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High Court of Australia |
PFENNIG v THE QUEEN
F.C. 95/003
Number of pages - 65
[1995] HCA 7; (1995) 182 CLR 461
(1995) 127 ALR 99
(1995) 69 ALJR 147
Evidence
HIGH COURT OF AUSTRALIA
MASON CJ(1), DEANE(1), DAWSON(1), TOOHEY(2) AND McHUGH(3) JJ
Evidence - Similar facts - Criminal trial - Admissibility - Accused charged with murder of abducted child - Body never found - Circumstantial evidence - Abduction by accused of another child twelve months after alleged abduction - Whether evidence of later abduction admissible.
ORDER
Appeal dismissed.DECISION
MASON CJ, DEANE AND DAWSON JJ This appeal raises questions as to
2. The appellant was convicted of the murder of Michael John Finlay
Black, aged ten years, at or near the town of Murray Bridge, South
Australia, on or about 18 January 1989. Michael Black disappeared,
having been last seen at Sturt Reserve on the Murray River that day.
His body has not been recovered. An appeal to the Court of Criminal
Appeal of South Australia against conviction was dismissed
unanimously. The case against the appellant was based upon
circumstantial evidence. Part of that case was the proof of
circumstances involving the abduction by the appellant of another young
boy ("H") about one year later at Port Noarlunga, South Australia. The
central question argued in the appeal to this Court from the Court of
Criminal Appeal is whether the evidence relating to the H abduction was
admissible at the trial.
3. The account of the facts which follows is largely taken from the
reasons for judgment of Mohr J in the Court of Criminal Appeal. Such
departures as there are from his Honour's statement of the facts are
occasioned by reference to the evidence and to our understanding of
it.
Michael Black's movements on 18 January 1989
4. Michael left his home in Murray Bridge at about 1.00 p.m. on
that day to go fishing. He rode his bicycle. He took with him a
fishing rod and canvas bag. He was wearing a red and blue striped
cotton knit shirt, shorts, underpants and blue thongs. He did not
take swim shorts with him. It is possible, though unlikely, that he
was wearing swim shorts as underpants. He had no towel. He was
accompanied by the family dog. He arrived at Sturt Reserve between
1.00 p.m. and 1.30 p.m., probably close to 1.30 p.m.
5. Sturt Reserve is on the same side of the Murray River as the
town. The Reserve consists of an area of lawn, running down to the
bank of the river. There is a large rowing shed, shelter sheds, a
wharf, swings, barbecue facilities and a kiosk which serves
refreshments.
6. Michael was seen by various people at Sturt Reserve. No witness
spoke of seeing a boy who could have been Michael at the Reserve later
than just before 3.00 p.m. on 18 January. The evidence of the
witnesses as to time was not precise, a matter to be expected in light
of the fact that they were giving evidence at the trial of events
which had happened more than three years earlier.
7. Mr Haines, who knew Michael by sight, saw a boy, probably
Michael, at 2.25 p.m. This seems to have been the last occasion on
which Michael was seen on 18 January. Some witnesses spoke of seeing
Michael a few minutes before 3.00 p.m., but on their own admission,
and in the opinion of the trial judge, their recollection as to the
precise time was vague.
8. The next evidence of Michael's whereabouts relates to Thiele
Reserve which is up river and on the other side of the river. Later
in the afternoon of 18 January, Michael's bicycle, fishing rod, bag
and thongs were found neatly stacked against perma-pine railings at
Thiele Reserve. His shirt was found in willows growing on the bank of
the river at the upstream end of the Reserve. Nearby was a piece of
twine tied to a tree stump. It is possible that Michael's dog had been
tied with it. Michael was not seen by anyone at Thiele Reserve.
9. Evidence was given by Byron Drechsler, who was about 15 years
old at the time of Michael's disappearance, to the effect that he had
at one stage believed that he had seen Michael riding across the
bridge away from Sturt Reserve, with his dog and fishing rod, at about
3.10 p.m. on the afternoon of 18 January. However, other evidence
clearly established that any sighting of Michael by Drechsler must have
been prior to 1.22 p.m. on that day and Dreschler, in the course of
his evidence, expressly conceded that his original belief as to time
was mistaken.
10. After Michael's disappearance had been notified, an extensive
search was made. Police divers carried out an underwater search of
the river bottom and banks and found nothing. The divers and the
officer in charge testified that there was only a remote possibility
that Michael's body was in the river but undiscovered. The evidence
was that in a period of 24 years there had been 137 operations
conducted to recover bodies from inland waters in South Australia and
on only one occasion had there been a failure to discover a body and
that was in flood conditions.
11. The evidence was significant because it meant that the jury was
entitled to find that Michael's body was not in the river. There was
evidence from Dr Manock, a pathologist, that, if a person drowned, the
body would sink to the bottom after death and would remain there for
two or three days. It would then rise to the surface and float.
12. As well as the river search, an extensive land search was made
without success. Apart from the official search, unofficial searches
of the river and its banks were made for some time. Some searching
continued for a period of three years without success.
13. At the trial, counsel for the appellant conceded that there were
only two possible explanations for Michael's disappearance: either
that he drowned or that he was abducted. The presence at Thiele
Reserve of the bicycle and the other articles associated with Michael
indicates that, if Michael drowned, it was at Thiele Reserve.
Although his mother gave evidence that he told her that he was going
swimming, the evidence points to the inference that he did not swim at
the Reserve. He had earlier declined an opportunity to go swimming
that day; he disliked swimming alone and he did not swim that day at
Sturt Reserve which was one of his favourite swimming spots. There
were people at the Reserve, including two boys whom he knew, at the
time when he would have arrived there, if he arrived at all. The two
boys were fishing at the Reserve yet they did not see him, let alone
speak to him. He took no towel; it seems that he did not take his
swim shorts and his father testified that Michael did not like Thiele
Reserve. He had been forbidden by his parents to ride his bicycle
across the bridge. There was evidence that he was a competent
swimmer.
The appellant's movements on 17 and 18 January 1989
14. The evidence led by the Crown as to the appellant's movements on
17 and 18 January was not in dispute. According to Mrs Pfennig, who
was then living with the appellant but has since been divorced, he
left home on 17 January driving his white Kombi van and returned on 20
January. The purpose of the trip was to study physics for his next
teaching position. The van was equipped with a television set and
radio and sleeping and cooking facilities.
15. One witness, Mr Smart, gave evidence that he spoke to the
appellant at about 4.00 p.m. on 17 January. He asked Mr Smart if he
knew of any place where it was possible to swim in the nude. Mr Smart
gave him directions to Thiele Reserve. Shortly afterwards, the
appellant joined two children who were swimming from the wharf at
Sturt Reserve. He asked them if there were any interesting places to
visit and invited them to join him in the van if they wished to
accompany him. They declined his invitation.
16. On the next day, the appellant was seen at Sturt Reserve. Mrs
Rooke observed him sitting in his van, watching her and two young
children with her. Mr Haines, who saw Michael Black at Sturt Reserve
at about 1.55 p.m., saw a man speaking to a boy, in all probability
Michael, at about 2.25 p.m. That was the last occasion on which
Michael was seen at Sturt Reserve. The description given of the man
by Mr Haines was not an accurate description of the appellant and may
not have been an accurate description of the clothes he was wearing.
Mr Haines said he could not recall seeing any facial hair and he
described the man's hair as being a bit longer than short back and
sides. The appellant had a moustache and had just had a haircut with
the result that, according to his daughter, his hairstyle would have
been described as short back and sides. The appellant claimed that he
left Sturt Reserve by 2.30 p.m. though he conceded that he left by 2.45
p.m. at the latest.
17. At about 2.45 p.m., Mr Toogood, a council employee, saw an old
white Kombi van leaving the Reserve at an unsafe speed travelling
towards the main street of Murray Bridge. Continuing in that
direction the van would have crossed a bridge to the south of the river
where Thiele Reserve is located. Mr Toogood said that he had earlier
seen the same or a similar vehicle travelling in the direction of
Sturt Reserve. The trial judge regarded Mr Toogood's evidence as
somewhat unsatisfactory and instructed the jury that it would be unsafe
to rely on his evidence except to the extent that he testified to
seeing an old white Kombi van, whose engine made a typical VW noise,
and that the van could have been the appellant's van.
18. Mrs Gould, who then lived in a house overlooking Thiele Reserve,
heard a commotion below her house at about 3.00 p.m. to 3.30 p.m. The
noise was caused by a vehicle with a loud engine with its wheels
spinning in gravel. She heard a dog barking in an excited manner.
She gave evidence of an experiment in which she was able to identify
more than 12 months later the noise from the appellant's van as being
similar to the noise which she heard on the afternoon of 18 January
1989. Michael's dog was seen in the vicinity not long after 3.20 p.m.
Michael's belongings had been placed against the perma-pine railings
before that time.
19. Mr Jones gave evidence that he went to Thiele Reserve
waterskiing on 18 January at 4.00 p.m. or thereabouts. He saw a Kombi
van on the opposite side of the road that runs virtually parallel to
the river bank. It was parked off the road opposite the boat ramp
that he was using, in the vicinity of the place where Michael's bicycle
and gear were found. Mr Jones' description of the vehicle fitted the
appellant's van. Mr Jones originally gave the date as 17 January.
Some question arises about the date on which he went on to Thiele
Reserve. If the evidence of the Haebich children and Mr Smart that
the appellant was at Sturt Reserve in the afternoon of 17 January is
accepted, it seems that Mr Jones visited the Reserve on 18 January,
that being a day on which he considered that he was there, if he was
mistaken about 17 January. Another witness, Mr Neindorf, saw a white
Kombi van in the carpark area of Thiele Reserve on 18 January. But no
witness saw a vehicle entering or leaving that Reserve which was
likely to have been used by an abductor.
20. Michael was not seen at Sturt Reserve at any time after Mr
Toogood saw the white van leave at about 2.45 p.m. This fact is
significant as there were people at Sturt Reserve who knew him. Mrs
Regnier and Miss Giles, who closed the canteen at 3.00 p.m. or 3.15
p.m. and left the Reserve then, did not see him at that time.
21. There was evidence from the appellant's daughter Petra Pfennig,
Nicola Davis and Diane Davis about the appellant's statements to them
about his dealings with Michael Black at Sturt Reserve on 18 January.
He admitted to them that he had spoken to Michael at the Reserve. He
also said that he had patted Michael's dog. Petra Pfennig said that
the appellant had told her that he saw Michael twice that day. She
said that the appellant told her that Michael was trying to scale a
fish with a thong so the appellant lent him a knife to scale the fish
and when Michael brought the knife back the appellant asked him to put
it in the van. The appellant said that his daughter must have
misunderstood him. On the other hand, Nicola Davis said that the
appellant told her that he lent Michael a knife to do something with a
tangle in his fishing line.
22. It follows that, on the prosecution case, there was evidence
that the appellant was at Sturt Reserve when Michael was present, that
he was in conversation with Michael who, on one occasion at least, was
close to the appellant's van, that he left Sturt Reserve at or about
the time when Michael was last seen at the Reserve. And there was
evidence from Mrs Gould from which it could be inferred that the
appellant's van was at Thiele Reserve after Michael's belongings were
placed near the perma-pine railings. The appellant's account of his
movements after he left Sturt Reserve was not confirmed by any other
evidence.
The H evidence
23. The appellant pleaded guilty in 1990 to having abducted and
raped H, a thirteen year old boy, at Port Noarlunga. The appellant
denied that he abducted H for the purpose of raping him and there is a
question whether the appellant would have released the boy eventually.
24. H gave evidence that he was riding a bicycle past the
appellant's white Kombi van at Port Noarlunga at 1.30 p.m. on 30
December 1989, that the appellant inveigled him into entering the van
and then closed the sliding door, refusing to allow H to leave. The
appellant then brought the bicycle into the van but later left it at
the top of a cliff, first wiping it with a cloth. The appellant
bound, gagged and blindfolded H and held him as a prisoner in the van
and later in the appellant's house. The appellant sexually molested
the boy in a variety of ways and subjected him to various indignities.
These incidents occurred during the afternoon of the day on which the
boy was abducted, the following night and morning. When the appellant
was absent at lunchtime that day, the boy managed to escape and
telephone his father and the police. The appellant was arrested when
he arrived home.
25. The appellant's former wife, Sandra Pfennig, gave evidence that
he telephoned her twice after his arrest and said that he wanted a
solicitor. In the first conversation at about 1.00 p.m. or a little
later, he told her that he had been arrested for kidnapping and sexual
assault. In the second conversation at about 5.00 p.m. after she
asked why he had done it, he said that he was lonely and that he had
been thinking of "it" on and off for the past 12 months. He said that
he had just driven around, found somebody and threw "them" into the
van.
26. Detective Hirlam gave evidence of the following conversation
with the appellant when he was arrested. Hirlam said, "We have had an
allegation from a young boy that you brought him here against his will
and tied him up, is that correct?"
"Appellant: How did you know?
Hirlam: He managed to escape while you were gone. Why did you do it?
Appellant: Loneliness. If he is in there, can you release him?
Hirlam: What is your name?
Appellant: Mud.
Hirlam: Did you have any sexual contact with him?
Appellant: Just fondling. I just wanted someone to hug."
The appellant was then arrested.
27. The appellant gave a somewhat different version of this
conversation in his evidence.
The course of the trial
28. The trial judge (Cox J) conducted a lengthy voir dire in
advance of the presentation of the Crown case with a view to
determining the admissibility of the H evidence. Ultimately it was
agreed by counsel that a decision on that evidence should not be given
before the commencement of the trial. Counsel for the appellant
indicated that he would be able to cross-examine Crown witnesses
without alluding to the H incident. The trial then commenced; the
Crown did not open on the similar fact evidence.
29. The trial judge, after hearing the evidence of almost 100
witnesses, heard further submissions on the admissibility of evidence
of the H incident. His Honour, while acknowledging the existence of
inconsistencies in the evidence of the witnesses, made certain
specific findings:
1. Michael Black probably rode across the bridge before going to Sturt
Reserve on 18 January. It is very unlikely he went as far as Thiele
Reserve. He was at Sturt Reserve by 1.30 p.m. He did not ride his
bicycle to Thiele Reserve after that.
2. Toogood saw Michael going to Sturt Reserve. He also saw a white
Kombi van on two occasions that afternoon. It was probably the
appellant's van that he saw on each occasion.
3. Haines saw Michael at Sturt Reserve about 1.55 p.m. and 2.25 p.m.
The man to whom the boy was speaking at 2.25 p.m. was in all
likelihood the appellant.
4. Bernardi saw the bicycle leaning against the railing near the
toilet block at Thiele Reserve before 3.26 p.m. Probably the fishing
gear was also there then, and both the bicycle and the gear remained
there afterwards.
5. Drowning was not a reasonably possible explanation for Michael's
disappearance. The theory encounters a number of improbabilities -
that he went to Thiele Reserve despite his known dislike for the
place, that he did not observe or speak to the children there whom he
knew, that he was not noticed by any of the people there, that he went
swimming alone though he had not intended to swim when he set out, and
that no body was discovered after a search of the river.
6. The only rational alternative to drowning was abduction, a matter
which was conceded by counsel for the appellant. Any abduction was
likely to have been for a sexual purpose. And, if he was abducted and
sexually assaulted, it must be inferred that he was murdered by the
person or persons who abducted him.
The prosecution case was presented on the footing that abduction might
have occurred as a result of Michael being lured into the clutches of
his abductor. His Honour's references to abduction are to be
understood as including such a situation.
30. His Honour considered that Michael might have been abducted at
any one of a number of places but concluded that it was likely that he
left Sturt Reserve in a vehicle driven by his abductor, the vehicle
being commodious enough to take Michael's bicycle, gear and dog. This
conclusion, coupled with the evidence concerning the appellant's
presence in Sturt Reserve at the relevant time, including his
admissions that he spoke to Michael, and the evidence relating to his
van and its movements, provided the foundation for the reception of
evidence of the H incident. In other words, the appellant had the
opportunity to abduct and murder Michael. The H evidence revealed the
appellant's propensity to abduct a young boy for sexual purposes and
by means which were likely to have been adopted by the abductor in the
present case. On this footing, the trial judge considered that the H
evidence was admissible.
31. The trial judge said:
"In my opinion, the evidence of the accused's presence and
Michael Black on the afternoon of January 18, 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
(H) 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 connexion
between the propensity evidence and the alleged instant crime and so
establish overall the requisite high degree of proof."
His Honour later said:
"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."
