been that which led him to remark elsewhere as follows:-
“Stating the matter in that way may suggest an impression that B was not telling the truth at the trial or that her testimony was in some respects not reliable. Nothing could be further from what it is intended to convey here. She may and probably was telling the truth in what she said in her evidence.”

In my view Mackenzie J adopted the correct approach to the ruling on the admissibility of K’s evidence. He identified the central question as being the improbability of similar lies. In particular he alone noted that the trial judge identified that as being the significant issue and referred to Noyes as authority for the proposition.

Appendix G

R v Marshall [2006] QCA 220

This is a judgment of the Court of Appeal of Queensland. The leading judgment was delivered by Keane JA with whom McMurdo P and Jones J agreed. The appellant was tried in the District Court at Townsville on two counts of rape by digital penetration. The first was alleged to have occurred at Alva Beach between 1 May 2003 and 21 October 2003 upon a girl, Ms S. The second count of rape was alleged to have occurred at Alva Beach on 22 June 2004 against a girl Ms W. I will firstly set out some background evidence which I have substantially taken from the judgment of Keane JA before referring to the evidence of each complainant in relation to the incident:-

“On each occasion the appellant was staying at Alva Beach at the home of the mother of his girlfriend Ms K. Each of the complainants knew the appellant and Ms K. Another friend of Ms K was Ms F.

In relation to the first count the Crown case was that during a night in the school holidays in mid-2003 while the appellant, Ms K, Ms W, Ms S and Ms F were sleeping on mattresses on the floor of the same room in the home of Ms K’s mother the appellant inserted his fingers in Ms S’s vagina while she was sleeping.

In relation to the second count the Crown case was that during a night in the school holidays in mid-2004, while the appellant, Ms K and Ms W were sleeping on mattresses on the floor of the same room, the appellant inserted his fingers in Ms W’s vagina while she was sleeping.”

And a little later:-

“In relation to the first incident during the school holidays in mid-2003 Ms S accompanied Ms W and her family on a holiday to Alva Beach. Ms K lived with her mother in a house at Alva Beach around the corner from Ms W’s family holiday home. The appellant was living with Ms K in her mother’s house.

According to Ms S a couple of days before she and Ms W’s family were due to return to Ipswich at the end of the holidays, Ms S and Ms W arranged to sleep over at Ms K’s house. During the afternoon of the sleepover they were joined by Ms F.”

Later in the judgment his Honour set out brief background evidence in relation to the second count:-

“In relation to the second count on the indictment, Ms W said that, during the June 2004 school holidays, Ms W again travelled to Alva Beach with her parents. She stayed at Ms K’s mother’s house on the night of 22 June 2004. Ms K and the appellant were also there. The three of them watched TV until about 10.00 pm to 10.30 pm. She then went to bed in Ms K’s bedroom. There were two double mattresses on the floor. Ms W slept on one of them. Ms W later heard Ms K come into the bedroom and, later still, she heard the appellant come into the bedroom and lay down.”

In relation to the specific incidents the complainants gave the following evidence:-

“Ms S said that some time during the night she was awakened by something brushing against her leg. She dozed off back to sleep, but awoke again to find the appellant “curved around her body” with one of his hands up her pants and inserting his fingers inside her vagina. As he was doing this, he asked her, a couple of times to “come outside”. She said that she “froze” and said nothing but was then able to push the appellant away from her. He got up and walked out of the room. She remained in bed until the next morning when Ms W awoke.”

In relation to the second incident his Honour summarised the evidence as follows:-

“Ms W said that she fell asleep but was awakened by the appellant with his hand up her skirt. She pushed his hand away, but the appellant then placed his hand over her mouth, and, by placing his other hand back under her skirt, inserted his fingers into her vagina. He did this for about a minute, and, when he had finished, he placed something sharp to Ms W’s throat and warned her that if she told his girlfriend or anyone else he would slice her throat.”

It is obvious that if each complainant was believed as to those circumstances the accused would be guilty of both offences. If he had inserted his fingers into the vagina of each of the girls in the circumstances they described then it would be expected to automatically follow that he had done so without their consent.

