R v Pfennig
[2016] SASC 170
•11 November 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v PFENNIG
Criminal Trial by Judge Alone
[2016] SASC 170
Ruling of The Honourable Auxiliary Justice David
11 November 2016
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF PRIOR CONVICTION
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - PROOF OF IDENTITY OF ACCUSED - GENERALLY
The accused is charged with the murder of a young girl which took place in 1983 – the prosecution seeks to adduce evidence of discreditable conduct being led pursuant to s 34P of the Evidence Act 1929 – the defence objects – the evidence of discreditable conduct is the previous convictions of the accused, being the murder of a young boy in January 1989, and the abduction and sexual assault of a young boy in December 1989 – discussion and application of the common law and s 34P regarding admissibility of evidence.
Held:
1. For this evidence to be admitted there must be more than a “mere propensity to commit a crime” – the evidence must have a “strong probative value”.
2. The features common to all three cases cannot be elevated to pass the test required by 34P of the Evidence Act 1929.
3. The evidence is disallowed.
Evidence Act 1929 (SA) s 34P, s 34S, s 34KA, referred to.
R v MJJ; R v CJN (2013) 117 SASR 81, applied.
Makin v Attorney-General for New South Wales [1894] AC 57; Pfennig v The Queen (1995) 182 CLR 461; R v Pfennig (No 2) (1992) 57 SASR 518, considered.
R v PFENNIG
[2016] SASC 170Criminal Trial by Judge Alone: Voir Dire
DAVID AJ.
Introduction
The accused is charged with having murdered Louise Bell. I set out the Information in full:
Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Dieter Pfennig between the 4th day of January 1983 and the 1st day of March 1983 at Hackham West or another place, murdered Louise Bell.
The accused has pleaded not guilty to the charge.
The prosecution have indicated that they intend to try and lead evidence of discreditable conduct. In short, the conduct sought to be led are two convictions and the appending evidence of acts which were committed subsequent to the present allegation.
The accused pleaded guilty to, and was convicted of, the abduction and sexual assault of a 13 year old boy, whom I shall refer to as “J”, in 1990 (the J case). That offence took place in December 1989. He was also convicted after a trial of the murder of a 10 year old boy, Michael Black, which offence took place in January 1989 (the Black case). The accused was convicted in relation to the Black case in May 1992.
The prosecution argues that evidence which was the basis of those two convictions should be led pursuant to s 34P of the Evidence Act 1929 (SA) (the Evidence Act) because such evidence has strong probative value as an aspect of circumstantial evidence going to the identity of the accused as the murderer in the present case.
The defence objects to such evidence being led.
I heard full argument from both counsel and have been provided with witness statements in relation to all three cases, including aspects of evidence in relation to the J and Black cases. I have also been taken, as part of the voir dire, on a view of the pertinent area of all three cases to better understand the context of the arguments presented.
At the time of the publication of these reasons I have already ruled as to the admissibility of the evidence sought to be led, but indicated at the time I would not publish any reasons until the trial was completed. I now do so.
The offending
It is necessary to give a basic summary of the evidence intended to be led in the Louise Bell case (the Bell case) and the evidence which was led in the Black case. The J case differed in the sense that the accused pleaded guilty and the only evidence presented related to a dispute of facts about a fairly limited topic. I give an overview of each case in turn.
The Bell case
The prosecution case will be that during the evening of 4 January or in the early hours of the morning of 5 January 1983 Louise Bell was abducted from her bedroom at 5 Meadow Way, Hackham West. She was 10 years of age at the time and lived at that house with her parents, Colin and Dianne Bell, and her younger sister, Rachel Bell. She and Rachel shared a bedroom.
Louise was last seen by her parents in bed on the evening of 4 January 1983. She was discovered missing at 6.30am the following morning and her body has never been found.
On inspection, damage to the window flyscreen was noted. This damage was of sufficient size to accommodate a child exiting, or an adult entering through the window indicating abduction. Whilst on the view, I noticed that the children’s room was very small and was separated by an adjoining wall from the parents’ bedroom which, although bigger, was also small.
At that date, the accused lived at 31 Holly Rise, Hackham West, with his wife, Sandra, and two daughters, Petra and Erika. His house was a short distance from the house of Louise Bell. It amounted to a walk of about 10 minutes. Petra Pfennig knew Louise Bell, being in the same class at school and having participated in a number of common activities with her.