32. His Honour pointed to the similarities in the pattern of conduct
which must have been engaged in by Michael's abductor and by the
appellant in the H incident, particularly leaving the victim's
belongings in a way that was calculated to lay a false trail and
suggest accidental drowning - compare the disposal of HHH's bicycle at
Port Noarlunga. However, his Honour noted that the fact that there
was no murder in the case of H was an important dissimilarity which
would normally tell against the admission of the H evidence. But the
inconclusiveness of the evidence as to the appellant's intentions with
respect to the ultimate fate of the boy militated against that
treatment of it.
33. In the result, his Honour considered that it was a case about
improbabilities, sufficiently strong to compel a factual conclusion
adverse to the appellant. Further, his Honour thought that the basic
similarity of the two crimes, including the appellant's behaviour at
Sturt Reserve and the laying of a false trail with the bicycle, gave
the two incidents an "underlying unity". Although the evidence was
very prejudicial, its probative force was so strong that it should be
admitted.
34. His Honour remarked:
"The test of admissibility for propensity evidence isexceptionally high. It has been said that the trial judge 'must apply
The appellant's evidence at the trial
35. Although the admissibility of the H evidence fell to be
determined before the appellant's case was presented, it is convenient
to state the effect of the appellant's evidence at the trial as it
relates to Michael. The appellant stated that he had driven his Kombi
van to Sturt Reserve on 17 January. He said that he first saw the boy
who, he acknowledges, must have been Michael fishing near a willow,
when he was sitting or leaning against a small retaining wall. The
appellant stated that he saw Michael trying to beat a fish to death
with a thong. The appellant yelled out, "Hey, haven't you got a
knife?". The appellant went to his van, obtained a knife, went over
to Michael, showed him how to dispatch the fish and handed over the
knife. There was a conversation about bait and the hook size. The
conversation, which lasted a matter of minutes, took place at the
water's edge where Michael had his gear. The appellant saw a dog
there which he identified from photographs as Michael's dog and asked
Michael to bring the knife back when he was finished.
36. The appellant then returned to a position in front of the van
which was 10 to 15 metres away from the place where the first
conversation had taken place. Subsequently, Michael returned the
knife within ten minutes and the appellant said, "Just put it back in
the van." When Michael came back from the van, he said, "You have got
a TV set in there." He went back to the van to see whether the cricket
was on television in response to a question from the appellant who
asked whether the cricket was on. Shortly after, he returned to the
willow where he had been fishing.
37. The appellant said that shortly afterwards he packed up and went
into town in the van. The trial judge summarized the appellant's
evidence in response to the question whether it was 2.45 p.m. when he
left as follows:
"That would be close to the latest time. I believe that I left
earlier than that. I now think it was 2.15 to 2.30. I would have left
before 2.30. It could have been 2.45, but it is unlikely to have been
as late as that. It is unlikely that I left via Sturt Reserve Road but
I can't exclude that."
He denied that he went to Thiele Reserve on 18 January.
The trial judge's summing-up with respect to the H evidence
37A. Cox J clearly instructed the jury on a number of occasions that
the H evidence was relevant, at the most, to the question of the
abductor's identity and that it could not be used to resolve any
doubts they may have had on the question whether there was an abduction
at all. His Honour told the jury that, if the Murray Bridge evidence
did not satisfy them that Michael Black was abducted and murdered,
they must find the appellant not guilty. If, however, they rejected
drowning as a reasonable possibility and were satisfied that Michael
was abducted and murdered, it would be open for them to take into
account the H evidence in deciding whether the Crown had proved that
the appellant had committed the abduction and murder. Earlier, the
trial judge told the jury that, if Michael was abducted, the most
likely motive was a sexual one and, if he was killed afterwards, the
likely explanation might be a wish to silence a potential witness.
38. The trial judge stated that the Crown pointed to the unusual
type of crime which had been committed - the abduction of a ten year
old boy for sexual purposes - and relied on the H evidence as showing
that the appellant had a disposition to abduct and sexually assault
young boys. This, along with other circumstantial evidence, was
relied on to prove that the appellant was the abductor and the
murderer. His Honour went on to say that, if he was not, there were
two persons in Michael's vicinity at Murray Bridge, both almost
certainly at Sturt Reserve, each with a propensity to kidnap and
sexually assault young boys and having the physical means that
afternoon to do so. According to the Crown, it was an affront to
common sense to postulate such a possibility.
39. His Honour referred to the Crown argument that the jury could
infer from the H evidence that the appellant intended to kill H
because he knew too much and went on to remark that the jury might
think that the evidence was inconclusive on that question. His Honour
observed that, in that event, there was possibly a very important
difference between the H incident and what happened at Murray Bridge
and this would require the jury to think very carefully before reaching
a conclusion on the question of identity adverse to the appellant.
The admissibility of similar fact evidence
40. The appellant's basic challenges to the reception of the H
evidence are that propensity reasoning is an inadequate foundation for
its admission and that, even if admission on that footing might be
legitimate in some circumstances, no adequate factual foundation was
established in the present case. The appellant submits that the trial
judge's directions transgressed the general principle that it is 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 trieda (2 Makin v.
Attorney-General for New South Wales (1894) AC 57 at 65) . The
appellant further submits that there was lacking in the present case
that underlying unity between the offences charged and the conduct
disclosed by the H evidence which is essential before similar fact
evidence amounting to propensity evidence can be admitteda (3 Moorov
v. H.M. Advocate (1930) JC 68) . In other words, there was an absence
of that striking similarity to which Gibbs CJ referred in Sutton v.
The Queena (4 [1984] HCA 5; (1984) 152 CLR 528 at 535) when speaking of similar
fact evidence adduced to establish identity.
41. Contemporary discussion of the problems attending the reception
of similar fact and propensity evidence has its origins in the
statements of principles by Lord Herschell LC in Makin v.
Attorney-General for New South Wales. Lord Herschell enunciated two
relevant principles which have had continuing influence. The first
was that the prosecution cannot "adduce evidence tending to shew 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"a (5 (1894)
AC at 65) . That principle was later described as a "fundamental"
principle in the law of evidencea (6 Maxwell v. D.P.P. (1935) AC 309
at 317, 320, and see also Burrows v. The King [1937] HCA 56; (1937) 58 CLR 249 at 253
per Latham CJ) .
42. The second principle was that "the mere fact that the evidence
adduced tends to shew 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"a (7 (1894) AC at 65) . It is evident that there was an
element of tension between the two principles as thus stated. That
tension was partly due to the ambiguity inherent in the use of the word
"relevant". The second principle, as expressed by Lord Herschell,
seemed to imply that propensity evidence was not as such relevant to
the determination of the crime charged, rather that it was relevant to
that determination but inadmissible for some overriding policy reason,
i.e., that in many cases its prejudicial effect would outweigh its
probative force.
Subsequent development of the Makin principles
in the English cases
43. The judgments in succeeding cases suggested that the second
principle was directed to justifying the admissibility of similar fact
or propensity evidence when it tended to disprove a denial or defence
which was otherwise available to the accuseda (8 Thompson v. The King
(1918) AC 221), e.g., an alibia (9 ibid) or the absence of guilty
intentiona (10 Noor Mohamed v. The King (1949) AC 182 at 191-192) .
In Noor Mohamed v. The Kinga (11 ibid. at 191-192, 194), the Judicial
Committee of the Privy Council specifically rejected the view which
Lord Goddard LCJ had expressed in R. v. Simsa (12 (1946) KB 531) .
His Lordship had saida (13 ibid. at 539) :
"If one starts with the assumption that all evidence tending to show a
disposition towards a particular crime must be excluded unless
justified, then the justification of evidence of this kind is that it
tends to rebut a defence otherwise open to the accused; but if one
starts with the general proposition that all evidence that is
logically probative is admissible unless excluded, then evidence of
this kind does not have to seek a justification but is admissible
irrespective of the issues raised by the defence, and this we think is
the correct view. It is plainly the sensible view."
44. In Noor Mohamed (14 (1949) AC at 194), Lord du Parcq, speaking
for the Judicial Committeea, criticized this statement on the ground
that "logically probative" might be understood to include much evidence
which is held to be "irrelevant". Just what Lord du Parcq meant by
"irrelevant" is not altogether clear. It has been suggested that his
Lordship was referring to categories of inadmissible evidence including
hearsay and secondary evidence of documentsa (15 Reg. v. Boardman
(1975) AC 421 at 449 per Lord Hailsham of St Marylebone) .
45. However, the criticism of the dicta in Sims did not extend to
the decision itself which has been generally regarded as correct. In
Sims, where a person was charged in one indictment with several
offences of sodomy and gross indecency with several men and the
evidence of each man was that the accused invited him into his house
and there committed the acts charged, the acts in each case bearing a
striking similarity to each other, it was held that the evidence of
the other acts was admissible in relation to each charge to show the
nature of the act done by the accused. That evidence was held to be
admissible, not only because the acts bore "a striking similarity" to
each othera (16 (1946) KB at 539-540), but also because "(t)he
probative force of all the acts together is much greater than one
alone"; they showed that the visits to the accused's house were for a
guilty not for an innocent purposea (17 ibid. at 540) . The
correctness of the decision in Sims on that footing was accepted in
Reg. v. Kilbournea (18 (1973) AC 729) and Reg. v. Boardmana (19
(1975) AC, especially at 444 per Lord Wilberforce) .
46. However, before Boardman was decided, the received doctrine was
that mere propensity evidence was inadmissible; to be admitted the
evidence must go to something other than disposition. Boardman
changed that received doctrine by discarding the earlier approach to
admission of similar fact evidence based on identifiable categories.
Instead, in Boardman, the House of Lords adopted as the guiding
principle to determine the admissibility of similar fact evidence the
test whether the prejudice to the accused is outweighed by the
probative force of the evidence. In that case, the headmaster of a
boarding school for boys was charged with buggery with S, a pupil aged
16, and inciting H, a pupil aged 17, to commit buggery on him. It was
held that the evidence of S on the count concerning him was admissible
as corroborative evidence in relation to the count concerning H and
vice versa. The trial judge, it was held, was entitled to decide that
the probative force of the similar fact evidence outweighed its
prejudicial effect because there was a striking similarity or
underlying unity between the similar fact evidence and the evidence of
the acts relevantly charged (20 ibid. at 441, 444, 453, 454, 462) .
47. Lord Cross of Chelsea, who reflected the majority view in
Boardman, observed that the reason for the general rule of exclusion
in relation to propensity evidence is a (21 ibid. at 456) :
"not that the law regards such evidence as inherently irrelevant but
that it is believed that if it were generally admitted jurors would in
many cases think that it was more relevant than it was, so that ...
its prejudicial effect would outweigh its probative value.
Circumstances, however, may arise in which such evidence is so very
relevant that to exclude it would be an affront to common sense."
His Lordship went on to saya (22 ibid. at 457) :
"The question must always be whether the similar fact evidence taken
together with the other evidence would do no more than raise or
strengthen a suspicion that the accused committed the offence with
which he is charged or would point so strongly to his guilt that only
an ultra-cautious jury, if they accepted it as true, would acquit in
face of it. In the end - although the admissibility of such evidence
is a question of law, not of discretion - the question as I see it
must be one of degree."
48. As will appear later in these reasons, the passage just quoted
is important and has significance for the question to be decided in
the present case.
49. Subsequently, in D.P.P. v. Pa (23 (1991) 2 AC 447), the House of
Lords rejected the proposition that "striking similarity" was an
essential prerequisite of admissibility of similar fact evidence in all
cases, holding that the essential feature of the evidence to be
admitted is that its probative force is sufficiently great to make it
just to admit despite its prejudicial effecta (24 ibid. at 460-461) .
In D.P.P. v. P, the accused was charged with rape and incest against
each of his two daughters. The trial judge refused an application that
the counts relating to each girl should be tried separately and
admitted evidence of an offence against one victim in connection with
an alleged offence against another. The House of Lords held that the
evidence was properly admitted on the ground that its probative force
was so great as to make it just to admit it notwithstanding that it was
prejudicial to the accused.
50. Lord Mackay of Clashfern LC (with whom the other Law Lords
agreed) rejected thee notion that "striking similarity" is an
essential element in every case in allowing evidence of an offence
against one victim to be heard in connection with an allegation against
another, though his Lordship acknowledged that, in cases of identity,
"evidence of a character sufficiently special reasonably to identify
the perpetrator is required"a (25 ibid. at 460) .
51. The Lord Chancellor observed (26 ibid) :
"(T)he essential feature of evidence which is to be admitted is that
its probative force in support of the allegation that an accused
person committed a crime is sufficiently great to make it just to admit
the evidence, notwithstanding that it is prejudicial to the accused in
tending to show that he was guilty of another crime. Such probative
force may be derived from striking similarities in the evidence about
the manner in which the crime was committed ... But restricting the
circumstances in which there is sufficient probative force to overcome
prejudice of evidence relating to another crime to cases in which
there is some striking similarity between them is to restrict the
operation of the principle in a way which gives too much effect to a
particular manner of stating it and is not justified in principle."
The Lord Chancellor went on to say (27 ibid. at 461) :
"Whether the evidence has sufficient probative value to outweigh its
prejudicial effect must in each case be a question of degree."
52. The Lord Chancellor regarded the relationship between the
evidence relating to one victim and the evidence relating to another
victim as critical. In this respect, his Lordship saida (28 ibid. at
462) :
"This relationship, from which support is derived, may take many forms
and while these forms may include 'striking similarity' in the manner
in which the crime is committed, consisting of unusual characteristics
in its execution the necessary relationship is by no means confined to
such circumstances. Relationships in time and circumstances other
than these may well be important relationships in this connection.
Where the identity of the perpetrator is in issue, and evidence of this
kind is important in that connection, obviously something in the nature
of what has been called in the course of the argument a signature or
other special feature will be necessary. To transpose this requirement
to other situations where the question is whether a crime has been
committed, rather than who did commit it, is to impose an unnecessary
and improper restriction upon the application of the principle."
53. The exposition of the principles in D.P.P. v. P represents an
authoritative statement of the relevant law as it presently stands in
England.
New Zealand
54. The approach adopted in D.P.P. v. P has been followed by the New
Zealand Court of Appeala (29 Reg. v. Accused (1991) 7 CRNZ 604; Reg.
v. McIntosh (1991) 8 CRNZ 514) .
Canada
55. In Reg. v. Morina (30 (1988) 44 CCC (3d) 193 at 217-218), the
Supreme Court of Canada adhered to the view that, although evidence of
propensity was relevant to establish the commission of a crime, it was
inadmissible for that purpose unless it was relevant to an issue apart
from its tendency to show propensity and its probative value exceeded
its prejudicial effecta. But, in Reg. v. B (CR)a (31 (1990) 55 CCC
(3d) 1), the Supreme Court recognized that the general exclusionary
rule against the reception of evidence adduced solely to show that the
accused is the sort of person likely to have committed an offence is
not an absolute. According to McLachlin J (with whom Dickson CJC.,
Wilson, L'Heureux-Dub and Gonthier JJ agreed)a (32 ibid. at 25) :
"Whether the evidence in question constitutes an exception to this
general rule depends on whether the probative value of the proposed
evidence outweighs its prejudicial effect ... where the similar fact
evidence sought to be adduced is prosecution evidence of a morally
repugnant act committed by the accused, the potential prejudice is
great and the probative value of the evidence must be high indeed to
permit its reception. The judge must consider such factors as the
degree of distinctiveness or uniqueness between the similar fact
evidence and the offences alleged against the accused, as well as the
connection, if any, of the evidence to issues other than propensity,
to the end of determining whether ... the probative value of the
evidence outweighs its potential prejudice and justifies its
reception."
56. The law in Canada, as thus stateda (33 See also Reg. v. C (MH)
(1991) 63 CCC (3d) 385 at 392; Reg. v. B (FF) (1993) 79 CCC (3d) 112),
closely resembles the law as expressed subsequently by Lord Mackay of
Clashfern LC in D.P.P. v. P and as applied in New Zealand.