When ruling that the evidence was cross-admissible the learned judge of the District Court gave brief reasons as follows:-

“The probative value of the evidence of one on the other lies in its ability to support or confirm the direct evidence, supported by the admissions of the accused, of each complainant. The material fact in issue so far as each offence is concerned is whether the accused placed his finger or fingers in the vagina of each complainant. That involves an issue of whether the complainant in each is telling the truth in describing the offence. There is, in my view, an objective improbability of the complainant in count 1 telling a similar lie to the account given by the complainant in count 2 and the same applies to the complainant in count 2 telling a similar lie to the complainant in count 1.”

In dealing with the question of admissibility Keane JA said as follows:-

“Whether the evidence relating to the complaint by Ms S was admissible in the Crown case relating to the complaint by Ms W, and vice versa, is to be determined in accordance with the principle stated by the High Court of Australia in Pfennig v The Queen and Phillips v The Queen.”

His Honour then went on to set out a lengthy passage from the judgment of the High Court in Phillips emphasising the need for as strong degree of probative force, a high level of cogency etc before the evidence can be admitted. I will not repeat his Honour’s judgment. I have no doubt that the long passage in Phillips’ case to which his Honour referred were important words of caution. However they do not state the Pfennig test. The Pfennig test is to the effect that the evidence is admissible and only admissible if the trial judge is satisfied that there is no reasonable inference consistent with innocence. In a case like Marshall, as in Hoch’s case the central question was the improbability of similar lies. In discussing the question Keane JA said:-

“The trial judge concluded that the evidence of each complainant was admissible in the case concerning the other, not because it demonstrated a propensity on the part of the appellant to digital rape, but because of the improbability that both complainants could have lied, or been otherwise unreliable, in their evidence as to what transpired whilst sleeping in the same room with the appellant and Ms K. The trial in this matter preceded the decision of the High Court in Phillips v The Queen. In that case the High Court made it clear that the improbability that complainants would tell similar lies on the issue of consent to sexual activity was not a basis for displacing the exclusionary rule against the admission of similar fact evidence. The High Court accepted that the exclusionary rule might be displaced by reason of the probative value of the improbability of similar lies by complainants where the evidence when to proof of the issue whether the accused had done the acts of which the complainants complained. In such a case the High Court emphasised the continuing necessity for a “strong degree of probative force” if the exclusionary rule is to be displaced and that “striking similarity” would usually be necessary if the evidence of similar facts is to have a sufficiently strong degree of probative force to displace the exclusionary rule. IN this latter regard, it is significant for the proper determination of this appeal that the High Court in Phillips v The Queen specifically regarded as insufficient for this purpose similar fact evidence indicative of an accused’s recklessness in persisting with offending conduct near other people who might be attracted by vocal protests”. On the approach taken by the High Court in Phillips v The Queen the brazen opportunism in which the appellant engaged in this case, if the complainants are to be believed, would be characterised as “unremarkable and not uncommon” for the purposes of determining whether this evidence had sufficient probative value to displace the exclusionary rule. Furthermore, the dissimilarities in the present case are relevant to this assessment. Especially strong in this regard are the circumstances that Ms S and the appellant had been drinking heavily, the appellant’s alleged misconduct with Ms S was associated with an invitation to “come outside” and that the appellant physically threatened the safety of Ms W. In these circumstances it is not possible to sustain the conclusion that there was an underlying pattern to the appellant’s alleged attack on each of Ms S and Ms W.”

His Honour went on to rule that the evidence was inadmissible.

The justices of the Court of Appeal were of course entitled to apply their objective reason, commonsense and experience of the world and their fellow human beings to the evidence in considering the probability question. However I respectfully disagree with them and with the reasoning process adopted. I have discussed exhaustively the judgment in Phillips v The Queen at appendix A. I will not repeat any of what I have said there. I simply refer again to the succinct words of Lord Cross of Chelsea in Boardman’s case as follows:-

“As I see it, however, the point is not whether what the appellant is said to have suggested would be, as coming from a middle aged active homosexual, in itself particularly unusual but whether it would be unlikely that two youths who were saying untruly that the appellant had made homosexual advances to them would have put such suggestions into his mouth.”