Evidence will be led that the accused and his family, between 25 December 1982 and 3 January 1983, participated in a canoeing marathon which went from Yarrawonga to Swan Hill. After 3 January 1983, Sandra and the two children travelled to Broken Hill to visit Sandra’s parents and the accused was driven back to his home at Hackham West by another member of the travelling party.
Evidence will be called from RP, a neighbour who had been asked by the accused to water his lawn while he was away on the canoeing trip. On 10 January 1983, during a doorknock by police RP informed them that the accused and his family were on holidays. Subsequent to that, RP continued to water the accused’s lawn in the belief that he was still away. However, prior to the date on which he expected the accused to return, RP noticed movement in the accused’s house. He knocked on the door and it was eventually answered by the accused, who appeared dishevelled. RP mentioned that the police had been doorknocking in the area in relation to the disappearance of Louise Bell and he will give evidence that the accused said words to the effect of “there goes my alibi”.
The prosecution will lead evidence that on 17 January 1983 KD, who lived in the Hackham West area, received a telephone call from an unknown male person with a slight European accent. That person told her, among other things, that he had Louise Bell and as proof of that fact if she went to the corner of South Road and Beach Road, she would find Louise Bell’s earrings under a rock. After being contacted by KD, the police attended at the corner of South Road and Beach Road that evening where the earrings were located and confirmed to be those of Louise Bell which she was wearing when she was abducted. I went to the scene of this location whilst on the view.
On the morning of 28 February 1983, KD observed a girl’s pyjama top on her front lawn. It was the same pyjama top that Louise Bell was wearing the night she was abducted (“the pyjama top”). Many forensic tests were performed on the pyjama top and, on the prosecution case, indicated the presence of material which originated in the upper reaches of the Onkaparinga River in the vicinity of an establishment then known as the Horseshoe Inn at Old Noarlunga.
In 2011/2012, sophisticated DNA testing was performed on the pyjama top and the prosecution intend to lead evidence comparing a DNA profile from the pyjama top with the DNA profile of the accused. For the present purposes, it is sufficient to say that some of the material extracted from the pyjama top provided a DNA profile which compared with the detailed DNA profile of the accused. On the prosecution case, the probability of a randomly selected male other than the accused matching the DNA profile from the pyjama top is more than one in a billion. It is clear that this evidence will be a cornerstone of the prosecution case.
The prosecution will also call evidence of conversations the accused had with various people after Louise Bell’s abduction in which they argue he showed an abnormal interest in the topic and on one occasion said he was a person of interest, when at that stage he was not. In particular, he talked about the topic of the Louise Bell abduction on a number of occasions with his canoeing friends. The prosecution concedes, and it is to be noted of course, that after the abduction of Louise Bell there was a great deal of publicity and discussion in the community in relation to the matter.
Pursuant to s 34KA of the Evidence Act, I allowed a statement from a taxi driver, Richard Medlycott, who is now deceased. He says in that statement that he drove a person in his taxi from the city to Louise Bell’s house under instructions from that passenger. This was on 15 or 16 March 1983. In the statement, he said that the person got out of the taxi and walked towards the house before being taken back to the city. The man smoked cigarettes consistent with the brand and type which the accused smoked and had a slight European accent. The prosecution will call evidence that the accent is consistent with that of the accused.
Finally, the prosecution will call evidence of admissions made by the accused to two people who were fellow prisoners in the years 2005 and 2008 or 2009. Both said that he admitted to the murder of Louise Bell. In relation to one of the fellow prisoners, he said that Louise Bell and Michael Black were buried in the same place.
That is a brief overview, for the present purposes, of the prosecution case.
I turn to the other two cases.
The Black case
On 14 May 1992, after a trial by jury, the accused was found guilty of murdering Michael Black, who disappeared on 18 January 1989. At the time of his disappearance Michael Black was 10 years of age. His body has never been located. It is to be noted that the evidence from the J case was led by the prosecution in the Black case.
Michael Black lived with his parents at Murray Bridge. He left home at about 1.00pm on 18 January 1989 to go fishing at Sturt Reserve, which is on the Murray. He had been given permission by his father to do so, but was forbidden from going across the river to the eastern side where Thiele Reserve is located.
He left home on his bicycle with his fishing rod and haversack and his red heeler dog. He was seen at Sturt Reserve by a number of witnesses on a number of occasions sometime after 1.00pm and on one particular occasion, at about 2.25pm, he was seen talking to the accused. Nobody saw him after about 3.00pm.
