R v Pfennig (No 2) - [2016] SASC 171

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v PFENNIG (No 2)
Criminal Trial by Judge Alone
[2016] SASC 171
Judgment of The Honourable Auxiliary Justice David
11 November 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - OTHER PARTICULAR CASES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
Dieter Pfennig was charged with the murder of Louise Bell on 19 November 2013. The accused elected to be tried by Judge alone. The abduction of Louise Bell occurred from her parent’s Hackham West home at some time on the night of 4 January or the morning of 5 January 1983. Her body was never found.
The prosecution case is that the accused abducted and murdered Louise Bell. Advances in DNA science led to the accused’s arrest for the murder. The deceased’s pyjama top was recovered in February 1983 from the front yard of a house in the Hackham West area, near the deceased’s home. A DNA profile was obtained from material removed from that pyjama top. That profile was compared to a DNA profile obtained from the accused by Forensic Science South Australia and the Netherlands Forensic Institute. Neither laboratory could exclude the accused as a contributor to the DNA profile obtained from the material on the deceased’s pyjama top. Weightings were given to those comparisons which the prosecution presented as circumstantial evidence. Additional to the DNA scientific evidence, substantial non-DNA scientific evidence was led at trial indicating the deceased’s pyjama top had been submerged in a specific area of the Onkaparinga River. These two broad categories of scientific evidence were supported by a circumstantial case involving the accused’s movements and whereabouts at the time of the disappearance, and his words and actions to various neighbours, friends and colleagues in the years subsequent. Direct evidence in the form of prison confessions made by the accused were also led by the prosecution.
The accused did not give evidence. The defence case was that the accused was not involved in the abduction or murder of Louise Bell. The admissibility of the DNA evidence was not challenged, however the defence argued that, for a number of reasons, there was a reasonable possibility the results were not reliable and therefore should not be accepted beyond reasonable doubt. The means by which the DNA was deposited on the pyjama top was also challenged. The defence case was that innocent transference was a reasonable possibility, as the deceased and the accused’s daughter were classmates and involved in basketball through their school. The defence also submitted that the discrepancies in the probability ratios between the South Australian and Netherlands results showed that the evidence could not be accepted beyond reasonable doubt.
Held:
1. The prison confessions are unreliable, and have been set aside for the purpose of establishing guilt beyond reasonable doubt.
2. The evidence of Richard…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pfennig (No 2)

Details

AGLC: R v Pfennig (No 2) [2016] SASC 171
Case: [2016] SASC 171
Decision Date: 11 November 2016

CaseChat Overview and Summary

The case of R v Pfennig (No 2) involved the defendant, Pfennig, who was accused of the murder of Louise Bell. The trial was held before a judge without a jury in the Supreme Court of the relevant jurisdiction. The central issue was whether the defendant was guilty of murdering Louise Bell, based on the circumstantial evidence presented. The court had to determine if the cumulative circumstantial evidence was sufficient to prove the defendant's guilt beyond reasonable doubt.

The court examined whether the circumstantial evidence, while lacking direct proof, was consistent and compelling enough to exclude any reasonable possibility of an innocent explanation. The evidence included the defendant's known relationship with the victim through his daughter, the circumstances of the victim's disappearance, and other indirect indicators pointing to the defendant's involvement. The court also considered whether the gaps in the evidence, such as the exact method and location of the abduction and murder, affected the reliability of the circumstantial evidence.

The court concluded that the circumstantial evidence, despite some unanswered questions, painted a consistent and compelling story that proved the defendant's guilt beyond reasonable doubt. The inconsistencies and gaps in the evidence did not undermine the overall reliability of the circumstantial evidence. The court found the defendant guilty of the murder of Louise Bell, emphasizing that the certainty of the verdict was not affected by the unknown details of the crime.

The final order of the court was that the defendant, Pfennig, was found guilty of the murder of Louise Bell. The court's decision was based on the compelling and consistent nature of the circumstantial evidence presented, which, despite some gaps, excluded any reasonable possibility of an innocent explanation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The pieces of circumstantial evidence paint a compelling and consistent story which amounts to proof of the elements of the offence beyond reasonable doubt to the exclusion of any reasonable possibility of any innocent explanation. Conclusion I find the accused guilty of the murder of Louise Bell. Postscript My finding of guilt is not affected by the fact that we will never know some details of what occurred or the full story. There are many tantalising gaps in the evidence. I cannot say how the deceased was actually taken from her room, whether the accused leaned through the window and dragged her out, went into the room and took her out through the front door, or induced her to come out. Having viewed the room, I find it difficult to accept that the abduction was done by force. The deceased’s sister was very close by in a very small room. Her parents were also in a small room divided from the girls’ room by a very thin wall. Any form of forceful abduction would surely have woken another member of the household. I think it more likely that the accused to some extent knew the deceased through his daughter and induced her out through the window. However, my inability to resolve that question does not affect my decision or cast any doubts in my mind about the guilt of the accused. Similarly, I cannot make a finding as to where the deceased was taken, or how. I cannot make a finding whether the accused did this on foot or had access to a car. Mr Algie submitted that the accused did not have his car at the time, but that does not affect my finding. He may not have used a car or he might have had access to a car. The evidence is silent on that topic other than establishing that he did not have the family car. I do not know how he actually killed the deceased, where he killed her, or where he put her body. These questions may never be answered, but they do not impinge upon the certainty of my verdict.

Ratio Decidendi

Legal Principle Established

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