R v O'Keefe

Case [1999] QCA 50
IN THE COURT OF APPEAL [1999] QCA 050
SUPREME COURT OF QUEENSLAND

C.A. No. 332 of 1998

Brisbane

[R v O'Keefe]

THE QUEEN

v.

GORDON DANIEL O'KEEFE

Appellant

Pincus JA Davies JA Thomas JA

Judgment delivered 5 March 1999.

Separate reasons for judgment of each member of the Court, each concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS: 

EVIDENCE - similar facts - questions to be addressed by trial judge for admission of propensity evidence - Pfennig v R (1995) 182 CLR 461 and subsequent decisions in state courts discussed.

Counsel:  Mr P Callaghan for the appellant.
Mr M J Byrne QC for the respondent.
Solicitors:  Legal Aid Queensland for the appellant.
Director of Public Prosecutions (Queensland) for the
respondent.
Hearing Date:  8 February 1999.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 5 March 1999

  1. I have read the reasons of Thomas J.A. and am in substantial agreement with them. In particular I agree with the suggestions made by Thomas J.A. as to the way in which problems posed by certain passages in Pfennig (1995) 182 C.L.R. 461, should be resolved. That is, I agree that when a question of admission of propensity evidence arises, the trial judge should consider whether the evidence 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" and whether if the evidence were admitted the "evidence as a whole" - i.e. the whole of the evidence in the case including the propensity evidence - would be "reasonably capable of excluding all innocent hypotheses" (emphasis added). As to the second proposition, I further agree that it is to be applied, when considering admissibility, on the assumption that the propensity evidence proffered is accurate and truthful.

  2. A reason for rejecting the view that what was said in Pfennig was intended to lay down a rule that because propensity evidence is circumstantial evidence it cannot be admitted unless "there is no reasonable view of the evidence consistent with the innocence of the accused" (Pfennig at 485), is that any such rule would have a dubious pedigree. Its inspiration appears to be a statement in Hoch (1988) 165 C.L.R. 292 at 296, as to the effect of what Dawson J. said in Sutton (1984) 152 C.L.R. 528 at 564. There Dawson J. said that "a trial judge may find assistance" in arriving at the correct test of admissibility of similar fact evidence "by applying the same standard as a jury must ultimately apply in dealing with circumstantial evidence"; if read literally that appears, with respect, to be novel. Dawson J. relied on Martin v. Osborne (1936) 55 C.L.R. 367, the most relevant set of reasons in which is that of Dixon J. who discussed the admissibility of certain similar fact evidence from pp. 375 to 377. Although Dixon J. used various expressions, his Honour's predominant view appears to have been that:

    ". . . the acts…

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AGLC
R v O'Keefe [1999] QCA 50
Case
[1999] QCA 50
Decision Date

CaseChat Overview and Summary

The case of R v O'Keefe involved an appeal against the conviction of the appellant for arson and related offences. The central issue in the appeal was whether the trial judge erred in admitting evidence of a prior arson incident from 1975, which was considered similar to the current charges. Additionally, it was argued that the trial judge's directions on the use of the 1975 evidence were inadequate, and that certain remarks by the Crown Prosecutor were inflammatory and should have been addressed. The court was tasked with determining whether the trial judge correctly applied the legal principles governing the admission of propensity evidence, as outlined in Pfennig v R and subsequent cases.

The court examined whether the 1975 evidence was sufficiently similar to the current charges to be admissible under the legal principles established in Pfennig v R. The trial judge had found the evidence compelling due to its similarity in motive, method, and detail. The appellant's counsel argued that the 1975 evidence was not of sufficient cogency to warrant its admission, particularly considering the 22-year gap between the incidents. However, the court noted that the argument regarding the temporal remoteness of the prior incident was not strongly pursued. Instead, the focus was on whether the 1975 evidence could reasonably support an inference that the appellant was guilty of the current charges, without a reasonable view being consistent with the appellant's innocence. The court held that the trial judge correctly assessed the probative value of the 1975 evidence against its prejudicial effect and concluded that there was no reasonable view of the evidence consistent with the appellant's innocence.