The Australian authorities
57. In this Court, in conformity with earlier English authorities,
it was accepted that propensity evidence is not admissible if it shows
only that the accused has a propensity or disposition to commit a
crime or that he or she was the sort of person likely to commit the
crime charged. But it was accepted that it is admissible if it is
relevant in some other way, that is, if it tends to show that the
accused is guilty of the offence charged for some reason other than
that he or she has committed crimes in the past or has a criminal
dispositiona (34 Markby v. The Queen [1978] HCA 29; (1978) 140 CLR 108 at 116; Perry
v. The Queen [1982] HCA 75; (1982) 150 CLR 580 at 609; Sutton v. The Queen (1984) 152
CLR at 533, 545-546, 556-557, 562-563) . It was also accepted that, in
order to be admissible, propensity evidence must possess "a strong
degree of probative force"a (35 Markby (1978) 140 CLR at 117; Perry
(1982) 150 CLR at 586, 589, 604; Sutton (1984) 152 CLR at 533) or the
probative force of the evidence must clearly transcend the prejudicial
effect of mere criminality or propensitya (36 Perry (1982) 150 CLR at
609; Sutton (1984) 152 CLR at 548-549, 559-560, 565; Harriman v. The
Queen [1989] HCA 50; (1989) 167 CLR 590 at 633) . Very often, propensity evidence is
received when there is a striking similarity between different offences
or between the evidence of different witnesses a (37 Markby (1978) 140
CLR at 117; Perry (1982) 150 CLR at 603, 607, 610; Sutton (1984) 152
CLR at 535, 549, 559, 566-567) . In particular, it was recognized that
the existence of such striking similarity is necessary in cases such as
Sutton where the prosecution seeks to lead the evidence on the basis
that the similarity between different offences founds a conclusion that
they must have been committed by the one person with the consequence
that evidence which would be admissible to show that an accused
committed one of the offences is admissible to prove that he or she
committed another or the others of them.
58. The insistence in some of the judgments of this Court on the
need to show that propensity evidence was relevant to "some other
issue" as one of the prerequisites of its admissibility so as to prove
the commission of the offences charged contributed to a
misunderstanding of the Makin principles and to statements of
principles which lacked a clear and coherent theoretical foundation.
So much was recognized by Mason CJ, Wilson and Gaudron JJ in Hoch
v. The Queena (38 [1988] HCA 50; (1988) 165 CLR 292 at 294) where their Honours
stated that the basis for the admission of similar fact evidence lies
in its possessing a particular probative value or cogency such that, if
accepted, it bears no reasonable explanation other than the inculpation
of the accused in the offence charged. 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 a (39 ibid. at 295) . Mason
CJ, Wilson and Gaudron JJ saida (40 ibid. at 294-295. This passage
was subsequently cited by Dawson J in Harriman (1989) 167 CLR at 600)
:
"Assuming similar fact evidence to be relevant to some issue inthe trial, the criterion of its admissibility is the strength of its
59. An important distinction is to be drawn between cases such as
the present case in which the "similar facts" are not in dispute and
cases in which such facts are in dispute. Thus, their Honours
saida (41 ibid. at 295) :
"Where the happening of the matters said to constitute similarfacts is not in dispute and there is evidence to connect the accused
60. Where the propensity or similar fact evidence is in dispute, it
is still relevant to prove the commission of the acts chargeda (42
Boardman (1975) AC at 452, 458-459; Sutton (1984) 152 CLR at 556-557;
Hoch (1988) 165 CLR at 295) . The probative value of the evidence lies
in the improbability of witnesses giving accounts of happenings having
the degree of similarity unless the events occurred. Obviously the
probative value of disputed similar facts is less than the probative
value those facts would have if they were not disputed. But the
prejudicial effect of those facts may not be significantly reduced
because the prejudicial effect that the law is concerned to guard
against is the possibility that the jury will treat the similar facts
as establishing an inference of guilt where neither logic nor
experience would necessitate the conclusion that it clearly points to
the guilt of the accused. 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 accuseda (43 Hoch (1988) 165 CLR
at 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement
with the remarks of Dawson J in Sutton (1984) 152 CLR at 564). See
also Harriman (1989) 167 CLR at 602) . Here "rational" must be taken
to mean "reasonable"a (44 See Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 at
634; Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252) 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 Only if there is no such
view can one safely conclude that the probative force of the evidence
outweighs its prejudicial effect. And, unless the tension between
probative force and prejudicial effect is governed by such a principle,
striking the balance will continue to resemble the exercise of a
discretion rather than the application of a principle.
61. In our view, the principles stated above which derive from Hoch
correctly state the law with respect to the admissibility of similar
fact evidence. Those principles have not been disavowed by any
subsequent decision of this Court and they were accepted and applied
by the trial judge in this very case. The discussion in Hoch was
expressed in terms of evidence of similar facts rather than propensity
evidence. That was because the evidence in that case lent itself to
that classification though, in the light of the possibility of
concoction, it was held to be inadmissible.
62. There has been a tendency to treat evidence of similar facts,
past criminal conduct and propensity as if they each raise the same
considerations in terms of admission into evidence. The difficulty is
that their probative value varies not only as between themselves but
also in relation to the circumstances of particular cases. Thus,
evidence of mere propensity, like evidence of a general criminal
disposition having no identifiable hallmark, lacks cogency yet is
prejudicial. On the other hand, evidence of a particular distinctive
propensity demonstrated by acts constituting particular manifestations
or exemplifications of it will have greater cogency, so long as it has
some specific connection with or relation to the issues for decision
in the subject case. That evidence, as has been said, will be
admissible only if its probative value exceeds its prejudicial effect.
But that statement, it seems to us, is of little assistance unless it
is understood that 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
Boardmana (45 (1975) AC at 457), 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.
63. Acceptance of the statement of principles stated above means
that striking similarity, underlying unity and other like descriptions
of similar facts are not essential to the admission of such evidence,
though usually the evidence will lack the requisite probative force if
the evidence does not possess such characteristics. What is more,
that approach conforms with the approach that now exists in the United
Kingdom, Canada and New Zealand.
64. In Harriman v. The Queena, Dawson J pointed outa (46 (1989) 167
CLR at 597-598) :
"In the past, evidence of a criminal propensity to commit crimein general, or a particular kind of crime, appears to have been
The role of the trial judge in admitting propensity evidence
65. Once that criterion of admissibility is accepted, it is apparent
that the trial judge is required to discharge an important
responsibility. That point was made by the Supreme Court of Canada in
Reg. v. B (CR)a (49 (1990) 55 CCC (3d) 1) where it was accepted that
the process of balancing the probative value of the evidence against
its prejudicial effect was a delicate one. 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 innocencea (50 Sutton (1984) 152
CLR at 564; Hoch (1988) 165 CLR at 296; Harriman (1989) 167 CLR at 602).
The use to which the H evidence was put
66. It is of first importance in the present case to recognize that
the trial judge decided to receive the H evidence after conducting a
voir dire which led him to conclude that drowning was not a reasonably
possible explanation for Michael's disappearance, that the only
rational alternative was abduction for a sexual purpose and that, if
he was abducted and sexually assaulted, the inference must be that
Michael was murdered by his abductor. Later the trial judge carefully
instructed the jury that the H evidence was relevant, at the most, to
the question of the abductor's identity and that it could not be used
to resolve any doubts on the question whether there was an abduction
at all. It was only if, on the Murray Bridge evidence, the jury
rejected drowning as a reasonable possibility and were satisfied that
Michael was abducted and murdered, they could take into account the H
evidence in deciding whether the appellant had committed the abduction
and murder. His Honour's directions on this point were clear and there
was no possibility that the jury could misunderstand them.
The correctness of the trial judge's conclusions on the voir dire
67. The challenge to the trial judge's conclusions on the voir dire
rests very largely on the possibility that Michael drowned, though his
body was not recovered, and the further possibility that he was
abducted or induced to leave the Murray Bridge area for a purpose
other than sexual gratification. The prosecution case, which it was
clearly open to the jury to accept, was that drowning at Thiele Reserve
must be rejected as a reasonable possibility. On the evidence, Michael
would not have gone voluntarily to Thiele Reserve; he was forbidden to
go there and he did not like the Reserve. Further, if he had gone to
Thiele Reserve, he would not have been swimming there. He disliked
swimming alone, and Sturt Reserve was one of his favourite swimming
spots yet he did not swim there that day. It is very unlikely he
would have had a swim in his shorts and it seems he did not take his
swim shorts with him. If he did have a swim at Thiele Reserve, he
would have joined the children he knew there. If, contrary to all the
indications, he went swimming, drowning would be unlikely because he
was a competent swimmer. And, apart from the presence of Michael's
bicycle and belongings, neatly stacked, contrary to his practice,
there is no evidence that he was at that Reserve. No one, including
the boys who were fishing and knew him, saw him there. On top of all
that, there was the failure to discover his body in the area, despite
thorough and extensive searches.
68. Once accidental death is put aside, the evidence points
inexorably to abduction as the cause of Michael's disappearance. The
presence of the bicycle and the neatly stacked belongings at Thiele
Reserve strongly suggest that the bicycle and the belongings were
placed there with the intention of laying a false trail in order to
create the impression that Michael drowned at Thiele Reserve. In
addition, Mrs Gould's evidence of hearing the commotion is quite
unexplained except on the hypothesis that Michael was abducted and the
commotion was associated with his abduction.
69. The evidence does not suggest that abduction would have taken
place for any purpose other than sexual purposes. Kidnapping for the
purpose of seeking ransom was not suggested; nor was mindless killing
suggested and it exists only as a mere theoretical possibility.
Abduction for sexual purposes was the most likely reason for any
abduction.
The connection between the H evidence and the offence charged
70. The prosecution case against the appellant based on the Murray
Bridge evidence therefore pointed to abduction for sexual purposes.
That required the presence in the area of a person of the requisite
disposition equipped with the means of effecting an abduction. The
appellant was in the area at the relevant time; on the H evidence, he
was of the requisite disposition; and he had a van which, on the H
evidence (which was not in dispute), was used for just such a purpose
on that occasion. More than that, there was evidence that the
appellant had spoken to Michael on two occasions, patted his dog at
Sturt Reserve, lent him his knife and asked him to put it in the van
at Sturt Reserve. And, on the previous day, the appellant had invited
two other children to accompany him in the van to visit other places in
the vicinity. Furthermore, there was the evidence of his statement to
his former wife after he had been arrested by the police in connection
with the H abduction that he was lonely and had been thinking of "it"
on and off for the past twelve months. In that statement, he said that
he had just driven around and picked up somebody and threw "them" into
the van. In the context in which that statement was made, the
reference to "it" must be understood as a reference to an abduction of
a boy for sexual purposes, the abduction being effected by means of the
van. The reference to the past 12 months extended to the time when the
offence charged was committed. The former wife's evidence, if
accepted, established that, at the time when Michael disappeared, the
appellant was thinking about abducting a boy for sexual purposes. The
H evidence indicated that the appellant was prepared to carry these
thoughts into effect when an opportunity arose. The Murray Bridge
evidence, if accepted, established that such an opportunity arose on 18
January 1989.
Probative force and prejudicial effect
71. Because propensity evidence may well have a prejudicial effect
which is disproportionate to the probative force of that evidence, it
is necessary to maintain an insistence on that evidence having a high
level or degree of cogency in the circumstances of the particular
case. In this context, the reference to prejudicial effect is a
reference to the undue impact, adverse to an accused, that the evidence
may have on the mind of the jury over and above the impact that it
might be expected to have if consideration were confined to its
probative force.
72. Propensity evidence (including evidence of bad disposition and
prior criminality) has always been treated as evidence which has or is
likely to have a prejudicial effect in the sense explained. That is
because the ordinary person naturally (a) thinks that a person who has
an established propensity whenever opportunity arises has therefore
yielded to the propensity in the circumstances of the particular case
and (b) may ignore the possibility that persons of like propensity may
have done the act complained of. Hence, the necessity to find
something in the evidence or in its connection with the events giving
rise to the offences charged which endows it with a high level or
degree of cogency.
73. Often that high level or degree of cogency is found in the
striking similarity, underlying unity or "signature" pattern common to
the incidents disclosed by the totality of the evidence. So, in the
present case, had the prosecution case been based on direct evidence
of abduction of Michael for sexual purposes by means of inveigling him
into a van, there would have been, in our view, no doubt about the
admissibility of the H evidence. The pattern of similarity,
underlying unity or "signature" common to both incidents would have
resulted in such a degree of cogency that the probative force of the H
evidence would have outweighed its prejudicial effect, notwithstanding
that there was but one other incident of the kind alleged, that it
occurred virtually 12 months later and that it did not establish that
the appellant intended to kill the boy H.
74. 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.
75. 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.
76. 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 connection 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
connection with the H incident.
77. 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 common sense to reject
the statement made to the appellant's wife and the evidence of the
incident on the basis that it was not admissible.
78. 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. The H evidence
ties in with the prosecution evidence relating to the appellant's
activities in the Murray Bridge area on 17 and 18 January and
indicated, if accepted, that he took the initial steps that the H
evidence instructs us were the steps that he engaged in when he gave
effect to that propensity. Once that evidence is taken into account
and once drowning is excluded (as the jury clearly excluded it) as a
reasonable possibility, there is no reasonable hypothesis that
explains Michael's death in a way other than that contended for by the
prosecution. In other words, there is no reasonable view of the
evidence which is consistent with the appellant's innocence.
79. In reaching that conclusion, we have taken account of three
matters which have been, or could be, relied upon to sustain a
contrary conclusion. First, there is the argument that, as the H
incident involved abduction and sexual abuse but not murder, it cannot
fall into the category of acceptable propensity or similar fact
evidence. The H evidence is equivocal on the score of propensity to
murder. That evidence does not deny the existence of such a
propensity. The dropping of the bicycle at the clifftop, after first
wiping it with a cloth, may indicate an intention to fabricate an
accident. But, in any event, for the reasons already given, the H
evidence is cogent and its probative force outweighs its prejudicial
effect.
80. The second matter is that the H incident occurred after
Michael's disappearance. But it does not matter whether similar facts
occurred earlier or latera (51 Thompson v. The Queen [1989] HCA 30; (1989) 169 CLR 1).
The third matter is the possibility that, despite the trial judge'sinstruction to the jury against using the H evidence to decide whether
81. The appeal must be dismissed.
TOOHEY J The appellant was convicted of the murder of Michael
Black, aged ten, on about 18 January 1989. His appeal to this Court is
from the judgment of the Court of Criminal Appeal of South Australia
dismissing his appeal against that conviction.
2. The appeal turns on the admissibility at his trial of evidence
of events which took place in December 1989, that is, nearly one year
after the date of the alleged murder. Those events, involving a boy
of thirteen, led to the appellant's conviction, following pleas of
guilty, for the offences of false imprisonment, rape, indecent assault
and abduction. For those offences he was sentenced to imprisonment for
15 years, with a non-parole period of 13 years. The events were
referred to in the courts below by reference to the name of the boy
involved. To preserve his anonymity, I shall refer to those events as
the H incident and the evidence relating thereto as the H evidence.
Events at the reserves
3. To understand how and on what basis the H evidence was admitted
on the trial of the appellant, it is necessary to refer in some detail
to the events of 18 January 1989.
4. Michael Black lived at Murray Bridge, a country town south east
of Adelaide. On the day in question he left home at about 1 p.m. to
go fishing. He rode his bicycle, taking with him a fishing rod and
canvas bag. He was wearing a red and blue striped cotton knit shirt,
shorts and blue thongs. He did not carry bathers. He may have been
wearing bathers instead of underpants but this is unlikely. He had no
towel. He was accompanied by the family dog, a red heeler.
5. At about 1.30 p.m. he arrived at Sturt Reserve. The reserve is
on the town side of the Murray River. It is an area of lawn running
down to the river bank. There is a large rowing boat shed, shelter
sheds, a wharf for pleasure boats, swings, barbecue facilities and a
mobile kiosk where light refreshments are sold. Michael was seen by a
number of people at Sturt Reserve up until nearly 3 p.m. He was not
seen again after 3 p.m. that day; his body has never been found.
6. The story then moves to Thiele Reserve which is up river from
Sturt Reserve and on the other side of the river. Later on the
afternoon of 18 January Michael's bicycle, fishing rod, bag and thongs
were found neatly stacked against some railings at Thiele Reserve.
His shirt was found in some willows growing on the bank of the river at
the up-stream end of the reserve. Nearby was a piece of twine tied to
a tree stump. In his judgment in the Court of Criminal Appeal Mohr J
said: "It was assumed that Black's dog had been tied with it." The
basis for that assumption is that Michael's father found twine still
attached to the dog's collar at about the length the dog would have
chewed it through.
7. When Michael did not return home, his father reported the matter
to the police. Police divers carried out an extensive underwater
search of the river bottom at Thiele Reserve and among the willows
growing on the bank at either end of the reserve. A visual search was
not possible; the divers operated by touch. The divers gave evidence
that there was only a remote possibility they would have failed to
find a body. As well, there was evidence that over 24 years there had
been 137 police operations to recover dead bodies from inland waters
in South Australia and, the present case apart, there was only one
occasion when they had failed to recover the body. That occasion was
during flood conditions. The jury were entitled to conclude that
there was no body to be found in the river and such a conclusion was
not seriously challenged. An extensive land search was undertaken and
unofficial searches were made of the river and its banks. All to no
avail.