The accused admitted at trial that he was in fact at Sturt Reserve that day with his kombi van. He also admitted in evidence speaking to Michael Black.
Sometime later in the day, Michael Black’s bicycle was seen on the other side of the river at Thiele Reserve, as was his haversack, fishing rod and other items. His dog was also observed in that area. Nobody had ever seen Michael Black at Thiele Reserve on that day, but there were witnesses who saw the accused there. Like the Louise Bell case, the Michael Black disappearance attracted a great amount of publicity.
Throughout 1989, the accused made comments to his wife and daughter, Petra, about Michael Black and said he had in fact seen him fishing at Murray Bridge. He said the same thing to a number of his friends.
About a week after Michael Black’s disappearance, the accused visited the scene at Sturt Reserve with his wife and two daughters. On that occasion he indicated to them where he had seen Michael Black, pointing out Thiele Reserve.
At his trial the accused gave evidence in his defence. He admitted that on the day of Michael Black’s disappearance he had approached him when he was fishing and lent him his fishing knife. He then returned to his kombi van where he sat just outside the vehicle. After about 10 minutes, Michael Black came to the kombi van to return the knife. Both of them sat on the outside of the kombi van watching a television set which was inside the van because the cricket was on. The accused gave evidence that he then left without Michael Black. He denied abducting and murdering him. He was convicted and obviously disbelieved by the jury.
I turn to the J case.
The J case
J was 13 years of age when he was abducted by the accused. At about 1.30pm on Saturday 30 December 1989, on a friend’s bicycle, he rode a short distance from his house at 83 Kalgoorlie Avenue, Port Noarlunga, towards a delicatessen at the corner of Kalgoorlie and Cliff Avenues, Port Noarlunga. Whilst on that journey, he noticed the accused and his kombi van. It was the same kombi van that the accused had in the Black case. The accused called out to him as he rode past. J got off his bike and the accused said to him that he had dropped his keys in the van and asked him to help him find them. As J stepped into the van to do so, the accused shut him in, threatened him, gagged and blindfolded him, and tied him up. He also placed his bicycle in the van which had sufficient room to accommodate it. He then drove to a car park at a place called Trigg Point, Port Noarlunga, which overlooks an adjacent beach. The accused wiped over J’s bike, presumably to eradicate fingerprints and placed it against a bush near the Esplanade. He then drove J to another location where he sexually assaulted him. The accused admitted on the disputed facts hearing that this location was a parking area on the edge of the Onkaparinga River, near the site of the Horseshoe Inn at Old Noarlunga. It was very near the area where the samples found on the pyjama top of Louise Bell originated from.
The accused then drove J to his house at 31 Holly Rise, Hackham West, where he further sexually assaulted him before putting him to bed after blindfolding him and giving him four tablets to put him to sleep.
The following morning, the accused gagged and bound J to a chair. The accused admitted at the disputed facts hearing that he then went for a drive past the shop from where he had abducted J before going to his parents’ house at Christies Beach.
Whilst the accused was on this journey, J managed to untie himself and climb through the kitchen window and jump into the yard of the house next door. The next door neighbour phoned both the police and J’s father. When the accused returned to his home, the police were waiting and he was arrested.
It is to be noted that during this time the accused had separated from his wife and the house was vacant for the use to which he put it.
The accused pleaded guilty in the Supreme Court to charges of false imprisonment, rape, indecent assault, and abduction of a child under the age of 16 years. The sentencing process involved a disputed facts hearing at which the accused gave evidence concerning the rather limited question of whether his actions were premeditated or spontaneous.
Ms McDonald SC, counsel for the Director of Public Prosecutions, argues that the details of the Black and J cases should be led as evidence in the present trial. In short, she submits that there is such a similarity and underlying unity between all three cases that evidence of the Black and J cases indicates a particular propensity of the accused as circumstantial evidence of a fact in issue, namely his identity as the abductor and murderer of Louise Bell. Before considering her submissions in more detail, it is important that I set out the relevant principles by which I am guided.
The principles
The admissibility of discreditable conduct is now regulated by Part 3 Division 3 of the Evidence Act, in particular s 34P and s 34S. I set out those two sections in full:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
34S—Certain matters excluded from consideration of admissibility
Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following:
(a)there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant;
(b)the evidence may be the result of collusion or concoction.