In other words applying that to the present case the question was not whether what the witnesses described the appellant doing was “unremarkable and not uncommon”. The question was, what was the probability of the two girls hitting upon such similar fabricated accounts independently of each other? There was in the case evidence giving rise to a real risk of suggestion. Both girls gave evidence that the first girl S told the second girl W of what she claimed the appellant had done to her during the night when they got up the following morning. That certainly in my view raised an issue of a risk of suggestion. However that was not a matter which the trial judge nor the Court of Appeal were entitled to take into account on the question of admissibility by reason of s 132A of the Evidence Act. In deciding this issue Keane JA ignored the similarities and concentrated on dissimilarities. I have no doubt that substantial dissimilarities in the accounts of two witnesses may make their two accounts so substantially different that it could not be said that their accounts are sufficiently similar to be used as support for each other to demonstrate the improbability of similar lies. But in my respectful view it is fanciful and outside the realms of common objective experience to expect that a person committing a digital rape on occasions 12 twelve months apart will do exactly the same thing on both occasions. Offences such as rape are opportunistic. A person with a propensity to rape is hardly likely to wait for precisely the same circumstances to arise before he commits such an offence. The point was not whether their evidence, if believed, pointed to the appellant behaving in a way which was “unremarkable and not uncommon”. The point was whether it was improbable that the two girls would come up with such similar lies independently of each other. In fact, in my respectful view, what the girls described the appellant doing was remarkable and most uncommon. In my experience of life the vast majority of young men never put their fingers in the vaginas of sleeping girls with whom they have nothing more than a casual acquaintance. Further, those few who might, in the vast majority of cases, would only do so if the girl was alone, not sleeping in a room with another girl or other girls immediately beside her, particularly their own girlfriend.

The admissibility of the evidence in my view needed to be approached in the following way. The accused’s case, if he was innocent, both in his record of interview with police and by the conduct of the trial by his counsel was that nothing happened at all. So this was not a case in which could be said that the girls might have falsely converted a true fact namely that he inserted his finger into her vagina from that having occurred with the girl’s knowledge and consent to it having occurred whilst she was asleep. On the basis upon which the accused asserted his innocence (although he had no obligation to prove it) the factual issue in the case was whether he inserted his finger into the vagina of each of the girls at all. It was that fact to which the propensity evidence related. Given the general rarity of false complaints it seems to me improbable that he would be the victim of two girls making false complaints against him in a period of a little over 12 months. But what seems to me to be enormously improbable is that they would fabricate a false complaint of him doing exactly the same thing to them independently of each other. If he was innocent then they were liars, they were not bound by the truth and because if he was innocent nothing happened at all they were completely free to fabricate any indecent act which struck their fancy. I can think of many forms of indecent acts which these girls could have thought of, of which to accuse the appellant. But in this case, if the accused was innocent they both chose precisely the same act independently of each other.

But there is more. If the two occasions which were undisputed were the only two occasions upon which the two girls had contact with the appellant then it would not be surprising for them to choose that occasion as the foundation for a false complaint of sexual assault against the appellant. In both instances the girls were at Alva Beach for holidays, it was not a brief visit. At that time the appellant was living at Alva Beach at the home of his girlfriend K’s mother. It is obvious that the two complainant girls and the third girl Ms F were friends with the appellant’s girlfriend. In my view it is implausible to think that the only time these two girls ever had any contact with the appellant was on the actual night of the sleepover. That being so, they could have chosen some other occasion in which to set the scene for their false complaint. In my view it was highly improbable that they would both choose almost precisely the same set of circumstances in which to base their fabricated accounts, which they must have been, had the accused been innocent.

In my view, the improbability of each of the two girls fabricating lies that the accused did precisely the same thing to her in such closely similar circumstances was so great that the only reasonable inference to be drawn was that they were both probably telling the truth.