8. At his trial the appellant's counsel conceded that there were
only two explanations for Michael's disappearance. Either he drowned
or he was abducted. Michael's mother, who was separated from his
father, said that she spoke to the boy by telephone on the morning of
the day he disappeared and that he said he was going swimming. The
presence of the bicycle and other items, in particular the shirt in
the willows, it was said, pointed to the possibility that Michael had
gone for a swim among the willows although a short distance downstream
there was a sandy beach. However, there were factors pointing against
the likelihood that he went for a swim at Thiele Reserve. No one saw
him at the reserve, including two boys known to Michael who were
fishing there. Michael's father gave evidence that the boy disliked
swimming in underpants although he said, in cross-examination, that if
Michael wanted to swim he would if necessary swim in shorts and
underpants. If he had been wearing bathers, one would have expected to
find his shorts and underpants at the scene. Mr Black also said that
his son did not like Thiele Reserve and was unlikely to have gone
there.
9. There was a shrimp pot suspended from the willows near where the
shirt was found. The defence advanced a theory that Michael may have
tried to recover the pot and fallen into the river. The theory did
not explain why Michael would have taken off his shirt to recover the
pot. More importantly, it did not explain why his body was not found.
10. In these circumstances the Crown invited the jury to conclude
that Michael did not drown and that he did not leave Sturt Reserve of
his own volition. Such a conclusion would inevitably require a
finding that the items found at Thiele Reserve were placed there by
Michael's abductor to lay a false trail by creating the impression that
Michael had gone to the reserve and had drowned there.
11. Against this background it is necessary to look at the movements
of Michael and the appellant at relevant times. The appellant's
former wife said that he left home on 17 January, driving his white
Kombi van. The van was fitted out with radio and television and had
sleeping and cooking facilities. Mr Smart gave evidence that he spoke
to the appellant at Sturt Reserve at about 4 p.m. on 17 January. He
identified the appellant from photographs and in court. The appellant
asked him if there was somewhere he could swim in the nude as he had
no bathers. Mr Smart directed him to Thiele Reserve. Shortly after,
the appellant joined two children, Christian and Chelsea Haebich, who
were swimming from the wharf at Sturt Reserve. He asked them if they
knew of any places of interest he could visit. He suggested that if
they knew of such places they could accompany him in his van. They did
not go to the van. The children identified the man they had spoken to
as the appellant in court.
12. On the following day, the day of Michael's disappearance, the
appellant was observed at Sturt Reserve by Mrs Rooke who saw him
sitting in his van watching her and the two children in her care. By
his own account he went to the kiosk where he spoke to some children
who were short of money. He offered to make up the shortfall for
their purchases. Early that afternoon Michael was served at the kiosk
several times by Miss Giles who knew him. The first time was about 2
p.m. She estimated his last visit as close to 3 p.m. But, to some
extent, that estimate was based on the first time she saw Michael,
which she later said may have been earlier than 2 p.m. Miss Giles
said that when she finished work shortly after 3 p.m. she noticed that
Michael was no longer at the river. Mrs Regnier was also working at
the kiosk that day. She served Michael a packet of crisps at about 2
p.m. At about 2.25 p.m. Mr Haines saw a man speaking to Michael.
This was the last firm sighting of Michael (52 There was evidence from
Byron Dreschler, who was 15 years of age at the time. At one stage he
thought that he had seen Michael riding across the bridge from Sturt
Reserve at about 2.10 p.m. on 18 January. There was however other
evidence that any such sighting by Dreschler could not have been later
than 1.22 p.m. on that day and, in evidence, Dreschler conceded that
his earlier belief as to the time he saw Michael must have been
mistaken) . Mr Haines described the man as about 5' 10", 5' 11", of
light build, clear complexion, dark brown hair and about 40 years of
age. He could not recall any facial hair. This description generally
fitted the appellant except that he had a neat moustache. Also, it
must be said, Mr Haines described the man as neatly dressed, in "normal
business trousers and a shirt". Other evidence suggested that the
appellant was wearing a dark tracksuit with matching top or jeans. The
man seen was not known to Mr Haines who had lived in Murray Bridge for
25 years. At about 2.45 p.m. Mr Toogood, a council employee, saw a
white van leaving Sturt Reserve at an unsafe speed and travelling
towards the main street of the town. This would have taken the van to
a position where it could have crossed a bridge to the south of the
river where Thiele Reserve is located.
13. Is there any evidence which places the appellant at Thiele
Reserve on the afternoon of 18 January? Mrs Gould lived in a house
overlooking the reserve. Between 3 p.m. and 3.30 p.m. she heard a
"commotion" coming from the reserve, what sounded like a vehicle with
a loud engine with its wheels spinning in gravel, and the sound of a
dog barking excitedly. Much later Mrs Gould took part in a police test
in which, out of her sight, eight vehicles, including the appellant's,
were driven past. The appellant's vehicle was driven past twice. The
other vehicles were driven past once. Mrs Gould identified the sound
of the appellant's vehicle as similar to that she heard on 18 January.
The admissibility of that evidence was challenged but it was admitted
by the trial judge. However, he said to the jury:
"I think you might be best advised to put the sound test itself to one
side in so far as it purports to identify the sound as very similar to
the accused's van. If you think you can rely on Mrs. Gould's memory
and description, confine yourselves simply to her description of what
she heard on the Wednesday itself, a noisy engine, a sort of rattling
chugging noise, with an uneven beat".
Mr Jones gave evidence that he went to Thiele Reserve to go water
skiing on 18 January at about 4 p.m. He saw a Kombi van matching the
description of the appellant's van on the opposite side of a road
running almost parallel to the river bank. It was in the near
vicinity of where Michael's bicycle and gear were found. However, the
trial judge commented to the jury that his evidence was confused and
they might think it better to put the evidence to one side. Another
witness, Mr Martin, saw a man at Thiele Reserve at about 4 p.m. on the
day in question. He appeared to be a "loner" and was neatly dressed,
wearing trousers and a shirt.
14. The appellant's daughter Petra testified that on one occasion
the appellant told her he had seen Michael twice on that day and on
another occasion he told her that he had loaned the boy a knife to
scale a fish. Michael brought back the knife and put it in the van.
Dianne Davis, a friend of the appellant, and her sister Nicole gave
evidence that as part of a general conversation whilst they were
watching a news item on the disappearance of Michael Black, the
appellant had mentioned that he had seen and talked to Michael, patted
his dog and loaned him a fishing knife to untangle a line.
15. Thus there was evidence that the appellant was at Sturt Reserve
at a time when Michael was there, that he spoke to Michael and that he
left the reserve at about the time Michael was last seen there. A
vehicle, which the jury were entitled to find matched the sound of the
appellant's van, was heard at Thiele Reserve shortly after the time
when the so-called false trail was laid. The appellant's movements
are thereafter unaccounted for by witnesses until he arrived home on
20 January.
The appellant's evidence
16. The appellant gave evidence at his trial. He admitted speaking
to Mr Smart at Sturt Reserve on 17 January, though he denied asking
about nude swimming or being given directions to Thiele Reserve. He
admitted swimming with the Haebich children. He said he spent the
night at Sturt Reserve though around midnight there was a disturbance
which prompted him to cross to the other side of the river for a time.
17. As to 18 January, the appellant said that he believed he saw
Michael Black at Sturt Reserve though he could not be exact about the
time. Michael had a large fish which he was beating with a thong. He
gave Michael a knife from the van, telling him how to kill the fish.
Michael returned the knife. The appellant said: "Just put it back in
the van." There was some conversation between them as to whether the
television broadcast of cricket had started. He left Sturt Reserve at
a time "probably after 2 but before 2.30". He said that he did not go
to Thiele Reserve that day or on any other day until an Easter canoe
trip with friends, though it was put to him in cross-examination that
his former wife gave evidence that they went to Thiele Reserve about a
week after 18 January. After he left Sturt Reserve, the appellant
said, he stopped at a butcher's shop in the main street. He later
drove down a dead end road where he spoke to a farmer. The farmer was
not identified or called as a witness. Thereafter he drove to several
towns, camping both nights in his van, before returning home on 20
January.
A false trail?
18. The Crown case involved the proposition that whoever abducted
Michael Black drove to Thiele Reserve with Michael's belongings (and
presumably Michael). Michael's dog was later found running free with
twine around its neck. On the case as advanced, the dog may have been
taken to Thiele Reserve where it later broke free or the twine found
there may have been intended to suggest that the dog had been taken
there by Michael. In any event, the proposition necessitated the
abductor placing the bicycle, the fishing rod, the haversack and
thongs against a wooden fence near the toilet block and taking the
boy's shirt (and perhaps the dog) to the river bank.
19. This scenario required a conclusion that Michael did not go
voluntarily to Thiele Reserve on the day in question. No-one saw him
there. He had been told not to go there by his parents and he did not
like the place. The last time he was seen was at Sturt Reserve, no
later than 3.00 p.m. The only explanation for his disappearance was
drowning or abduction. The evidence was strongly against drowning.
If he was abducted, it is most likely to have been from Sturt Reserve.
In that event the placing of his bicycle, clothing and other items at
Thiele Reserve must have been by his abductor and have been done to
lay a false trail, pointing to the boy's disappearance from Thiele
Reserve.
The H evidence
20. Against this background the Crown sought to call the boy H to
give evidence of those events in December 1989 which led to the
appellant's conviction on four serious charges. The application was
opposed by the defence but was acceded to by the trial judge after a
lengthy voir dire hearing.
21. The evidence of H was that the appellant, using the same Kombi
van, abducted him at Port Noarlunga South. H, who had been riding his
bicycle, was persuaded by the appellant to get into the van to look
for some keys. The appellant pushed him to a seat, threatened him not
to "try anything" and retrieved the bicycle, placing it in the van.
The appellant tied up H with tape, blindfolded him and placed a sock in
his mouth. He then drove the van some distance from the place of
abduction. H had mentioned that the bicycle belonged to a friend and
he wanted him to have it back, adding: "just put it somewhere safe".
After driving some distance the appellant stopped the van, wiped the
bicycle for fingerprints and left it in the bush, near a path at the
top of a cliff. The appellant eventually drove to his home where he
was living alone and kept H overnight, during which time he sexually
assaulted him more than once. The boy escaped the next day.
22. The appellant's former wife testified that when she asked him
why he abducted H, the appellant said: "I was lonely. I'd been
thinking about it on and off for the past twelve months" or words to
that effect. This conversation took place when the appellant
telephoned her from the Christies Beach police station after his
arrest. He also said: "I just drove around and found somebody and
threw them in the van." In answer to his wife's question: "Did you
tie them up?", he said: "Yes". The reference to "the past twelve
months" has an obvious significance, though the appellant offered an
explanation in cross-examination that he was referring to the period
he and his wife had been separated.
23. Although the H incident occurred nearly twelve months after 18
January 1989, that of itself is no bar to admissibility of evidence if
the evidence is otherwise admissible in accordance with rules relating
to similar fact evidence or the like (53 Thompson v. The Queen [1989] HCA 30; (1989)
169 CLR 1; Reg. v. Morris (1969) 54 Cr App R 69) . The appellant did
not argue otherwise.
The relevance of the H evidence
24. In order to determine the admissibility of the H incident, it is
first necessary to consider where the Crown case stood, absent that
evidence. It is of particular importance in the present case because
one of the appellant's complaints, perhaps the principal complaint, is
that the evidence pointing to abduction and murder was at best
equivocal but that the H incident might readily lead the jury to
conclude that there had been an abduction, not just to conclude that
the appellant was the abductor in an otherwise proven case of
abduction.
25. Any discussion of this aspect of the appeal begins with a
concession made by counsel at trial that "abduction is the only
rational alternative to drowning". As Legoe J said in the course of
his judgment in the Court of Criminal Appeal: "On the evidence I
would think that such a concession was inevitable." There was more
than sufficient evidence for the jury to conclude that Michael was
abducted from Sturt Reserve. And, at the time of the appellant's trial
in May 1992, the jury were certainly entitled to conclude that he had
been murdered. Indeed, once they concluded that there had been an
abduction, a finding that the boy had been murdered was inevitable.
26. There can be no doubt as to how his Honour saw the relevance of
the H evidence. In the course of ruling that the evidence was
admissible, he said:
"The (H) evidence shows not merely that the accused was of homosexual
orientation but that he had a disposition for young boys and was
willing to pursue it by the extreme means of kidnapping and rape. He
had with him at Murray Bridge on January 18 the van that he used a
year later when he abducted (H). He had the opportunity to abduct
Michael Black. The relevance of his criminal propensity to the
question whether he was Michael Black's abductor is obvious".
Later in his ruling his Honour said:
"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."
27. The trial judge saw the situation as "fundamentally a case about
improbabilities, sufficiently strong to compel a factual conclusion
adverse to the accused". He said that "the very unusual type of crime
in this case itself provides, exceptionally, a sufficient 'similar
fact' which, coupled with the other linking factors to which I have
referred, justifies the admission of the propensity evidence".
28. While the ruling that the H evidence was admissible was at the
forefront of the appellant's attack, it is also necessary to look at
the use the jury were invited to make of the evidence. The appellant
argued that the evidence must inevitably have led to a greater
readiness on the part of the jury to conclude that Michael was
abducted and murdered. And this, notwithstanding that the trial judge
more than once cautioned the jury against using the evidence for that
purpose. For instance, his Honour said in the course of summing up:
" So the Crown's case moves, as it were, from a rejection of drowning
to positive evidence of an abduction. That, in outline, is the
Crown's evidence - as I understand it - on the primary and essential
question whether it has been proved to your satisfaction that Michael
Black was abducted. In forming any judgment about that matter, you
must confine your attention to the Murray Bridge evidence. That means
that you cannot have any regard to the evidence relating to (H) on that
issue.
29. The (H) evidence is relevant, at the most, to the question of
any abductor's identity. It may not be used to resolve any doubts you
might have on the question whether there was an abduction at all. For
that, I say again, you must have regard only to the Murray Bridge
evidence and put the (H) matter completely out of your minds. I
cannot emphasize that too strongly. If the Murray Bridge evidence does
not satisfy you that Michael Black was abducted and murdered, you must
find the accused not guilty".
30. Later in his directions the trial judge again emphasised that
the jury could not use the H evidence unless they were first satisfied
"that Michael Black was, in fact, abducted and murdered by some one".
Still later he asked the jury to remember "the way in which you may
and the way in which you may not use the (H) evidence, and I shan't go
over all that again".
31. The argument as to the admissibility of the H evidence wears two
faces. If the evidence was inadmissible on any count, the appeal must
be upheld because the evidence undoubtedly played an important, if not
crucial, part in the conviction of the appellant. On the other hand,
the evidence may have been admissible for a particular purpose; in
that event a further question arises as to whether the trial judge's
directions in regard to the use the jury might make of the evidence
were accurate and comprehensive. However the two aspects are not
entirely discrete; they impinge on each other.
32. Reference has been made already to the trial judge's directions
to the jury as to how they must not use the H evidence. But what did
his Honour say as to the use the jury might make of it? He began by
saying:
"If you are satisfied that there was an abduction and a murder, you
may take the (H) evidence into account with the other evidence on the
question whether the accused had been proved to have been the person
responsible."
His Honour then put to the jury that the Crown had pointed to "the
unusual type of crime that was committed in this case - the abduction
and murder of a 10-year-old boy, presumably for sexual purposes". He
continued:
"What the Crown does say, however, is that the (H) evidence shows that
the accused has a disposition to abduct and sexually assault young
boys and that this and all the other circumstantial evidence proves
that he was Michael Black's abductor."
33. While not telling the jury whether they should accept or reject
the Crown's submission, the trial judge put to them the Crown case
that if the appellant was not the abductor there must have been two
persons at Murray Bridge about the same time on the afternoon Michael
disappeared, "each with a propensity to kidnap and sexually assault
young boys and each having the physical means that afternoon of doing
so". He added: "The Crown says that it is an affront to commonsense
to postulate such a possibility. It stretches coincidence to breaking
point." Expressed as they were, these remarks may have tended to
suggest that the Crown's argument had his Honour's endorsement. But
later he said:
"You are entitled to use your own general knowledge about human
behaviour, as well as your assessment of the accused himself, in
drawing any conclusion as to whether the (H) evidence establishes that
the accused had such a propensity towards young boys and with a
willingness to abduct and assault; and also that he had the same
propensity 12 months earlier, because that is the critical time, so
far as this case is concerned."