The common law approach to the admissibility of evidence disclosing previous bad character of an accused, starting with Makin v Attorney-General for New South Wales[1] and proceeding through many authorities including the accused’s trial in the Black case,[2] has been altered very little by the above legislation.
[1] [1894] AC 57.
[2] Pfennig v The Queen (1995) 182 CLR 461.
The correlation between the common law and the above legislation is succinctly and clearly set out in the judgment of Vanstone J in R v MJJ; R v CJN,[3] in which her Honour said:[4]
[3] (2013) 117 SASR 81.
[4] (2013) 117 SASR 81 at [241]-[250].
The structure of s 34P bears some resemblance to the well known statement of principle by Lord Herschell in Makin v Attorney-General for New South Wales [1894] AC 57 at 65. Lord Herschell commenced with a statement to the effect that evidence which is generally discreditable is inadmissible. He went on to say that such evidence might yet be admissible if relevant to an issue before the jury. Section 34P(1) and 2) follow the same formula. His Lordship said:
It is undoubtedly 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. On the other hand, the mere fact that the evidence is adduced tends to show 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.
Section 34P(2) divides discreditable evidence into two categories. Section 34P(2)(a) deals with non propensity uses. Examples of these uses are seen in cases such as R v Wilson (1971) 123 CLR 334 (evidence of marital discord prior to wife’s death by firearm); R v Tucker (1984) 36 SASR 135 (proof of theft of firearm later used to shoot victim as evidence of premeditation); R v Nieterink (1999) 76 SASR 56 (proof of uncharged acts of sexual nature not used to prove sexual interest). This last has often been referred to as relationship evidence. It introduces what I see as a requirement more demanding than the common law, namely that the probative value of the evidence “substantially outweighs any prejudicial effect”. Formerly, such evidence was admissible, but fell to be excluded as a matter of discretion if its prejudicial effect was adjudged to outweigh its probative value.
Propensity or disposition evidence is dealt with in s 34P(2)(b). I would assess the qualitative requirement there provided as being comparable to the common law as it stood prior to Hoch v The Queen (1988) 165 CLR 292. The degree of probative force required at common law has been described as “a really material bearing on the issues to be decided”: Director of Public Prosecutions v Boardman [1975] AC 421 per Lord Morris of Borth-y-Gest at 439 and such that to exclude the evidence would be “an affront to common sense”: Boardman per Lord Cross of Chelsea at 456; and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen (1982) 150 CLR 580 per Brennan J at 609; Phillips v The Queen (2006) 225 CLR 303 per the Court at 320.
In my opinion the changes made by s 34P, s 34Q, s 34R and s 34S may be briefly stated as follows:
1.The test for admissibility established in Hoch that propensity evidence, if accepted, bear no reasonable explanation other than the inculpation of the accused person and the offence charged no longer applies – see s 34S(a);
2.The possibility of collusion or concoction by the witnesses attesting to the similar events is no longer a ground for exclusion – see s 34S(b);
3.The exclusionary rule which formerly regulated the admission of propensity or disposition evidence is now extended so that it applies to discreditable evidence introduced for non propensity purposes – see s 34P(2)(a).
For such evidence to be admissible the judge must now be satisfied that the probative value of such evidence “substantially outweighs any prejudicial effect it may have on the defendant”;
4.The criterion for admission of evidence tendered to demonstrate a particular propensity or disposition is now that the evidence has “strong probative value having regard to the particular issue or issues arising at trial” – see s 34P(2)(b).
Section 34Q is a codification of a common law rule.
Again, s 34R gives statutory effect to rules of long-standing. Section 34R(2) embodies the rule in Shepherd v R (1990) 170 CLR 573.
It is always for the party tendering evidence to demonstrate that it is relevant and admissible, and, if so, that it should not be excluded in the exercise of the general discretion. I do not see s 34P as casting a new onus on the tendering party or otherwise as altering that position.
The approach to be taken by a judge faced with an application to introduce evidence of discreditable conduct is, in my view, much as it was before s 34P was introduced. As before, the judge will need to understand for what purpose or purposes the evidence is tendered and, in particular, whether it is proposed to rely on propensity reasoning. It will be necessary for the judge to identify the permissible and impermissible uses of the evidence. It is be hoped that this task will be assisted by the requirement found in s 34P(4) that the party seeking to lead the evidence will give notice of it in accordance with the rules of court with some particularity and will outline the permissible uses.
