R v Pfennig

Case [2018] SASCFC 27

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PFENNIG

[2018] SASCFC 27

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)

1 May 2018

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Appeal against conviction.

The appellant was convicted after a trial by judge alone for the murder of Louise Bell in 1983. A significant aspect of the evidence was results obtained from DNA analysis of Louise Bell’s pyjama top which matched the appellant’s DNA profile.

The appellant appeals against the conviction on the ground that the verdict is unsafe and unsatisfactory and cannot be supported having regard to the evidence. The appellant submits the prosecution did not exclude as a reasonable possibility the innocent transfer of his DNA to Louise Bell’s pyjama top, by way of multiple steps (“tertiary transfer”). The respondent submits there was a large body of evidence upon which the trial judge could rely to have been satisfied beyond reasonable doubt that the only explanation for the presence of the appellant’s DNA on Louise Bell’s pyjama top was that he abducted and murdered her.

Held (per Stanley J, Kourakis CJ and Peek J concurring): Appeal Dismissed.

1. The basis of the appellant’s hypothesis that his DNA was transferred to Louise Bell’s pyjama top by way of tertiary transfer is so unlikely given the state of scientific knowledge that the trial judge was correct to reject the hypothesis as fanciful [61].

2. Fitzgerald v The Queen (2014) 88 ALJR 779 does not stand as authority for the proposition that where the evidence leaves open the possibility of secondary or tertiary transfer of DNA, the DNA evidence is of no probative weight [70].

3. It was open for the trial judge to be satisfied of the appellant’s guilt beyond reasonable doubt, having regard to all of the evidence including the circumstantial evidence which, coupled with the DNA evidence, established a cogent basis for the judge’s verdict [71].

Criminal Law Consolidation Act 1935 (SA) s 353(1), referred to.
Shepherd v The Queen (1990) 170 CLR 573; M v R (1994) 181 CR 487; R v Hore [2010] SASCFC 60; DPP v Paulino [2017] VSCA 38; R v Doheny and Adams [1997] 1 Crim App R 369; R v Karger (2002) 83 SASR 135; Libke v The Queen (2007) 230 CLR 559, applied.
Fitzgerald v The Queen (2014) 88 ALJR 779, distinguished.

R v PFENNIG
[2018] SASCFC 27

Court of Criminal Appeal:  Kourakis CJ, Peek and Stanley JJ

  1. KOURAKIS CJ:   I dismiss the appeal for the reasons given by Stanley J.

  2. PEEK J.   I would dismiss the appeal.  I agree with the reasons of Stanley J.

    STANLEY J:

    Introduction

  3. This is an appeal against conviction. 

  4. The appellant appeals against his conviction for the murder of Louise Bell…

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AGLC
R v Pfennig [2018] SASCFC 27
Case
[2018] SASCFC 27
Decision Date

CaseChat Overview and Summary

The appellant, R v Pfennig, appealed against his conviction for the murder of Louise Bell in 1983. The trial was conducted by judge alone, and the central issue was whether the evidence proved the appellant was the offender, as the abduction and murder of Louise Bell were not in dispute. The prosecution's case relied significantly on DNA analysis of samples taken from Louise's pyjama top, which showed a statistical match to the appellant's DNA profile. This pyjama top had been found submerged in a river and rinsed with tap water prior to its discovery.

The legal issues before the court were whether the verdict of guilty was unsafe and unsatisfactory, and therefore could not be supported by the evidence. Specifically, the appellant argued that while the DNA match itself was not disputed, the prosecution had failed to adduce evidence capable of excluding the reasonable possibility of innocent transfer of his DNA onto the pyjama top. This, the appellant contended, meant the DNA evidence, which was a crucial link in the circumstantial case, did not sufficiently implicate him in the murder.

The court considered the DNA evidence in conjunction with the entire body of circumstantial evidence. It applied the principle that an appellate court must determine whether it was open to the fact-finder to be satisfied of guilt beyond reasonable doubt, meaning whether the fact-finder *must*, as distinct from *might*, have entertained a doubt about the appellant's guilt. The court rejected the submission that the prosecution needed to disprove every innocent explanation for the DNA's presence in isolation. Instead, it held that the DNA evidence's significance was to be assessed in light of all other known facts, including the appellant's proximity to the victim and other circumstantial indicators.