34. If the evidence was admissible, I do not think that the
appellant has a legitimate complaint that the jury may have been
misled into using the evidence to reach a conclusion that Michael was
abducted and murdered. In the light of the trial judge's directions,
unless it be assumed that the jury were unable to comprehend the
warning about using the H evidence or perversely ignored it, this
aspect of the appellant's argument must fail. There is no reason to
conclude that the jury lacked understanding or were perverse.
Admissibility of propensity or similar fact evidence
35. It is appropriate now to look at the principles which govern the
admissibility of evidence such as that of the H incident. Counsel
used the terms "similar fact" and "propensity" when referring to the
evidence and the use made of it by the trial judge. These terms tend
to obscure exactly what is at issue. Since most of the argument in
this Court was in terms of the admissibility of the H evidence to
establish a propensity in the appellant to abduct young boys, it is
convenient to speak at this stage of propensity evidence. Later it
will become necessary to refer to similar fact evidence and their
relationship.
36. A convenient starting point is a passage from the judgment of
Dawson and Gaudron JJ in B v. The Queen (54 [1992] HCA 68; (1992) 175 CLR 599 at
617-618) :
" Evidence that an accused has committed offences other than those
with which he is charged ought not be admitted if it tends to show only
that the accused has a propensity or disposition to commit criminal
offences of a particular type or generally. If a propensity or
disposition of that kind is all that the evidence tends to show, then
its prejudicial nature must be greater than any relevance which it
might have. To admit such evidence would be to invite the jury to
proceed upon prejudice or suspicion rather than proof. But if the
evidence of other offences goes beyond showing a mere propensity or
disposition to commit crime or a particular type of crime and points in
some other way to the commission of the offences in question, then it
will be admissible if its probative value for that purpose outweighs
its prejudicial effect. That is not to say that it may not still be
evidence of propensity or disposition, but it will then be evidence of
propensity or disposition of a particular kind which in the
circumstances has a degree of relevance justifying its admission."
37. Expressed in that way, the principle accepts that evidence of
other offences is not irrelevant. Indeed, in a passage in his
judgment in Harriman v. The Queen (55 [1989] HCA 50; (1989) 167 CLR 590) cited by
Dawson and Gaudron JJ in B v. The Queen, Dawson J said (56 ibid. at
597) :
"When a person is charged with a criminal offence, evidence is
ordinarily inadmissible that he has on other occasions been guilty of
behaviour indicating a criminal disposition. This is not because the
evidence is irrelevant. On the contrary, it is excluded because a
jury is likely to regard it as proving too much and is for that reason
likely to proceed upon prejudice rather than proof."
38. The respondent relied on this approach to support the argument
that evidence which discloses a propensity to offend is prima facie
admissible unless the prejudicial effect of the evidence outweighs its
probative effect. However, an approach which assumes the
admissibility of evidence of other offences but measures the probative
force of the evidence against the prejudice it is likely to generate
tends to by-pass the basic question of whether and why the evidence is
admissible at all. Propensity evidence necessarily involves the use
of character against the appellant. As Wigmore has observed (57
Wigmore on Evidence, Tillers Revision (1983), vol.1A, 55) :
"The evidentiary use of character for or against a defendant in a
criminal case cannot be understood without separating the principles
of relevancy and of undue prejudice."
Evidence of other offences is circumstantial (58 Hoch v. The Queen
[1988] HCA 50; (1988) 165 CLR 292 at 296) ; the first inquiry must be whether it is
relevant. If it is not, the evidence is simply inadmissible. If it is
relevant, it may still be rejected by reference to some principle of
exclusion, generally by reason of undue prejudice to the defendant.
39. A well-known example of a situation where evidence of propensity
was admitted because it was relevant to an issue, without relying upon
any special test, is Makin v. Attorney-General for New South Wales (59
(1894) AC 57) . The appellants were convicted of the wilful murder of
a child they had received from the child's mother on representations as
to their willingness to adopt it and upon payment of a sum inadequate
for its support for more than a very limited period. The body of the
child was found buried in the garden of a house occupied by the
appellants. Evidence that several other infants had been received by
the appellants on like representations and on like terms and that their
bodies had been found buried in a similar manner in the gardens of
several houses occupied by them was held admissible.
40. The judgment of the Privy Council was delivered by Lord
Herschell LC, who said (60 ibid. at 68) that the evidence was not
"irrelevant to the issue to be tried by the jury". The judgment does
not elaborate on the point but earlier (61 ibid. at 65) there appears
this passage:
"On the other hand, the mere fact that the evidence adduced tends to
shew 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."
In those situations the evidence is admissible simply because it is
relevant to an issue to be tried. Its relevance derives from "the
statistical improbability that a number of children which the Makins
have at various times had in their care would all have died of natural
causes. From this it followed that they were likely to have been
murdered" (62 Hoffman, "Similar Facts After Boardman", (1975) 91 Law
Quarterly Review 193 at 199) .
41. What if the evidence does no more than show a propensity to
commit criminal offences or criminal offences of a particular
character or, it may be, to engage in conduct that is blameworthy but
falls short of a criminal offence? The principle, as stated in Makin,
begins with a rule of exclusion (63 (1894) AC at 65) :
"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."
But this exclusionary rule is followed by the passage quoted earlier
in this judgment which expresses an inclusionary rule, based on
relevance. This has the effect of negating the exclusionary rule
because, if the evidence is relevant, it is admissible.
42. Zuckerman (64 Zuckerman, The Principles of Criminal Evidence,
(1989) at 224-225) argues, with great force, that there is a fallacy
involved in the inclusionary exclusionary distinction, illustrated by
Thompson v. The King (65 (1918) AC 221) . The accused was charged
with acts of indecency on two boys. The boys testified to the acts and
also to an arrangement to meet them again later. The accused turned up
at the appointed time but, suspecting that police were present, gave
the boys money and told them to go away. He was arrested after trying
to escape. At his trial he denied any prior acquaintance with the
boys. The prosecution was allowed to adduce evidence of articles found
in his possession and, on appeal to the House of Lords, the evidence
was held admissible, even though it showed a disposition towards
homosexuality on the part of the accused, because it was relevant to an
issue in the case. As Zuckerman observes, the issue was variously
identified in the judgments as the credibility of the boys, identity
and intention, and the accused's "identifying mark". Yet, in truth, it
was the accused's disposition which was regarded as throwing light on
the issue, however that issue was described.
43. In Reg. v. Boardman (66 (1975) AC 421) the accused, who was the
headmaster of a boarding school for boys, was charged with sexual
offences against two pupils. The House of Lords upheld the trial
judge's ruling that the evidence of each boy was admissible as
corroborative evidence in relation to the count against the other.
There was a "striking similarity" and "underlying unity" in the
evidence of both boys which gave it the necessary probative force to
justify its admission. Lord Hailsham of St Marylebone said that two
theories had been advanced to explain Lord Herschell's general rule of
exclusion and that "both have respectable judicial support" (67 ibid.
at 452) . The first theory is that the evidence is simply irrelevant,
on the basis that no number of similar offences can connect a
particular person with a particular crime. The second is that the
prejudice created by the admission of such evidence outweighs any
probative value it may have. Lord Hailsham's view was that "both
theories are correct". But the second theory can only stand with the
first on the footing that, in a particular case, the evidence may have
some probative force. The question then arises: in what
circumstances will such evidence have probative force? It will be
remembered that Lord Herschell said that the mere fact that the
evidence adduced tends to show the commission of other crimes does not
by itself render the evidence inadmissible "if it is relevant to an
issue before the jury", for instance where there is a question whether
the acts alleged to constitute the crime were designed or accidental.
Lord Hailsham regarded these instances as an "independent proposition".
But if it is an independent proposition, not an exception grafted on
to the initial rule, it is hard to know in what other circumstances the
evidence will have probative force.
44. In D.P.P. v. P (68 (1991) 2 AC 447) the accused was charged with
rape and incest against each of his two daughters. The trial judge
admitted evidence of an offence against one daughter in relation to the
counts against the other. The admissibility of the evidence was
affirmed by the House of Lords in a judgment delivered by Lord Mackay
of Clashfern LC with which the other Law Lords agreed. Referring to
Boardman his Lordship said (69 ibid. at 460) that "it is not
appropriate to single out 'striking similarity' as an essential element
in every case in allowing evidence of an offence against one victim to
be heard in connection with an allegation against another". He went on
(70 ibid. at 462) :
"I consider that the judge must first decide whether there is material
upon which the jury would be entitled to conclude that the evidence of
one victim, about what occurred to that victim, is so related to the
evidence given by another victim, about what happened to that other
victim, that the evidence of the first victim provides strong enough
support for the evidence of the second victim to make it just to admit
it notwithstanding the prejudicial effect of admitting the evidence.
This relationship, from which support is derived, may take many forms
and while these forms may include 'striking similarity' in the manner
in which the crime is committed, consisting of unusual characteristics
in its execution the necessary relationship is by no means confined to
such circumstances".
45. In the present case evidence of the commission of other offences
was not led to rebut a defence of accident or the like. There was a
complete denial by the appellant of any unlawful conduct in relation
to Michael Black. If the evidence was admissible, its relevance could
only be because it served to identify the appellant as the person who,
on other evidence, the jury could reasonably conclude abducted the boy
and murdered him. One thing is clear (71 Morris v. The Queen (1983) 1
DLR (4th) 385 at 394 per Lamer J) :
"(T)he fact that the accused is the sort of person who would be likely
to have committed the offence, though relevant, is not admissible. As
a result, evidence adduced solely for the purpose of proving
disposition is itself inadmissible, or, to put it otherwise, evidence
the sole relevancy of which to the crime committed is through proof of
disposition, is inadmissible".
46. What then is the relationship of propensity to similar facts?
It is in this regard that some of the uncertainty that has bedevilled
this area of the law has arisen. Cross on Evidence (72 Aust. ed.,
vol.1, Ch.11, par.21030) discusses "Relevance via disposition" in the
chapter "Similar Fact Evidence". And that approach is supported by
authority. In Markby v. The Queen (73 [1978] HCA 29; (1978) 140 CLR 108 at 116)
Gibbs ACJ, in a judgment with which Stephen, Jacobs and Aickin JJ
concurred, said:
"The first principle, which is fundamental, is that the evidence of
similar facts is not admissible if it shows only that the accused had
a propensity or disposition to commit crime, or crime of a particular
kind, or that he was the sort of person likely to commit the crime
charged."
Gibbs ACJ reinforced this principle by adding:
"The second principle, which is a corollary of the first, is that the
evidence is admissible if it is relevant in some other way, that is,
if it tends to show that he is guilty of the crime charged for some
reason other than that he has committed crimes in the past or has a
criminal disposition."
That second principle inevitably invites the question: in what
circumstances does such evidence tend to show guilt other than in
terms of propensity? Deane J offered a test in Sutton v. The Queen
(74 [1984] HCA 5; (1984) 152 CLR 528 at 557) :
"On the other hand, if the similarities between offences which the
accused undoubtedly committed and the offence with which he is charged
are such as to warrant, in the context of all the evidence, the
conclusion that, in the absence of extraordinary co-incidence, the
same person committed all offences ... the 'similar fact evidence'
will, in the context of the evidence as a whole, have probative force
on the question whether the accused committed the offence with which he
is charged which is distinct from its prejudicial tendency as evidence
of mere propensity."
What was said by Gibbs ACJ and Deane J does place propensity
evidence within the area of similar fact evidence. And, in terms of
admissibility, that is an appropriate place so long as the focus of
inquiry is on the relationship between the evidence in question. As
was said earlier, there was a complete denial by the appellant of any
unlawful conduct in relation to Michael Black. Since there was only
one charge, there was no question of relying upon the H evidence and
the evidence relating to Michael to support each other, as in
Boardman. It was the appellant's role in the later incident which was
used as evidence of his role in the earlier one.
47. To deal with evidence of similar facts (including propensity) on
the footing that the evidence is admissible if its probative force
outweighs its prejudicial effect is, I think, to beg the question
unless it be accepted that such evidence is always relevant. The
preferable approach is indicated by the judgment of Mason CJ, Wilson
and Gaudron JJ in Hoch v. The Queen (75 [1988] HCA 50; (1988) 165 CLR 292 at 294) :
" The basis for the admission of similar fact evidence lies in its
possessing a particular probative value or cogency by reason that it
reveals a pattern of activity such that, if accepted, it bears no
reasonable explanation other than the inculpation of the accused
person in the offence charged."
Their Honours went on to point out (76 ibid. at 294-295) that the
strength of the probative force of the evidence:
"lies in the fact that it reveals 'striking similarities', 'unusual
features', 'underlying unity', 'system' or 'pattern' such that it
raises, as a matter of common sense and experience, the objective
improbability of some event having occurred other than as alleged by
the prosecution".
While that passage refers to "striking similarities" and the like, its
emphasis is on the relationship between the evidence and on the
improbability which follows from that relationship. Although the
language used is not identical with that in D.P.P. v. P, there is a
consistency of approach in the two judgments.
48. It is important, in my view, that the admissibility of evidence
of other offences be tested against the criterion identified in Hoch,
read in the light of D.P.P. v. P An approach in terms only of
probative force outweighing prejudicial effect leaves too many
questions unanswered. In that connection it should be said that
Harriman v. The Queen (77 [1989] HCA 50; (1989) 167 CLR 590), which is sometimes
referred to in this context, was not truly a decision on similar fact
or propensity evidence. The evidence in question was admissible for
the light it threw on an association between the accused and another
man. This was directly relevant to the primary issue raised by the
indictment, whether the accused was "knowingly concerned" in the
importation of heroin. Likewise, S v. The Queen (78 (1989) 168 CLR
266), which is sometimes mentioned in the same context, is not truly a
case of similar fact or propensity evidence.
49. The judgment of Mason CJ, Wilson and Gaudron JJ in Hoch
identifies the basis upon which evidence of similar facts is admitted.
"The criterion of its admissibility is the strength of its probative
force." (79 (1988) 165 CLR at 294) However, it remains with the
trial judge to consider the prejudicial effect of the evidence and
whether, in the circumstances, it is just to admit it. That is not
precisely the same as saying that the evidence is admissible if its
probative force exceeds its prejudicial effect. The probative force of
the evidence, in accordance with the criterion discussed, is the basis
for its admissibility; nevertheless, the trial judge may exclude it.
Evidence that an accused has committed other relevant offences must
inevitably have a prejudicial effect. But, in the language of D.P.P.
v. P, it may nevertheless be "just" to admit the evidence. The
reference to just aptly conveys the notion that it is not only the
interests of the accused that are involved. The legitimate interests
of the Crown and of the community cannot be overlooked (80 There is in
any event a discretion in a trial judge to reject evidence where its
prejudicial effect outweighs its probative value, in order to secure a
fair trial for the accused: Harriman (1989) 167 CLR at 594, 608, 633;
Reg. v. Sang [1979] UKHL 3; (1980) AC 402 at 437) . The admissibility of the H
incident depends upon it possessing those features identified in Hoch.
Unless it does, the evidence is not admissible. If it does, the
evidence may be admitted notwithstanding its prejudicial effect if the
trial judge considers it just to admit the evidence.
The admissibility of the H evidence
50. It is important to say again that if the evidence of the H
incident is admissible, it is on the footing that other evidence
justified a conclusion by the jury that Michael Black had been
abducted from Sturt Reserve and later murdered. Other evidence did
justify that conclusion, for the reasons already given. Consistent
with authority, the question then is whether the H evidence revealed
sufficient similarities with the evidence surrounding Michael's
abduction so as to raise, as a matter of commonsense and experience,
the objective improbability of someone other than the appellant, on the
day and about the time in question, abducting Michael from Sturt
Reserve.
51. The respondent points to a number of features of the H incident.
H was 13 years and 3 months when abducted by the appellant. He was
lured by a ruse into the appellant's Kombi van. Once he was in the
vehicle, the appellant threatened him, retrieved the boy's bicycle,
bound and gagged him and drove away. An hour or so later the
appellant placed the bicycle on the top of cliffs at Port Noarlunga
South and took the boy to his (the appellant's) home that night. H
escaped from the house at about midday on the following day. The
purpose of the abduction was the appellant's sexual gratification.
52. Once the jury concluded (as they were entitled to) that Michael
Black had been abducted, it was apparent that the abductor was a
person who was at Sturt Reserve around 2.30 p.m. on 18 January 1989.