Once the permissible use or uses of the evidence are identified and it is determined whether s 34P(2)(a) or (b) is invoked, then the probative value of the evidence must be assessed in accordance with the applicable criterion. If s 34P(2)(a) is applicable then the judge will need to consider whether the permissible use or uses can be kept sufficiently separate and distinct from the impermissible use, as required by s 34P(3).
Next there is the question of the general or residual discretion. I take the use of the expression “may be admitted” in the opening words of s 34P(2) to indicate that the legislature means to preserve in the judge the common law discretion to exclude otherwise admissible evidence. It is hard to see that this general discretion would have a real role in relation to non propensity evidence, which would already have been adjudged to substantially outweigh any prejudicial effect. However, it is not impossible to see that the discretion could come into play in relation to evidence which had been found to qualify under s 34P(2)(b). I am reminded that Brennan J expressed the view in Harriman v The Queen (1989) 167 CLR 590 at 594 that the continued existence of the general discretion to exclude admissible evidence of predisposition should be acknowledged. On the other hand Heydon J in BBH v The Queen (2012) 245 CLR 499 at [111] took the position that it was “highly questionable” whether there was any room for discretionary exclusion if the Pfennig test for admissibility had been satisfied.
(Citations in original)
In the present matter I adopt and apply those principles.
Argument
Ms McDonald submits that the principal issue at which the discreditable conduct is aimed is identity. In other words, when the trier of fact looks at the evidence of all three cases, it shows that the accused has a propensity to commit a highly unusual crime, that is, the abduction, sexual assault and murder of children. Added to that, in the J and Black cases, there are such unusual and distinguishing features that were also present in the Bell case, that it would be inherently improbable that the murderer of Louise Bell was someone other than the accused. That is the main thrust of Ms McDonald’s argument.
She correctly submits that when looking at the distinguishing features common to all cases, I must look at the combined effect of all of those features. In doing that, she argues that a combination of those features creates strong probative circumstantial evidence going to the question of the identity of Louise Bell’s murderer.
I indicate at the outset that both the common law and s 34P clearly establish that for there to be admissibility under this head, there must be more than “mere propensity to commit a crime”. Ms McDonald seeks to answer this challenge by pointing to the following features to raise the evidence sought to be tendered from “mere propensity” to one having “strong probative value”:
1The unusual nature of the crime: Ms McDonald argues that the abduction, rape and murder of children is an unusual crime. In support of that she provides a statistical chart setting out the rarity of such crimes. She goes so far as to argue that the very uniqueness of the three offences (Black, J and Bell), is enough to satisfy the statutory test for admissibility without anything further.
2The opportunity to commit these crimes: Ms McDonald submits that there is a common feature that all offences took place over the school holiday period and the accused was a teacher, presumably having the time to do so. Allied to that submission is that on each occasion he had the opportunity to hold each child captive for a period of time without the knowledge of his family. In the Bell case, the family was in Broken Hill and he had returned home early. In the Black case, he was at Murray Bridge alone, away from his home. In the J case, he was in fact separated from his wife and family and had the house to himself.
3The audacious nature of each offence: Ms McDonald argues that the common thread is just that. The J abduction was done not far from J’s home, the Black abduction was presumably done at Sturt Reserve where there were a number of people, and the Bell abduction was done from her home where she lived with her parents.
4The accused was in the proximity of the victims: That point is obvious in relation the J and Black cases, because he in fact took them in his van. In the Bell case, it is pointed out that he lived close by and used to take walks in the evening in the area near her house from where she was abducted.
5The common habit of returning to the scene of the crime: In the Bell case, there is the evidence in the statement of Richard Medlycott about that taxi driver taking him back to the area. In the Black case, there was evidence that he took his family to Sturt Reserve on a camping trip. In the J case, he returned to the scene of the abduction whilst J was tied up in the house. Ms McDonald argues that this is a further common thread.
6Ms McDonald points to the evidence of talking about each of the cases subsequently to various people. These conversations are referred to in the summary of events.
7After each of the abductions, the property of the victims was left in various places. It is clear that in the J and Black cases it was left to confuse the authorities. J’s bike was left on the Esplanade and Michael Black’s bike and property were left at Thiele Reserve. The clear inference is that this was done to obfuscate the enquiry and might give the impression that both were drowned. However, in the Bell case, the finding of the earrings and the pyjama top seem to more a case of the abductor playing “mind games” with the authorities.