Ultimately, the court found that, having regard to all the evidence, it was not persuaded that the trial judge *must* have entertained a doubt about the appellant's guilt. The appellant had not demonstrated that the evidence was sufficient to preclude satisfaction of guilt beyond a reasonable doubt. Consequently, the court was not persuaded that the verdict was unreasonable or unsupported by the evidence, and it dismissed the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant appeals against his conviction for the murder of Louise Bell in 1983. The appellant was tried by judge alone. At trial, there was no dispute that Louise was abducted and murdered. The sole issue at trial was whether the evidence established that the appellant was the offender. Background On 4 January 1983 Louise Bell was 10 years old. She resided with her parents and sister at Hackham West. On the night of 4 January 1983 Louise went to bed in a bedroom she shared with her younger sister Rachel. The bedroom abutted the street and there was a window to the street. At about 10:30 p.m. the girls’ father bid her goodnight. At about 6 a.m. the following day Louise’s mother discovered she was missing from her bed. The evidence strongly suggested she had been removed through the bedroom window. A flyscreen on the window had already suffered some damage, but examination revealed further damage to the screen observable the next morning. Despite an extensive police investigation and search Louise’s body has never been found. The prosecution case at trial was a complex circumstantial case. A significant aspect of the evidence was results obtained from DNA analysis of samples obtained from a pyjama top which it was established was worn by Louise when she went to bed on the night of her abduction and which she had received as a Christmas present less than two weeks earlier. Evidence established the presence of material bearing a DNA profile which statistically matched the appellant’s DNA profile on two samples taken from the pyjama top for analysis.[1] In addition the evidence established that subsequent to Louise’s abduction the pyjama top had been submerged in the Onkaparinga River and later rinsed thoroughly in tap water. [1] Strictly speaking the evidence of DNA analysis was that it was an overwhelming statistical likelihood to have obtained the DNA profile extracted from the deposits on the pyjama top if the appellant was a contributor to that profile, rather than an unknown unrelated individual. The pyjama top was found on 28 February 1983 in the front garden of a house in Hackham West occupied by KD. KD’s residence was around the corner from the Bell residence. KD did not know the appellant. It was not in dispute that in January 1983 the appellant lived in Hackham West, was acquainted with Louise and knew where she lived, as Louise and his daughter, Petra, went to school together and were in the same basketball team. The issue on appeal The sole ground of appeal is that the verdict is unsafe and unsatisfactory and cannot be supported by the evidence. The appellant submits that the DNA evidence was an indispensable link in the chain of reasoning to the guilty verdict.[2] The prosecution had to prove two matters beyond reasonable doubt. First, that it was the appellant’s DNA on the pyjama top. Second, that his DNA was deposited on the pyjama top in circumstances which implicate the appellant in the commission of the offence of murder. On appeal there is no issue as to the first matter. The appellant submits that, in respect of the second matter, there was no evidence adduced by the prosecution capable of excluding as a reasonable possibility the innocent transfer of the appellant’s DNA to Louise’s pyjama top.[3] Accordingly, the appellant submits he should have been acquitted of the charge of murder.[2] Shepherd v The Queen [1990] HCA 56, (1990) 170 CLR 573.[3] Fitzgerald v The Queen [2014] HCA 28, (2014) 88 ALJR 779.

