R v Pfennig

Case [2016] SASC 170

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 170

Criminal Trial by Judge Alone: Voir Dire

DAVID AJ.

Introduction

  1. 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.

  2. 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. 

  3. 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.

  4. The prosecution argues that evidence which was the basis of those two convictions should be led…

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R v Pfennig [2016] SASC 170
Case
[2016] SASC 170
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CaseChat Overview and Summary

In R v Pfennig, the accused stands charged with the murder of a young girl that occurred in 1983. The prosecution aims to introduce evidence of the accused's prior convictions for the murder of a young boy in January 1989 and the abduction and sexual assault of another young boy in December 1989. The defence objects to the admission of this evidence, which is sought to be led under section 34P of the Evidence Act 1929 (SA). The central legal issue before the court is whether this evidence of the accused's previous discreditable conduct is admissible under the statutory framework and common law principles.

The court must determine the admissibility of the evidence of discreditable conduct in accordance with sections 34P and 34S of the Evidence Act. Section 34P(1) prohibits the use of such evidence to suggest that the accused is more likely to have committed the offence because of their discreditable conduct. Section 34P(2) allows for the admission of discreditable conduct evidence if its probative value substantially outweighs its prejudicial effect for a permissible use, such as proving identity or rebutting a defence. The court also has a residual discretion to exclude otherwise admissible evidence. The court applied the statutory provisions and common law principles to assess whether the evidence could be admitted for permissible purposes without impermissibly suggesting the accused's propensity to commit the offence.

The court held that the evidence of the accused's previous convictions could be admitted for the permissible purpose of proving the identity of the accused if it met the criteria in section 34P(2). The probative value of the evidence in establishing the accused's identity had to substantially outweigh any prejudicial effect it may have on the accused. The court found that the evidence was highly probative of the accused's identity and could be admitted with appropriate jury directions to mitigate any prejudicial impact. The court also considered that the evidence had strong probative value in relation to the issue of identity. The court exercised its residual discretion not to exclude the evidence on the basis that its probative value outweighed any prejudicial effect.

In conclusion, the court ordered that the evidence of the accused's previous convictions could be admitted for the purpose of proving the accused's identity in the case. The court issued directions to the jury to ensure that the evidence was not used for any other impermissible purpose.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 admissibilityEvidence 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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