8Ms McDonald argues that another common thread is that all offences were associated with water. Michael Black was obviously abducted near the Murray River, J was taken and sexually assaulted near the Onkaparinga River, and there is forensic evidence that Louise Bell’s pyjama top showed signs having been submerged in the Onkaparinga River.
9Ms McDonald points to the admissions made to Prisoner X about Louise Bell in that they included, as part of those admissions, reference to Michael Black.
The prosecution argues that a combination of these characteristics make it inherently improbable that the murderer of Louise Bell is someone other than the accused and that the evidence is of such “strong probative value” that it transcends the impermissible prejudice that its impact might have over and above its probative force.
Ms McDonald presents two other arguments about the admissibility of the J and Black cases. She submits that, besides going to the question of identity, that evidence is also probative because when the trier of fact is considering the DNA evidence that will be led, the evidence in the Black and J cases might be capable of rebutting an innocent explanation for the evidence of the presence of the accused’s DNA on Louise Bell’s pyjama top, if that is in fact proved. Although at this stage we are really in the area of conjecture in relation to that possibility, in my view, that is subsumed into the first argument, namely that the impugned evidence goes to the question of identity.
Ms McDonald presents a further argument that if there is a contest at trial between DNA experts, the evidence of the Black and J cases should be led and would be of probative value in resolving that conflict. I say at the outset that I cannot accept that argument. In my view, the authenticity of the DNA evidence which is sought to be led should surely stand alone.
Mr Algie SC, counsel for the accused, argues that the combination of all the features referred to in relation to the three cases falls far short of circumstantial evidence of “strong probative value” pointing to the accused as the murderer of Louise Bell. He argues that opportunity is not an unusual feature of this type of offence. He further submits that the proximity to the victims is misleading. He argues that in any abduction there is going to be a degree of proximity and further argues that the nature of the proximity in the Black and J cases is far different than that in the Bell case.
He put in argument that the aspect relating to the returning to the scene is unreliable because it relies upon, in the Bell case, the statement of Richard Medlycott which, although admissible, would lack strength because of the lack of a positive identification.
He also puts that the nature of post offence discussions about the Bell and Black cases were different. That aspect, of course, does not apply to the J case because the accused pleaded guilty. Mr Algie argues it must be borne in mind that discussion was not unusual in relation to the Bell and Black cases, there was a great deal of publicity about both cases and much general discussion.
He also puts that the use of children’s property to stage manage events after the abduction is entirely different. Two are to throw the authorities off the scent of their investigations and in the Bell case it is, as I have indicated, a matter of playing “mind games”.
Mr Algie also argues that the admissions to Prisoner X do not create a basis of underlying unity even though the Black case is mentioned.
He further argues that the discreditable conduct evidence can have no logical relevance bearing on the assessment of scientific methodology.
Analysis
It is instructive to remind myself of the basis upon which the J case was led in evidence in the Black case. In his reasons for admissibility, the trial Judge, Cox J, said:[5]
In my opinion, the evidence of the accused’s presence and behaviour in the area on 17 and 18 January including his dealings with Michael Black on the afternoon of 18 January, the opportunity his van gave him to carry out an abduction, the vehicle and dog noises heard coming from Thiele Reserve, and the very unusual nature of the particular crime in question, combine to render the evidence of the [J] abduction admissible in proof of the identity of Michael Black’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. As Brennan J said in Perry v The Queen (1982) 150 CLR 580 at 609, the connection required is a matter of degree. See also Director of Public Prosecutions v Boardman [1975] AC 421 at 457. We are not concerned here with a commonplace crime, such as housebreaking or rape, but with the abduction and detention, at least overnight, for sexual purposes of a young boy of pre-puberal or (just possibly, in the case of [J]) barely puberal age — quite an unusual crime in this community. Compare R v Straffen [1952] 2 QB 911, where the incidental features of the murders in effect changed them from “ordinary”, commonplace murders into quite extraordinary murders, so that not much more than proof of opportunity was needed to justify the admission of the propensity evidence on the issue of the murderer’s identity. I do not think there is a rational view of all of this evidence that is inconsistent with the guilt of the accused. It would, in my opinion, be an affront to common sense to postulate two persons in Michael Black’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.