The appellant was such a person. Indeed he gave evidence that he had
spoken to Michael just before he left Sturt Reserve some time between
2.15 p.m. and 2.45 p.m. At his request the boy had been in his van to
return a knife. He was the last person seen talking to the boy and he
was possessed of the means, a van, to effect an abduction at that time
and place. The jury were also entitled to conclude that the purpose
of the abduction was sexual gratification. No ransom was demanded and
there was no suggestion of family discord which might have led to the
abduction. It is true that the abduction might have been for
non-sexual purposes but that was a hypothesis the jury were entitled
to reject in all the circumstances. The appellant was a person who
sought sexual gratification by abducting a young boy on another
occasion and he had done so with the use of his Kombi van.
53. The jury were also entitled to conclude that the abductor had
deliberately tried to mislead by placing Michael's belongings in a
position likely to suggest that he had drowned. The jury were
entitled to conclude furthermore that the appellant had tried to
mislead in the case of H by leaving the boy's bicycle in a position
where it might be thought that he had suffered an accident. Certainly
the appellant gave no real explanation as to why he retrieved H's
bicycle, put it in the van and then deposited it some distance away.
54. It is apparent that the H incident and the circumstances
surrounding Michael's disappearance had a number of features in
common, such as to warrant in the context of all the evidence a
conclusion that the same person was involved in both abductions. There
is a particular feature of Michael's abduction that gives relevance and
persuasiveness to the H incident, namely, that if the appellant was not
the abductor there must have been someone else at Sturt Reserve around
2.30 p.m. on 18 January 1989, possessing a vehicle or some other means
by which the boy could be abducted without any of those present being
aware of what was happening. There is no evidence pointing to the
presence of another such person. This is not so much an aspect of
similar facts as circumstantial evidence which the jury were entitled
to take into account (consistently with the principles enunciated in
Chamberlain v. The Queen (No.2) (81 [1984] HCA 7; (1984) 153 CLR 521) and Shepherd
v. The Queen (82 [1990] HCA 56; (1990) 170 CLR 573) ) along with the H evidence in
reaching a decision as to the guilt of the appellant. All these
considerations justified the trial judge's ruling that the evidence was
admissible.
55. A matter of some moment is the trial judge's references to
"disposition" and "propensity" in his charge to the jury, because of
the emphasis these terms placed on the character of the appellant. At
the same time his Honour linked these terms to what was an integral
part of the Crown case, namely, the similarities in the two abductions
and the improbability that anyone else could have been the abductor of
Michael Black. Taking the directions in their entirety, the jury were
not likely to have been misled by these references.
56. In my view the evidence of the H incident was admissible. No
real attack was made by the appellant on the exercise of a residual
discretion to reject the evidence, as opposed to the admissibility of
the evidence. Once the evidence was admitted, the jury were properly
directed as to the use they could make of it.
57. The appeal should be dismissed.
McHUGH J The question in this appeal is whether, on the trial of
the appellant on a charge of murdering Michael Black, a ten year old
boy, evidence was admissible against him that twelve months after the
alleged murder he abducted and sexually assaulted a thirteen year old
boy. The Crown contends that the proper inference to be drawn from
all the evidence in the case was that Michael Black - whose body has
not been found - was abducted, sexually assaulted and murdered. The
Crown argues that, because the appellant had the opportunity and means
to abduct him on the day that he disappeared, evidence concerning the
subsequent sexual assault was relevant because it proved that the
appellant had a disposition to abduct and sexually assault young boys.
Ms Shaw, counsel for the appellant, denied that evidence of an
accused person's propensity to commit crime was admissible to prove a
criminal charge. She conceded that in some circumstances evidence of
other criminal conduct on the part of an accused was admissible against
that person. But she contended that such evidence was only admissible
if it proved guilt for a reason other than that the accused was a
person who was likely to commit crime or crime of a particular kind.
2. It becomes necessary in this appeal, therefore, to examine once
again the vexed question as to the circumstances in which the
prosecution may prove a criminal charge by tendering evidence that the
accused has engaged in criminal conduct on occasions other than that
which is the subject of the charge before the court.
Outline of the evidence
3. On 18 January 1989, Michael Black rode his BMX bike to Sturt
Reserve, a picnic spot alongside the Murray River at Murray Bridge,
South Australia. He was last seen there in the early afternoon of
that day. The appellant had arrived at Sturt Reserve the previous day
and camped overnight in his Kombi van. On the first day that he was
at Sturt Reserve, the appellant spoke to two children in terms that
invited them to ride in or enter his van. The appellant admitted in
evidence that he had spoken to Michael Black at about 1.30 p.m. on 18
January and lent him a knife to kill a fish. Later that day,
searchers found Michael Black's BMX bike, his fishing rod, some of his
clothes and his dog at Thiele Reserve, which is not far from Sturt
Reserve but is on the opposite side of the Murray River. Sometime
before 3.30 p.m. one witness saw the bike at the place where it was
found. About 3.15 p.m. another witness heard a van, with an engine
noise similar to that of the appellant's van, arrive at Thiele Reserve.
The driver kept the engine running. The witness heard the doors of
the vehicle open and close and the distressed barking of a dog. None
of the people who were at Thiele Reserve that afternoon including two
persons who knew Michael Black recollect seeing him there. There is no
evidence that Michael Black has been seen since he was last seen at
Sturt Reserve (83 Two witnesses gave evidence that they had seen
Michael Black riding his bike across a bridge on the Murray River in a
direction away from Sturt Reserve. The unaided recollection of these
witnesses would have placed the time of this sighting as being after
3.00 p.m. But an examination of a banking transaction that took place
almost immediately after this sighting established that the sighting
must have been before 1.22 p.m) . A search of the Murray River failed
to find his body. Evidence tendered by the Crown suggested that it was
extremely unlikely that Michael Black had drowned.
The evidence of H
4. On Saturday, 30 December 1989, H, a thirteen year old boy, was
riding a BMX bike belonging to a friend along a suburban street in
Port Noarlunga, South Australia when the appellant called out to him.
The appellant asked H to help him get some keys out of a compartment in
his van. H got into the van. While he was looking for the keys, the
appellant "came in behind me and he closed the door ... pushed me
down onto this seat at the back of the van, and ... said, 'Don't try
anything or I'll hurt you'". The appellant then got out of the van
and brought the bike into the van. He tied H 's hands behind his back
and blindfolded him, put a sock in his mouth and taped his mouth and
ankles. After driving for about half an hour, the appellant parked
the van at a car park. While they were there, H told the appellant
that the bike was not his bike and that he wanted him to put it
somewhere safe. H also told the appellant that he had planned to go
swimming that afternoon. Soon after, the appellant drove the van to a
beach where he wiped the bike for fingerprints and put it into a bush
area. After driving for another two hours, the appellant stopped the
van, removed H's shorts and sexually assaulted him. They then drove to
the appellant's house where the appellant untaped H's hands, feet and
ankles. The appellant told H that he would kill him or hurt him
unless H took off his own pants and underpants. The appellant then
again sexually assaulted H. The following morning the appellant tied H
to a chair with rope and put a sock into his mouth. While the
appellant was absent from the house, H got his hands free from the rope
and escaped. The appellant was arrested when he returned to the
house.
5. After his arrest over the H incident, the appellant told his
wife that he had been "thinking" about doing "it" for 12 months and
that he had committed the offence because he was lonely.
Subsequently, he pleaded guilty to a number of offences arising out of
these events and was charged with the murder of Michael Black.
6. It will later be necessary to examine the evidence in relation
to Michael Black's disappearance and the findings of the trial judge
on that evidence. But the above outline of the facts is the foundation
of the Crown case that the appellant abducted Michael Black at Sturt
Reserve for the purpose of sexually assaulting him, murdered him, and
planted a false trail at Thiele Reserve to suggest that Michael Black
had drowned while swimming in the Murray River at that reserve. The
case against the appellant was purely circumstantial. But, without
the evidence concerning the abduction and sexual assault of H, the
Crown did not establish a prima facie case against the appellant.
Thus, the critical question in the appeal is whether the H evidence
was admissible against the appellant. In my opinion it was. However,
my reasons differ from those of the learned trial judge. They also
require that the principles of admissibility formulated in Markby v.
The Queen (84 [1978] HCA 29; (1978) 140 CLR 108) be modified if propensity evidence
is to be admitted in criminal trials.
Evidence of bad character
7. On the trial of a criminal charge, evidence that reveals that
the accused is a person of bad character is not admissible if it
proves no more than that he or she has a general disposition or
propensity to commit crime or crime of a particular kind (85 Makin v.
Attorney-General for New South Wales (1894) AC 57 at 65; Markby (1978)
140 CLR at 116 per Gibbs ACJ with whose judgment Stephen, Jacobs and
Aickin JJ agreed; Perry v. The Queen [1982] HCA 75; (1982) 150 CLR 580 at 585 per
Gibbs CJ, 603 per Wilson J, 609 per Brennan J) . For more than a
century, one of the fundamental theses of the common law has been that
on a criminal charge guilt is not to be "inferred from the character
and tendencies of the accused" (86 Dawson v. The Queen [1961] HCA 74; (1961) 106 CLR
1 at 16 per Dixon CJ) . The character and tendencies of a person are
relevant in determining whether that person has committed the crime
with which he or she is charged (87 per Willes J in Reg. v. Rowton
(1865) Leigh and Ca 520 at 540-541 [1865] EngR 53; (169 ER 1497 at 1506)) . But as a
matter of policy the law generally excludes evidence of other incidents
that reveals the criminal or discreditable propensities of the accused.
Various reasons have been put forward to justify this exclusion. One
reason is that it creates undue suspicion against the accused and
undermines the presumption of innocence (88 Perry (1982) 150 CLR at
593-594 per Murphy J; Reg. v. Boardman (1975) AC 421 at 451 per Lord
Hailsham; Piragoff, Similar Fact Evidence, (1981) at 4) . Another is
that tribunals of fact, particularly juries, tend to assume too readily
that behavioural patterns are constant and that past behaviour is an
accurate guide to contemporary conduct (89 Cowen and Carter, Essays on
the Law of Evidence, (1956) at 144-145; Imwinkelried, "The Use Of
Evidence Of An Accused's Uncharged Misconduct To Prove Mens Rea: The
Doctrines which Threaten to Engulf the Character Evidence Prohibition",
(1990) 51 Ohio State Law Journal 575 at 581-582; Ligertwood, Australian
Evidence, 2nd ed (1993) at 81-82; Palmer, "The Scope of the Similar
Fact Rule", (1994) 16 Adelaide Law Review 161 at 169) . Similarly,
"(c)ommon assumptions about improbability of sequences are often wrong"
(90 Perry (1982) 150 CLR at 594 per Murphy J), and when the accused
is associated with a sequence of deaths, injuries or losses, a jury
may too readily infer that the association "is unlikely to be innocent"
(91 ibid) . Another reason for excluding the evidence is that in many
cases the facts of the other misconduct may cause a jury to be biased
against the accused (92 R. v. Bond (1906) 2 KB 389 at 398 per Kennedy
J; Piragoff, op.cit. at 4-5; Cross on Evidence, 2nd Aust. ed. (1991)
at par.21145; Ligertwood, op.cit. at 81) . In the present case, for
example, once the H evidence was admitted, it would require a
superhuman effort by the jury to regard the appellant as other than a
person of depraved character whose uncorroborated evidence, whether or
not he was guilty, could not be acted upon except where it supported
the prosecution case. Functional reasons also play a part in excluding
evidence of bad character. Trials would be lengthened and expense
incurred, often disproportionately so, in litigating the acts of other
misconduct; law enforcement officers might be tempted to rely on a
suspect's antecedents rather than investigating the facts of the
matter; rehabilitation schemes might be undermined if the accused's
criminal record could be used in evidence against him or her (93 See
Cross on Evidence, op.cit. at par.21150) . Despite these policy
considerations, in some circumstances evidence that discloses a
propensity to engage in criminal or discreditable conduct may be
admissible against the accused.
8. This Court has said that, if evidence that discloses the bad
character of the accused is relevant to the charge "for some reason
other than that he has committed crimes in the past or has a criminal
disposition" (94 Markby (1978) 140 CLR at 116 per Gibbs ACJ with
whose judgment Stephen, Jacobs and Aickin JJ agreed. See also Perry
(1982) 150 CLR at 585 per Gibbs CJ, 603 per Wilson J, 609 per
Brennan J), it may be admissible. It will be admissible as a matter
of law and not discretion (95 Boardman (1975) AC at 457 per Lord Cross
of Chelsea; Markby (1978) 140 CLR at 117 per Gibbs ACJ; Perry (1982)
150 CLR at 585 per Gibbs CJ) if the probative force of the evidence
"outweighs" (96 Perry (1982) 150 CLR at 604 per Wilson J; Sutton v.
The Queen [1984] HCA 5; (1984) 152 CLR 528 at 564 per Dawson J; Thompson v. The
Queen [1989] HCA 30; (1989) 169 CLR 1 at 16 per Mason CJ and Dawson J; Harriman v.
The Queen [1989] HCA 50; (1989) 167 CLR 590 at 598 per Dawson J; B v. The Queen
[1992] HCA 68; (1992) 175 CLR 599 at 608 per Brennan J, 618 per Dawson and Gaudron
JJ) or "clearly transcends' (97 Perry (1982) 150 CLR at 609 per
Brennan J; Sutton (1984) 152 CLR at 547 per Brennan J; 560 per Deane
J; Hoch v. The Queen [1988] HCA 50; (1988) 165 CLR 292 at 300 per Brennan and Dawson
JJ; Thompson v. The Queen (1989) 169 CLR at 16 per Mason CJ and
Dawson J; Harriman (1989) 167 CLR at 633 per McHugh J) its
prejudicial effect. As the reasoning of the Court's decision in
Harriman v. The Queen (98 [1989] HCA 50; (1989) 167 CLR 590) shows, the principles
concerning the admissibility of evidence revealing other acts of
misconduct are not confined to the so-called similar fact cases. They
apply in any criminal trial where the Crown wishes to lead evidence
tending to show that the accused has been guilty of wrongful acts other
than those with which the accused is charged (99 The contrary view
expressed in Rogerson and Paltos (1992) 65 A Crim R 530 at 543 is
incorrect) .
9. In Markby (100 (1978) 140 CLR at 117), Gibbs ACJ said that
evidence that is relevant for a reason other than that it shows the
criminal propensity of the accused is admissible as a matter of law if
it has a "strong degree of probative force" (101 Boardman (1975) AC at
444 per Lord Wilberforce) or "a really material bearing on the issues"
(102 ibid. at 439 per Lord Morris of Borth-y-Gest citing Harris v.
Director of Public Prosecutions (1952) AC 694 at 710) or is "so very
relevant that to exclude it would be an affront to common sense" (103
ibid. at 456 per Lord Cross) . By criminal propensity, his Honour
obviously meant an assumed tendency to commit criminal acts based on
the fact that the accused has committed criminal acts in the past. On
this view, evidence relevant for a reason other than that it shows the
criminal or discreditable propensity of the accused is admissible as a
matter of law, notwithstanding that it discloses that propensity (104
Character evidence indicates a person's general or usual traits or
tendencies and, therefore, that person's propensities. In this branch
of the law, however, the term "criminal propensity" is frequently used
in a specific way to describe the manner in which a person commits
criminal or wrongful acts. Thus, "(w)hile one would not normally say
that a person has a 'character' trait to commit a crime wearing a
particular disguise, it seems appropriate to use the term 'propensity'
if he has committed a number of crimes in that disguise." (Australian
Law Reform Commission, Report No.26 (Interim), Evidence, (1985), vol.2
at 223)) of the accused, if the evidence is strongly probative of that
person's guilt. On this view, there is no requirement to weigh the
probative value of the evidence against the risk of prejudice that its
admission might generate. But Gibbs ACJ went on to say that the
trial judge retains a discretion to exclude the evidence if the risk of
prejudice outweighs its probative effect (105 Markby (1978) 140 CLR at
117) - the so-called Christie (106 R. v. Christie (1914) AC 545)
discretion. Gibbs CJ repeated these views in Perry v. The Queen (107
(1982) 150 CLR at 586) and Sutton v. The Queen (108 (1984) 152 CLR
at 533-534) .