CITATION:	R v JCM [2007] QDC 211
PARTIES:	R v JCM
FILE NO/S:	526 of 2005
DIVISION:
PROCEEDING:	Criminal Trial
ORIGINATING COURT:	District Court, Cairns
DELIVERED ON:	18 May 2007
DELIVERED AT:	Cairns
HEARING DATE:	2 December, 2005; 10 August 2006; 2 October 2006
JUDGE:	White DCJ
ORDER:
CATCHWORDS:
COUNSEL:	Mr M Connelly for the Director of Public Prosecutions Mr J Harrison for the accused
SOLICITORS:	Director of Public Prosecutions O’Reilly Stevens Bovey for the accused

CNT	DATES	OFFENCE	CMPLT
1	1/1/1983-31/12/1985	Wilfully did an indecent act with intent to insult or offend	DKP
2	1/1/1983-31/12/1985	Unlawfully and indecently dealing with a child under 16/under 14	DKP
3	1/1/1983-31/12/1985	Unlawfully and indecently dealing with a child under 16/under 14	DKP
4	1/1/1983-31/12/1985	Unlawfully and indecently dealing with a child under 16/under 14	DKP
5	12/4/1983-6/10/1983	Unlawfully and indecently dealing with a child under 16/under 12	PJS
6	12/4/1983-6/10/1983	Wilfully did an indecent act with intent to insult or offend	PJS
7	12/4/1983-6/10/1983	Wilfully did an indecent act with intent to insult or offend	PJS
8	12/4/1983-6/10/1983	Unlawfully and indecently dealt with a child under 16/under 12	PJS
9	1/8/1984-1/10/1984	Unlawfully and indecently dealt with a child under 16/under 14	PJS
10	1/8/1984-14/12/1984	Unlawfully and indecently dealt with a child under 16/under 14	PJS
11	14/12/1984	Unlawfully and indecently dealt with a child under 16/under 14	PJS
12	14/12/1984-25/1/1985	Wilfully did an indecent act with intent to insult or offend	PJS
13	1/1/1984-30/6/1985	Wilfully did an indecent act with intent to insult or offend	JB
14	1/1/1984-30/6/1985	Unlawfully and indecently dealt with a child under 16/under 14	JB
15	1/1/1984-30/6/1985	Wilfully did an indecent act with intent to insult or offend	JB
16	1/1/1984-30/6/1985	Unlawfully and indecently dealt with a child under 16/under 14	JB
17	1/1/1984-30/6/1985	Unlawfully and indecently dealt with a child under 16/under 14	JB
18	1/1/1984-30/6/1985	Unlawfully and indecently dealt with a child under 16/under 14	JB
19	1/1/1984-30/6/1985	Unlawfully and indecently dealt with a child under 16/under 14	JB
20	1/1/1984-30/6/1985	Wilfully did an indecent act with intent to insult or offend	JB
21	1/1/1984-30/6/1985	Sodomy of a person under 18	JB
22	1/9/1984-30/6/1985	Wilfully did an indecent act with intent to insult or offend	MPD
23	1/1/1984-30/6/1985	Wilfully did an indecent act with intent to insult or offend	RMH
24	1/11/1984-18/1/1985	Wilfully did an indecent act with intent to insult or offend	DPM
25	1/11/1984-18/1/1985	Unlawfully and indecently dealt with a child under 16/under 14	DPM
26	1/11/1984-18/1/1985	Unlawfully and indecently dealt with a child under 16/under 14	DPM
27	1/11/1984-18/1/1985	Wilfully did an indecent act with intent to insult or offend	DPM
28	1/11/1984-18/1/1985	Unlawfully and indecently dealt with a child under 16/under 14	DPM
29	1/11/1984-18/1/1985	Sodomy of a person under 18 years	DPM
30	1/11/1984-18/1/1985	Wilfully did an indecent act with intent to insult or offend	DPM
31	1/11/1984-18/1/1985	Unlawfully and indecently dealt with a child under 16/under 14	DPM
32	1/11/1984-18/1/1985	Unlawfully and indecently dealt with a child under 16/under 14	CJE
33	1/11/1984-19/1/1985	Wilfully did an indecent act with intent to insult or offend	CJE
34	1/1/1985-19/1/1985	Wilfully did an indecent act with intent to insult or offend	CJE
35	1/1/1985-19/1/1985	Unlawfully and indecently dealt with a child under 16/under 14	CJE
36	1/11/1984-18/1/1985	Sodomy of a person under 18 years	CJE