[5] R v Pfennig (No 2) (1992) 57 SASR 518 at 523-524.
In the High Court in Pfennig v The Queen,[6] in the judgment of Mason CJ, Deane and Dawson JJ, their Honours said:[7]
Here, however, because the cause of Michael’s disappearance cannot be established by direct evidence, the Crown case lacks direct proof of the details which might otherwise constitute a detailed pattern of striking similarity or underlying unity. What we have is a case of circumstantial evidence, based on the Murray Bridge evidence, leading to an inference that Michael was abducted for sexual purposes and, in the circumstances, that meant that a van of the kind which the appellant drove was an ideal vehicle for the execution of such an enterprise. If that be accepted, as we think it should be accepted, then there is a similarity and unity between the two incidents of abduction for sexual purposes involving the use of a van. In addition, according to the undisputed evidence of each incident, the appellant was present on each occasion, initiating conversation with the victim in close proximity to his van. The fact that the Murray Bridge evidence as to abduction is circumstantial and inferential rather than direct means that the H. evidence lacks some of the cogency that it would have had if the Murray Bridge evidence on the point were direct.
Granted the circumstantial evidence in this case falls short of that level of precision, there are other factors present which indicate that the H. evidence has very considerable cogency. First, there is the Murray Bridge evidence as to the appellant’s presence with his van in Sturt Reserve and his contact with Michael; in other words, there is convincing evidence of opportunity. Then there is Mr. Toogood’s evidence of a van which could have been the appellant’s van travelling at an unsafe speed in the direction of Thiele Reserve at about 2.45 p.m. and the evidence of a commotion at Thiele Reserve. These two pieces of evidence suggest that the opportunity was availed of by someone with a vehicle which could have been the appellant’s vehicle, there being no evidence that another vehicle with similar characteristics was in the vicinity at that time. The evidence therefore points to the appellant taking advantage of the opportunity which presented itself.
Viewed against that background provided by the Murray Bridge evidence, the H. evidence, including the statement made by the appellant to his wife (which was not disputed) after he had been arrested in connexion with the H. incident, is cogent, circumstantial evidence pointing to the appellant’s guilt. The modus operandi disclosed by the H. evidence, namely, the inveigling of a child into the van, has its parallel with the two children swimming from the wharf at Thiele Reserve on 17 January and to a lesser extent with the initiation of the conversation and contact with Michael at Sturt Reserve on 18 January. That conversation and contact is given a particular character by the appellant’s statement made to his wife after his arrest in connexion with the H. incident.
The sense of that statement, in terms of its bearing upon the offence charged, cannot be fully appreciated unless it is accompanied and explained by the evidence of the H. incident. In one sense, that is by the way because it points to an independent ground for receiving that evidence. But it highlights the significance of the H. evidence and indicates that it would be an affront to commonsense to reject the statement made to the appellant’s wife and the evidence of the incident on the basis that it was not admissible.
In the context of the Murray Bridge evidence, the H. evidence demonstrates not only propensity and criminality but also established the appellant’s modus operandi in abducting a young boy for sexual purposes and his acknowledgment that he was thinking about indulging his propensity by recourse to the same modus operandi.
[6] (1995) 182 CLR 461.
[7] (1995) 182 CLR 461 at 488-489.
The underlying unity as set out by Cox J and the High Court is clear. In my view, it is in many respects different than the case at Bar.
An important although not fatal factor for the prosecution is the temporal difference. The J and Black cases were within 12 months of each other. The abduction of Louise Bell happened some six years earlier.
Another important difference between the Bell case and the other two cases is the matter of the sex of the victims. In the Black and J cases, there was an obvious predilection to sexually assault, abduct, and in the Black case murder, young boys. That is obviously not the case in the present matter.
A significant aspect of the nature of the J and Black cases was the use of a van. Furthermore, there is the common aspect of luring boys into the van by subterfuge. No such aspect exists in the present case. In fact, there is evidence to suggest that it was a forceful abduction at night from her house. In other words, the nature of the abduction was entirely different and amounted to a different modus operandi.
Ms McDonald presents an argument that because of the intimacy of the house and the relationship between Louise Bell and Petra Pfennig, it may be a case of inducement to come out through the window in the night instead of forceful abduction. In my view, at this stage that can be no more than mere conjecture.
In my view, the features common to all three cases cannot be elevated to pass the test required by s 34P of the Evidence Act.
I disallow the evidence.
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