Evidence

Evidence Before The Court

In order to appreciate the significance of the DNA evidence to the prosecution case, it is convenient to set out the non-DNA evidence adduced by the prosecution. Non-DNA evidence In January 1983, the appellant and his family had been living for some years in Hackham West. Their residence was a short walking distance from the Bell residence. The appellant had a daughter, Petra Pfennig, who attended the Hackham West Primary School with Louise Bell. In 1982, they were in Year 5. However, they were not in the same class. They were in the same school basketball team. They had weekly practices and weekly matches between February and November 1982. They both attended a barbecue pool party at the coach’s house in late November or early December 1982 to celebrate the end of the basketball season. They both went on a school trip to Mount Gambier towards the end of 1982. Neither had a sleepover at the other’s house. While they were friendly they were not close friends. During 1982, the appellant, his daughter and Louise Bell had been observed on at least six occasions walking together from school towards their homes. On Christmas Day 1982, the Pfennig family left Adelaide for a holiday in Victoria. The appellant returned home from the holiday on 3 January 1983, but his wife and their two daughters remained on holiday for another two weeks travelling from Swan Hill to Broken Hill. On 6 January 1983, police declared Louise’s disappearance to be a major crime. They commenced door-knocking enquiries in the neighbourhood. They have no record of any response to the door-knock from anyone at the Pfennig residence. They have no record of any statement ever being given or any information received from the appellant about Louise’s disappearance. In December 1982 and January 1983, RP lived next door to the Pfennig family. He watered the Pfennig’s lawn, at the appellant’s request, over the Christmas/New Year period in 1982/1983 while the family was away on holiday. When police came to knock on the door of the Pfennig house, RP was in his front yard. He told them the family was away on holiday. One or two days later, he was watering the lawn when he saw the curtains move in the house. After RP knocked a few times on the door, the appellant answered. The appellant’s appearance was dishevelled. This was unusual. They discussed Louise’s disappearance. RP told the appellant that, when police had come knocking, he said to them that the appellant was in Broken Hill with his family. The appellant replied that he had been “sprung” and had lost an alibi. RP treated this remark as a joke. On 17 January 1983 KD was telephoned by an unidentified man who disclosed esoteric knowledge about the scene of the crime. The man spoke with a slight European accent. He instructed that, in order to prove that he had Louise Bell, KD should tell the police to turn over a broken brick at the corner of South Road and Beach Road, Hackham West, where they would find Louise’s earrings. This information was conveyed to the police who, upon investigation, found Louise’s earrings at that location under a broken brick. Louise had been wearing those earrings at the time of her abduction.

Decision

Reasons for decision

PEEK J (dissent)
Having regard to all this evidence, I do not consider that the trial judge must, as distinct from might, have entertained a doubt about the appellant’s guilt. As the High Court said in Libke v The Queen,[49] it is not sufficient to show that there is material which might have been taken to be sufficient to preclude satisfaction of guilt to the requisite standard. The appellant had to show that there is evidence which must be sufficient to preclude satisfaction of his guilt beyond a reasonable doubt. He has not done so. I am not persuaded that the verdict is unreasonable. Nor am I persuaded that the verdict cannot be supported having regard to the evidence. [49] [2007] HCA 30 at [113], (2007) 230 CLR 559 at 597. Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

Those principles are unaffected by the fact that the appellant was tried by judge alone, as explained by Gray J, with whom White J agreed, in R v Hore.[22]Gray J said:[23]It is appropriate to outline immediately the role of an appellate court when faced with an argument that a verdict is unsafe and unsatisfactory. The High Court in Libke reiterated the test that had been espoused in M in the following terms:…But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there is material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. …[Footnote omitted]Both counsel accepted that this was the test to be applied by this Court in the resolution of this appeal. It is to be further observed that in order to establish that a verdict is unreasonable or that it cannot be supported by the evidence, it is not enough for an appellant to show that the evidence is open to criticism. The general principles referred to above are not affected by the fact that the defendant in this case was tried by Judge alone.[Footnotes omitted].[22] [2010] SASCFC 60.[23] [2010] SASCFC 60 at [4].Consideration The DNA evidence fell to be assessed in light of the entire body of circumstantial evidence in the case.[24] In R v Doheny and Adams,[25] Phillips LJ observed:[26]The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. [24] DPP v Paulino [2017] VSCA 38 at [23].[25] [1997] 1 Crim App R 369.[26] [1997] 1 Crim App R 369 at 373. This reasoning was approved by the Court of Criminal Appeal of this State in R v Karger[27] in the reasons of Gray J, with whom Doyle CJ and Prior J agreed.[27] [2002] SASC 294 at [186], (2002) 83 SASR 135 at 180. The DNA evidence had to be considered in combination with the circumstantial evidence in determining whether there was an innocent explanation for the presence of the appellant’s DNA on the pyjama top. While the accuracy and reliability of the scientific testing and statistical weighting of DNA deposited on an exhibit had to have been established beyond reasonable doubt before the evidence could be used as a piece of circumstantial evidence in the process of reasoning towards guilt, it is quite a separate issue as to whether the prosecution needed to disprove some innocent explanation for the presence of the appellant’s DNA on the pyjama top by evaluating the DNA evidence in isolation, as the appellant submits. I do not accept this submission.