10. Recent authority in this Court (109 Perry (1982) 150 CLR at 604
per Wilson J, 609 per Brennan J; Sutton (1984) 152 CLR at 547 per
Brennan J, 560 per Deane J, 564 per Dawson J; Hoch (1988) 165 CLR at
300 per Brennan and Dawson JJ; Thompson v. The Queen (1989) 169 CLR at
16 per Mason CJ and Dawson J; Harriman (1989) 167 CLR at 598 per
Dawson J, 633 per McHugh J; B (1992) 175 CLR at 608 per Brennan J,
618 per Dawson and Gaudron JJ), however, rejects the proposition that
evidence revealing that the accused has committed acts of misconduct
other than those the subject of the charge is admissible as a matter of
law as long as it is strongly probative of that person's guilt. The
recent cases emphasise that as a matter of law and not discretion the
probative value of evidence revealing bad character or criminal
propensity must be sufficiently strong to outweigh or clearly transcend
the prejudicial effect of the evidence. But Markby has not been
overruled on this point. In the practical administration of criminal
justice, the difference between these two views is of real
significance. If it is a condition of admissibility that the
prosecution must show that the probative value of the evidence
outweighs its prejudicial effect, the onus is on the prosecution to
prove that condition. If the evidence is admissible merely because it
has strong probative force, the onus is on the accused to show that
evidence otherwise admissible should be rejected. Perhaps even more
importantly, if this class of evidence is excluded as a matter of
discretion, appellate review of the trial judge's discretion will be
more limited than it will be if it is excluded as a matter of law (110
In Reg. v. Straffen (1952) 2 QB 911 at 913, for example, counsel for
the accused accepted that the prejudicial effect of the evidence went
to the exercise of discretion and not admissibility. Consequently, he
felt unable to challenge the trial judge's exercise of discretion) .
11. Having regard to the recent decisions in this Court, the
prejudicial effect of the evidence must be regarded as going to the
issue of admissibility. In Sutton (111 (1984) 152 CLR at 565),
Dawson J thought that the trial judge retained a discretion to reject
the evidence even if its probative value outweighed or transcended its
prejudicial effect. But his Honour went on to express the view that he
found it difficult to envisage circumstances that could call for the
exercise of the discretion. In my opinion, once it is accepted that
the prejudicial effect of the evidence is a matter going to
admissibility, no scope remains for the exercise of the discretion to
reject probative evidence in criminal trials on the ground that it is
unduly prejudicial to the accused.
The standard of proof for admissibility of evidence disclosing
criminal propensity
12. In Perry (112 (1982) 150 CLR at 596), Murphy J thought that the
risk of prejudice from admitting similar fact evidence is so great that
the tribunal of fact should use such evidence against the accused only
when there is "no rational explanation ... consistent with the
accused's innocence". In Sutton (113 (1984) 152 CLR at 564), Dawson
J went further. His Honour said that evidence was not sufficiently
probative of guilt to overcome the risk of prejudice and be admissible
against the accused unless there was no rational view of that evidence
that was consistent with the innocence of the accused. This test was
applied by Mason CJ, Wilson and Gaudron JJ in Hoch v. The Queen (114
(1988) 165 CLR at 296) and by Dawson, Toohey and Gaudron JJ in
Harriman (115 (1989) 167 CLR at 602, 607 and 613 respectively) . If
these statements represent the law, it is difficult to see why the
recent cases have departed from the tests laid down by Gibbs CJ in
Markby and insisted that to be admissible the probative value of the
evidence must outweigh or transcend its prejudicial effect.
13. If evidence revealing criminal propensity is not admissible
unless the evidence is consistent only with the guilt of the accused,
the requirement that the probative value "outweigh" or "transcend" the
prejudicial effect is superfluous. The evidence either meets the no
rational explanation test or it does not. There is nothing to be
weighed - at all events by the trial judge. The law has already done
the weighing. This means that, even in cases where the risk of
prejudice is very small, the prosecution cannot use the evidence
unless it satisfies the stringent no rational explanation test. It
cannot use the evidence even though in a practical sense its probative
value outweighs its prejudicial effect.
14. Moreover, in Harriman (116 ibid. at 601), Dawson J, correctly in
my view, assumed that the exclusionary rules concerning evidence of
criminal propensity are not confined to similar fact evidence.
Accordingly, if the no rational explanation test constitutes a
condition of admissibility, evidence that the proceeds of a robbery
carried out by the accused were found at the scene of a murder would
not be admissible to prove the murder charge unless it satisfied that
test (117 cf. the facts of Reg. v. O'Meally (No.2) (1953) VLR 30) .
Furthermore, if the no rational explanation test is the law,
practitioners and trial judges have long been engaged in a futile
exercise. They have wasted much time and effort in attempting to
identify the prejudice to the accused that might arise if the evidence
is admitted, the weight to be given to the evidence, and whether that
weight outweighs the likely prejudice. A further reason for concluding
that the no rational explanation test is not applicable to every tender
of such evidence is that it requires the trial judge and, on appeal,
the Court of Criminal Appeal to perform the task of the jury and
evaluate the strength of the evidence. I do not recollect any other
area of the Australian law of evidence where the test that the judge
applies to the admissibility of a class of evidence is the same test
that the jury must apply to the question of guilt if the evidence is
admitted.
15. In my opinion, the standard of proof required to admit evidence
disclosing a person's criminal or discreditable propensities varies
according to the reasoning process to be employed, the nature of the
evidence, and the degree of potential risk to a fair trial if the
evidence is admitted. It will be necessary later in this judgment to
return to this question.
Propensity evidence
16. In Perry (118 (1982) 150 CLR at 593), Murphy J said that,
despite protests to the contrary, evidence has been tendered in similar
fact cases to prove the guilt of an accused by showing that the accused
was a person likely to have committed the offence for which he or she
was being tried. In Harriman, Dawson J challenged the conventional
view that propensity evidence was not admissible to prove the guilt of
the accused. His Honour said (119 (1989) 167 CLR at 600) that
neither Markby nor Hoch intended "to say that propensity evidence must
be relevant otherwise than as evidence of disposition before it can be
admitted". Dawson J went on to say: "A close examination of the
cases decided in an effort (ultimately unsuccessful) to avoid the
forbidden chain of reasoning will show that when propensity evidence
was admitted it was in general because of its relevance as propensity
evidence, whatever other label was put upon it." (120 ibid) His
Honour thought (121 ibid) that Reg. v. Straffen (122 (1952) 2 QB
911) and Makin v. Attorney-General for New South Wales (123 (1894) AC
57) were examples of cases where the probative value of the evidence
lay in proof of the accused's disposition. In B v. The Queen (124
[1992] HCA 68; (1992) 175 CLR 599 at 618), Dawson and Gaudron JJ said that evidence
of propensity may be admissible if it "goes beyond showing a mere
propensity to commit crime or a particular type of crime and points in
some other way to the commission of the offences in question, then it
will be admissible if its probative value for that purpose outweighs
its prejudicial effect". However, their Honours went on to say (125
ibid) :
"That is not to say that it may not still be evidence of propensity or
disposition, but it will then be evidence of propensity or disposition
of a particular kind which in the circumstances has a degree of
relevance justifying its admission."
17. Since Markby, however, this Court has rejected the use of an
accused person's propensity to commit crime as a reasoning factor in
determining guilt or innocence. If propensity reasoning is a
legitimate form of reasoning in criminal courts in this country, the
principle on which Markby was decided needs modification. In Markby,
the Court unanimously held that on a charge of murder, arising out of
a killing occurring during a sale of drugs to the deceased, evidence
was not admissible that the accused had been involved in earlier
incidents where a person buying drugs had been cheated or robbed.
Gibbs ACJ, with whose judgment Stephen, Jacobs and Aickin JJ
agreed, said (126 Markby (1978) 140 CLR at 116) that the principles
applicable had been "authoritatively stated in Makin" (127 (1894) AC
at 65) . His Honour said that "evidence of similar facts is not
admissible if it shows only that the accused had a propensity or
disposition to commit crime, or crime of a particular kind, or that he
was the sort of person likely to commit the crime charged" (128 Markby
(1978) 140 CLR at 116) . But Gibbs ACJ, echoing the words of Lord
Herschell in Makin (129 In Makin (1894) AC at 65, Lord Herschell
giving the Advice of the Privy Council said: "It is undoubtedly not competent
for the prosecution to adduce evidence tending to shew
that the accused had
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."
But Lord Herschell immediately qualified that general
proposition. Taken literally, the qualification negates the general
proposition.
His Lordship said: "On the other hand, the mere fact that the
evidence adduced tends to shew 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." Lord
Herschell made no reference to the need to weigh the cogency of the evidence
of other
criminal conduct against the prejudice that its admission was likely
to generate.), said that evidence of
similar facts is admissible "if it is relevant in some other way" (130
Markby (1978) 140 CLR at 116) . His Honour then went on to make it
clear that the evidence must be relevant in some way other than through
disposition by saying "that is, if it tends to show that he is guilty
of the crime charged for some reason other than that he has committed
crimes in the past or has a criminal disposition". As Dr J.R.S. Forbes
has pointed out (131 Similar Facts, (1987) at 28), "Markby, unlike
Makin, explicitly forbids reasoning from disposition in any case".
Nevertheless, the statement of principle by Gibbs ACJ accorded with
what Lord du Parcq, speaking for the Judicial Committee, had said in
Noor Mohamed v. The King (132 (1949) AC 182 at 192-193: "The facts proved as
to the death of Gooriah would certainly tend to deepen
that suspicion, and
might well tilt the balance against the accused in the estimation of the jury.
It by no means follows that this
evidence ought to be admitted. If an
examination of it shows that it is impressive just because it appears to
demonstrate, in the
words of Lord Herschell in Makin's case 'that the accused
is a person 'likely from his criminal conduct or character to have committed
the offence for which he is being tried,' and if it is otherwise of no real
substance, then it was certainly wrongly admitted.").
18. In Perry (133 [1982] HCA 75; (1982) 150 CLR 580), the accused was charged with
attempting to murder her third husband in 1978 by administering arsenic
to him. The Crown sought to prove the charge, inter alia, by evidence
that a de facto husband of the accused who had died of barbiturate
poisoning in 1970 had symptoms consistent with arsenic poisoning. The
Crown also tendered evidence that her second husband had died of
arsenic poisoning in 1961 and that her brother had died of arsenic
poisoning in 1962. All members of the Court held that the evidence
relating to the de facto husband was inadmissible and the Court was
equally divided as to whether the evidence concerning the brother was
admissible. By majority, the Court held that the evidence concerning
the second husband was admissible. Gibbs CJ stated the law in terms
similar to those which he had used in Markby. Wilson J and Brennan J
in separate judgments (134 ibid. at 603 and 609 respectively)
accepted that the law was correctly stated by Gibbs ACJ in Markby.
19. In my opinion, Markby and Perry were decided on the principle
that evidence of an accused person's criminal conduct is only
admissible when it is relevant to the proof of guilt in some way or
for some reason other than that the accused is a person who, because of
his or her criminal disposition, is likely to have committed the crime
in question. Arguably, proof of guilt by proof of the accused's
disposition was not the issue in either case. But the role of this
Court in declaring the law for the nation would be unduly
circumscribed if the principles that govern its decisions were not
authoritative or binding beyond the particular facts of the case in
which the principle was formulated and applied. Unless subsequent
decisions of this Court have undermined their authority, Markby and
Perry should be treated as establishing, as Ms Shaw contended, that
evidence of criminal conduct is only admissible if it is relevant in
some way other than establishing that the accused has a disposition to
commit crime or a particular kind of crime.
20. In my opinion, none of the subsequent decisions of this Court
overrule Markby or Perry. Nor is the ratio decidendi of any of the
subsequent decisions inconsistent with Markby or Perry. In Sutton,
the Court held that evidence in respect of a number of charges of rape
was admissible in proof of each charge of rape because of the striking
similarity of each offence. Gibbs CJ and Brennan J applied the
principles that they had applied in the earlier cases. Deane J
said (135 Sutton (1984) 152 CLR at 556, citing Boardman (1975) AC at
461 per Lord Salmon) that the effect of Makin is that evidence that
the accused is a person of bad character is deemed irrelevant in
English law. But his Honour also said that evidence of bad character
"may be admitted if it is relevant for other reasons" (136 ibid.
citing Noor Mohamed (1949) AC at 195) . At least in the context of
similar facts cases, Deane J made it plain (137 ibid. at 557) that
it is probability reasoning not propensity reasoning that makes the
damaging evidence admissible. Dawson J accepted (138 ibid. at 563)
that the law was as stated in Makin, Reg. v. Boardman (139 (1975) AC
421), Markby and Perry.
21. In Hoch, the Court held that a number of charges of indecent
assault should not have been heard together unless the trial judge had
found that there was no reasonable basis for concluding that the
complainants had concocted their similar stories. In a joint
judgment, Mason CJ, Wilson and Gaudron JJ stated the principles for
the admissibility of similar fact evidence in terms of probability and
not propensity reasoning. Their Honours said (140 (1988) 165 CLR at
294) :
"The basis for the admission of similar fact evidence lies inits possessing a particular probative value or cogency by reason that
22. In Thompson v. The Queen (143 [1989] HCA 30; (1989) 169 CLR 1) where the accused
was charged with the murders of two sisters, the Court upheld the
admissibility of evidence of subsequent murders by the accused of
another sister and her family on the ground that there was a striking
similarity in the manner that the various deaths had occurred.
Probability reasoning and not propensity reasoning was used. Mason
CJ and Dawson J said (144 ibid. at 18) that the "similarity
between the circumstances of those murders and the circumstances of the
earlier deaths of the two sisters was sufficiently striking to
eliminate coincidence as a reasonable hypothesis and to lead to the
conclusion that the two sisters did not die accidentally but at the
hand of the applicant". Brennan J (145 ibid. at 31-32) agreed that
the evidence was admissible because of the striking similarity of the
circumstances of the murders. Deane J (146 ibid. at 32) and Gaudron
J (147 ibid. at 40) thought that the evidence was admissible not
because of the striking similarity between the circumstances of the
various murders but by reason of "the underlying unity" of the two
incidents. Gaudron J said (148 ibid) that the "inextricable
connexion or underlying unity, rather than points of similarity, raises
the improbability of the deaths having occurred in a manner other than
as alleged in the prosecution case and gives the evidence that
probative force which renders it admissible".
23. In Harriman, where the appellant was charged with conspiring to
bring heroin into Australia, the Court upheld the admissibility of
evidence that disclosed that the appellant had been involved in other
heroin dealings with the co-conspirator. The Court held that the
evidence was admissible to show the relationship between those two
persons and to negative the suggestion that the appellant had
innocently accompanied the co-conspirator to a town in Thailand where
the co-conspirator had purchased heroin. Apart from Dawson J, no
member of the Court thought that the evidence was admissible as
propensity evidence. Moreover, four members of the Court said that
evidence is not admissible if it does no more than merely show that
the accused has a propensity to commit crime (149 Harriman (1989) 167
CLR at 594 per Brennan J, 607 per Toohey J, 613 per Gaudron J, 627
per McHugh J) .
24. Apart from the statements of Dawson J, nothing in the cases
subsequent to Markby and Perry undermines or raises any doubt about
the principles formulated by Gibbs ACJ in Markby. Indeed, in Perry
and other cases, the majority of the judges have accepted the validity
of those principles. But that is not the end of the matter. The
question arises whether those principles accurately reflect the way
that this branch of the law of evidence has operated in Australia and
in England in this century and whether they need to be modified. To
those questions I now turn.
Propensity reasoning in the cases prior to Markby
25. Prior to the decision of the House of Lords in Boardman, the
admissibility of what is often misleadingly called similar fact
evidence depended upon whether the evidence fell into one of the
exceptions to the rule that it was "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" (150 Makin
(1894) AC at 65) . Recognised exceptions were those in which evidence
was tendered to prove system, identity, knowledge or intent or which
rebutted "defences" such as accident or innocent association. The list
of exceptions was not closed (151 Harris v. Director of Public
Prosecutions (1952) AC at 705) . But the tendency of the courts was to
determine whether the evidence fell into a recognised category. If it
did that was usually the end of the matter. Nevertheless, at least
after the decision of the Privy Council in Noor Mohamed (152 (1949) AC
at 192), it was recognised that the trial judge retained the ordinary
discretion applicable in criminal trials to reject the tender of
evidence that was legally admissible if its prejudicial effect
outweighed its probative value.
26. In 1974 in Boardman (153 (1975) AC 421), the House of Lords,
although not openly departing from the law as laid down in Makin,
substantially reformulated the conditions for admitting evidence of
criminal conduct in proof of a criminal charge when that conduct is not
the subject of the charge. In Boardman, the House unanimously held
that evidence of other criminal conduct is not admissible if it does no
more than prove that, because of the accused's criminal character or
disposition, he or she is a person who was likely to have committed the
crime in question. Like Lord Herschell in Makin, however, all members
of the House accepted that in some circumstances evidence of criminal
conduct, other than the conduct that is the subject of the charge, is
admissible to prove an accused's guilt. Only Lord Hailsham of St
Marylebone specifically excluded reasoning from propensity. His
Lordship said (154 ibid. at 453) :
"It is perhaps helpful to remind oneself that what is not to be
admitted is a chain of reasoning and not necessarily a state of facts.