The reasoning of the court was grounded in the legal framework established by the High Court in Pfennig v R, which emphasized the need to balance the probative force of propensity evidence against its prejudicial effect. The court found that the trial judge had properly considered whether there was a reasonable view of the evidence consistent with the appellant's innocence and concluded that the probative value of the 1975 evidence outweighed its prejudicial effect. The court also dismissed the argument regarding the remarks by the Crown Prosecutor, holding that such remarks were within the bounds of legitimate advocacy and did not warrant specific intervention by the trial judge.

In conclusion, the appeal was dismissed. The court found that the trial judge had correctly admitted the 1975 evidence and provided appropriate directions to the jury regarding its use. The evidence, along with other strong Crown evidence, supported the conviction of the appellant on the arson and related charges.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The main ground argued was that the learned trial judge erred in admitting the 1975 evidence. It was also submitted that his Honour's directions on the use that could be made of such evidence were defective, and that his Honour ought to have given a direction to cure certain remarks of the learned Crown Prosecutor which were unhappily described as "inflammatory". Admission of the 1975 evidence The learned trial judge concluded that the 1975 evidence was strikingly similar to that with which the appellant was charged, referring to the similarity of motive and method and the accompanying detail of a second fire in an unoccupied building close by. His Honour considered that the 1975 evidence had "compelling probative effect when measured in the light of the evidence that is to be led in the prosecution case involving these offences". I do not understand counsel for the appellant to have seriously submitted that the 1975 evidence failed to reveal sufficient striking similarity. The submission was that there is another dimension to the Pfennig test[1] which was overlooked by his Honour, namely that the 1975 evidence was not of sufficient cogency to warrant its admission. It was initially submitted that the period of 22 years that separated the two events made the former occasion too remote, and that nothing which happened more than 10 years previously could ever have a sufficient connection to be properly receivable as propensity evidence. This submission was in the end not seriously pressed, counsel for the appellant very properly drawing attention to the case of Perry[2] in which evidence of a poisoning in 1961 was admitted on a charge of attempted murder by poisoning in 1978. Moreover, as a matter of human experience it would seem that peculiar traits, methods, quirks and personalities may endure a lifetime. The existence of such an approach as was initially suggested would be an unwarranted boon for serial offenders. [1] Pfennig v R (1995) 182 CLR 461. [2] Perry v R (1982) 150 CLR 580. The submission proceeded to rely upon what was described as the second aspect of the Pfennig test. His Honour is said to have erred in failing to determine whether there was, viewed in the context of the prosecution case, a reasonable view of the evidence which was consistent with the appellant's innocence. It was submitted that the 2 February 1998 evidence demanded that such a view be taken as it made it reasonably possible that the acts for which the appellant was convicted were carried out by an unknown third party. The Pfennig test In Pfennig the High Court provided a detailed summary of the development of the law concerning propensity evidence, including the sub-category of similar facts evidence, and it is not necessary here to repeat the excursus. However it is necessary to repeat certain passages from Pfennig relevant to the argument upon which the appellant relies. Phrases to which special reference will be made are italicised. (a) Having referred to Hoch v R[3] their Honours continued: "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[4]." (b) "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. Here "rational" must be taken to mean "reasonable" 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.[5]" (c) "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 suggested in Boardman[6], 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[7]." (d) With reference to the task of the trial judge in balancing the probative value of such evidence against its prejudicial effect the court continued: "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[8]." [3] (1988) 165 CLR 292, 294. [4] Pfennig v R (1995) 182 CLR 461 at 481-482. [5] Ibid pp482-483. [6] Boardman v DPP [1975] AC 421 at p457. [7] Pfennig v R (above) pp483-484. [8] Ibid p485.

Decision

Reasons for decision

Finally objection was taken to some remarks made by the Crown Prosecutor in address suggesting to the jury that "from their general knowledge they would know that people who light fires very often like to hang around to see their handiwork". This was said in the context of discussing the question whether the appellant was a mere coincidental spectator. I do not consider that the Crown Prosecutor's remarks went beyond the limits of legitimate advocacy. Counsel are entitled to some degree of generalisation about the conduct of human beings, and defence counsel would be equally entitled to suggest that a guilty party would not hang around to be seen. It would be for the jury to say which generalisation, if any, they preferred. In the circumstances his Honour was not obliged to advert to the question or to go further than telling the jury that they could give such weight to the submissions in respect of counsel as they thought they deserved. Conclusion Overall this was a strong Crown case made stronger by rather striking similar fact evidence. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

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