If the inadmissible chain of reasoning is the only purpose for which
the evidence is adduced as a matter of law, the evidence itself is not
admissible. If there is some other relevant, probative purpose than
for the forbidden type of reasoning, the evidence is admitted, but
should be made subject to a warning from the judge that the jury must
eschew the forbidden reasoning."
27. Lord Morris of Borth-y-Gest said (155 ibid. at 438-439) that
evidence of other crimes may be admitted if it "is sufficiently
substantial having regard to the purpose to which it is professedly
directed to make it desirable in the interest of justice that it should
be admitted". Lord Wilberforce said (156 ibid. at 444) that the
"basic principle must be that the admission of similar fact evidence
(of the kind now in question) is exceptional and requires a strong
degree of probative force". Lord Cross of Chelsea said (157 ibid. at
457) :
"The question must always be whether the similar fact evidence taken
together with the other evidence would do no more than raise or
strengthen a suspicion that the accused committed the offence with
which he is charged or would point so strongly to his guilt that only
an ultra-cautious jury, if they accepted it as true, would acquit in
face of it."
28. In my opinion, the principles of admissibility that were
formulated in Boardman cannot be reconciled with the formulation in
Markby. The Markby formulation is in accordance with the reasons of
Lord Hailsham in Boardman but is inconsistent with the approach of the
majority in that case. I cannot agree with the statement of Gibbs
CJ in Sutton (158 (1984) 152 CLR at 533) that Boardman did not
formulate any new principles for the admissibility of evidence
disclosing other acts of misconduct. Boardman plainly authorises the
use of propensity reasoning in appropriate cases.
29. To permit a tribunal of fact to use propensity reasoning
undermines the fundamental principle that in a criminal trial guilt is
not to be "inferred from the character and tendencies of the
accused" (159 Dawson v. The Queen (1961) 106 CLR at 16) . But there
are undoubtedly cases where the interests of justice require that
evidence should be admitted even though the prosecution intends to rely
on the criminal propensity of the accused. Day after day in the
criminal courts, evidence of other criminal acts on the part of the
accused is admitted to show "the relationship" between the accused and
the complainant (160 See, for example, Reg. v. Garner (1963) 81 WN (Pt
1) (NSW) 120 (evidence of a long course of cruelty and ill treatment);
Reg. v. Hissey (1973) 6 SASR 280 (previous acts of violence in a case
where the charge was murder by means of a blow to the abdomen); Reg. v.
Etherington (1982) 32 SASR 230 (evidence of previous acts of sexual
intercourse and sexual assault)) . In these cases, the relevance of
the evidence is that proof of the accused's propensity makes it more
likely than not that the accused is guilty of the offence with which he
or she is charged.
30. The leading case on relationship evidence in this Court is
O'Leary v. The King (161 [1946] HCA 44; (1946) 73 CLR 566. Although Dixon and
Williams JJ discussed the events as being part of "one transaction"
and Latham CJ and Rich J as part of the relevant circumstances, the
case was concerned with events occurring in the course of the
relationship between the accused and his fellow employees over a period
of many hours) where, on a charge of murdering a fellow employee at a
bush camp, the Court upheld the admissibility of evidence proving that
on the day and night of the killing the accused had violently assaulted
other employees. Latham CJ rejected (162 ibid. at 574) the
argument that the evidence was admissible because it identified "the
accused with the person who had committed the crime, the crime being of
a special character presenting specific features which showed that it
was committed by a person who had certain abnormal characteristics".
His Honour said (163 ibid. at 575) that the evidence "that, on the
day and the night of the killing of Ballard, he actually attacked
particular fellow employees without cause is also evidence which goes
to show the probability that he would attack some other fellow
employee".
31. Dixon J said (164 ibid. at 577) :
"The part which the prisoner took in the drunken orgy which, as the
facts suggest, culminated in the fatal attack upon the deceased man
would appear to me to be relevant to the question whether the prisoner
was the assailant and, if so, whether he was at the time capable of
forming, and did form, the intention which would make his crime
murder."
Williams J said (165 ibid. at 582) :
"The fact that the appellant alone of all these inhabitants was in the
course of the orgy committing acts of violence and threatening
violence must have in these circumstances probative value as making it
logically probable that he was the man who assaulted Ballard."
32. Evidence is also frequently admitted in criminal trials to prove
that the accused had possession of equipment needed to commit the
crime in question even though that evidence discloses the criminal
propensities of the accused. In practice, such evidence is led to
prove that the accused's propensity makes it likely that he or she
committed the crime in question. Thus evidence is admissible,
virtually as of course, that the accused was in possession of
instruments that might have been used to commit the crime in question.
It is unreal to think that a jury uses such evidence simply to prove
that the accused is a person who had the means to commit the crime in
question (166 The rhetorical question - "For what purpose did the
accused have this (equipment) if it was not to commit this sort of
crime?" is not unknown in a prosecutor's address. I suspect that it
would occur to few practitioners to question whether such a statement
was consistent with Markby principles) . Such evidence is not
admissible, however, if it does no more than show that the accused has
a propensity to commit crimes of that sort. Thus in Thompson and Wran
v. The Queen (167 (1968) 117 CLR 313 at 316), this Court said that,
on a charge of breaking and entering and stealing arising out of safe
blowing by means of explosives, evidence would be admissible that the
accused were in possession of "a supply of gelignite, detonators, wires
and batteries, suitable for the blowing of the safes". However, the
Court held that evidence that the accused were in possession of tools
that could be used to pick the locks of safes was not admissible. That
evidence had no connection with the crime charged and merely showed a
criminal propensity to rob safes.
33. However, the clearest case of the use of propensity evidence to
prove guilt is one involving a sexual offence. It would be impossible
to estimate the number of such cases where evidence has been admitted
to prove that the accused had committed offences against the
complainant on occasions other than the occasion that is the subject
of the charge. R. v. Ball (168 (1911) AC 47) established that Makin
did not prevent the giving of propensity evidence in such cases. In
Ball, the accused were charged with incest. They were brother and
sister. They lived in a house with one bedroom with a double bed that
bore signs of two persons having occupied it. The House of Lords
unanimously held that evidence was rightly admitted that previously
they had lived in another house as man and wife and that the female
defendant had given birth to a child and registered the male defendant
as the father. Lord Loreburn LC said (169 ibid. at 71) :
"(T)his evidence was clearly admissible on the issue that this crime
was committed - not to prove the mens rea, as Darling J considered,
but to establish the guilty relations between the parties and the
existence of a sexual passion between them as elements in proving that
they had illicit connection in fact on or between the dates charged".
Since Ball, it has never been doubted that in a sexual offence case,
evidence of the conduct of the parties is relevant to prove that the
offence charged occurred, notwithstanding that the only reasoning
process is propensity (170 See, for example, R. v. Gellin (1913) 13
SR(NSW) 271 and Etherington (1982) 32 SASR 230) .
34. Ball and the cases that follow it establish beyond dispute that
the Anglo-Australian law of evidence does not prohibit reasoning from
criminal propensity. Indeed, in both Thompson v. The King (171 (1918)
AC 221 at 225-226, 230, 231, 234, 235, 238) and Straffen (172 (1952)
2 QB at 916-917) the judges openly acknowledged that the accused's
propensity to commit the crime in question was a legitimate matter to
take into account. In Thompson v. The King, the accused was convicted
of committing acts of gross indecency with two boys. He was arrested
when, according to the prosecution case, he kept a subsequent
appointment with the boys. The accused set up an alibi and asserted
that it was a case of mistaken identity. The House of Lords held that
evidence was admissible against him that the accused was carrying
powder puffs when he was arrested and had photographs of naked boys
(173 According to Lord Atkinson all the photographs were "indecent in
their attitude, and some apparently depraved in suggestion": Thompson
v. The King (1918) AC at 230) in a drawer at his home. Lord Finlay
LC said (174 ibid. at 225) that possession of the articles tended
to show that the accused "had abnormal propensities of the same kind"
as the person who committed the acts of gross indecency. Lord Sumner
said (175 ibid. at 234-235. See also Lord Atkinson at 230, Lord
Parker at 231, Lord Parmoor at 238) :
"The actual criminal made an appointment to meet the same boys at the
same time and place three days later and presumably for the same
purpose. This tends to show that his act was not an isolated act, but
was an incident in the habitual gratification of a particular
propensity. The appellant, as his possession of the photographs tends
to show, is a person with the same propensity."
35. It may be that the evidence that was held to be rightly admitted
in Thompson v. The King would now be rejected. In Boardman (176
(1975) AC at 458), Lord Cross said that what Lord Sumner had said in
Thompson v. The King (177 (1918) AC at 235) about homosexuality being
"a particular perverted lust" "sounds nowadays like a voice from
another world". But whether the evidence was rightly or wrongly
admitted in Thompson, the Law Lords in that case saw no conflict
between Makin and the use of propensity reasoning.
36. In Straffen, the accused had been charged with the murder of two
girls. He was found unfit to plead by reason of his insanity but was
committed to an institution. He escaped and was at large for an
afternoon. During this period another girl, Linda Bowyer, was
murdered. When questioned by police, the accused denied that he had
killed her but admitted that he had spoken to her. He also admitted
that he had killed the other two girls. Each of the three killings
had five similarities: (1) each victim was a young girl; (2) each was
manually strangled; (3) none had been sexually assaulted; (4) in no
case was there any evidence of a struggle; and (5) no attempt had been
made to conceal any of the bodies although that could easily have been
done. The Court of Criminal Appeal held that on a charge of having
murdered Linda Bowyer evidence establishing the circumstances of the
deaths of the other two girls was admissible against the accused.
Slade J who gave the judgment of the Court said (178 Straffen (1952)
2 QB at 916-917) :
"I can see no distinction in principle between the present caseand Thompson v. The King ... Abnormal propensity is a means of
37. In the light of the decisions in O'Leary, Ball, Thompson v. The
King and Straffen, the statements in Boardman, and the practice of the
courts in admitting "relationship" evidence in the sexual offence and
other cases, I think that it is impossible to maintain that the
Anglo-Australian law of evidence prohibits the use of propensity
reasoning in all circumstances. The rational development of this area
of the law is not assisted by applying principles that do not accord
with the decisions of the courts. In these circumstances (179 cf.
Hatzimanolis v. A.N.I. Corporation Ltd. [1992] HCA 21; (1992) 173 CLR 473 at 482),
the Court should modify the statements of principle formulated in
Markby so that they accord with the reported decisions, the practices
of the courts, and the need to do justice to the prosecutor as well as
the accused.
The degree of potential risk of an unfair trial
38. But upon what basis should propensity reasoning be admitted?
Plainly, it cannot be admitted merely because it has probative or even
strong probative value. The risk of an unfair trial through the use
of propensity reasoning is too great to allow such a low threshold of
admissibility. Consequently, this Court has insisted that as a matter
of law and not discretion the probative value of the evidence must
outweigh or transcend its prejudicial effect (180 See, for example,
Perry (1982) 150 CLR at 604 per Wilson J, 609 per Brennan J; Sutton
(1984) 152 CLR at 547 per Brennan J, 560 per Deane J, 564 per Dawson
J; Hoch (1988) 165 CLR at 300 per Brennan and Dawson JJ; Thompson v.
The Queen (1989) 169 CLR at 16 per Mason CJ and Dawson J; Harriman
(1989) 167 CLR at 598 per Dawson J, 633 per McHugh J; B (1992) 175
CLR at 608 per Brennan J, 618 per Dawson and Gaudron JJ) .
39. Nevertheless, the proposition that the probative value of the
evidence must outweigh its prejudicial effect is one that can be
easily misunderstood. The use of the term "outweigh" suggests an
almost arithmetical computation. But prejudicial effect and probative
value are incommensurables. They have no standard of comparison. The
probative value of the evidence goes to proof of an issue, the
prejudicial effect to the fairness of the trial. In criminal trials,
the prejudicial effect of evidence is not concerned with the cogency
of its proof but with the risk that the jury will use the evidence or
be affected by it in a way that the law does not permit. In no sense
does the probative value of evidence disclosing propensity, when
admitted, outweigh its prejudicial effect. On the contrary, in many
cases the probative value either creates or reinforces the prejudicial
effect of the evidence. In my view, evidence that discloses the
criminal or discreditable propensity of the accused is admitted not
because its probative value outweighs its prejudicial effect but
because the interests of justice (181 cf. Lord Morris in Boardman
(1975) AC at 439) require its admission despite the risk, or in some
cases the inevitability, that the fair trial of the charge will be
prejudiced.
40. If there is a real risk that the admission of such evidence may
prejudice the fair trial of the criminal charge before the court, the
interests of justice require the trial judge to make a value judgment,
not a mathematical calculation. The judge must compare the probative
strength of the evidence with the degree of risk of an unfair trial if
the evidence is admitted. Admitting the evidence will serve the
interests of justice only if the judge concludes that the probative
force of the evidence compared to the degree of risk of an unfair
trial is such that fair minded people would think that the public
interest in adducing all relevant evidence of guilt must have priority
over the risk of an unfair trial.
41. If the evidence does no more than prove a mere propensity to
commit crimes of the kind in question, it will never have sufficient
probative force to make it admissible. If it does have the required
degree of probative force, it will be because it is relevant for a
reason other than proof of propensity or because it colours one's
perception of the other evidence to such an extent that it can be
confidently inferred that the accused gave effect to the propensity on
the occasion in question. Evidence of a striking similarity between
the commission of the crime and the method used by the accused will
frequently be sufficient to prove that inference. But striking
similarity is not the exclusive test. The circumstantial force of the
other evidence together with the propensity evidence may prove the
inference. Ball is a good example. Without the propensity evidence,
the prosecution had proved no more than an opportunity to commit
incest. Moreover, the propensity evidence had no intrinsic mark that
connected it with the other evidence. However, the combination of the
propensity evidence and the other evidence pointed irresistibly to
incest having occurred. Proof of the offence depended on probability
reasoning not similar facts. For propensity evidence to be
admissible, however, it will need to have "specific probative value in
relation to the crime charged" (186 See Piragoff, op.cit. at 109) .
Even then, propensity evidence will not be admitted if the prejudicial
value of the evidence makes it contrary to the interests of justice to
admit it.
42. If the risk of an unfair trial is very high, the probative value
of evidence disclosing criminal propensity may need to be so cogent
that it makes the guilt of the accused a virtual certainty. In cases
where the risk of an unfair trial is very small, however, the evidence
may be admitted although it is merely probative of the accused's
guilt. Each case turns on its own facts. But the judge must bear in
mind that the admission of evidence revealing criminal propensity is
exceptional. Further, as Lord Cross pointed out in Boardman (187
(1989) 167 CLR at 600), while there remains a general rule against the
admission of other acts of misconduct, "the courts ought to strive to
give effect to it loyally and not, while paying lip service to it, in
effect let in the inadmissible evidence".
43. Thus, where the prosecution case depends entirely on propensity
reasoning (188 (1982) 150 CLR at 594), the evidence will need to be
very cogent to be admitted. When propensity reasoning is relied upon,
the danger is high that the tribunal will convict simply because of the
accused's propensity instead of using it as an evidentiary factor.
Consequently, in such a case the evidence will need to be so cogent
that, when related to the other evidence, there is no rational
explanation of the prosecution case that is consistent with the
innocence of the accused. However, I do not think that evidence
disclosing or tending to prove other criminal or wrongful conduct, and
consequently the criminal or discreditable propensity of the accused,
must always meet this high standard. In the relationship cases, for
example, propensity reasoning may simply reinforce or explain other
evidence that directly implicates the accused. In such cases, it would
be contrary to both the practice of the criminal courts and the
interests of justice to use the no rational explanation test as the
condition of admissibility of such evidence. In other cases,
particularly those where the evidence is admissible for a reason other
than the accused's propensity, the risk of prejudice may be so small
that justice both to the accused and to the prosecution can be done by
admitting evidence that is probative of guilt and warning the jury that
they must not use the evidence in the way that is likely to create
prejudice.
44. It follows that in each case where evidence is tendered that
discloses, directly or indirectly, the criminal propensities of the
accused, it is necessary to identify the nature of the risk, if any,
to which the admission of the evidence gives rise. In similar fact
cases, for example, evidence is often admitted for the reason that the
association of the accused with so many similar deaths, injuries or
losses, as the case may be, makes it highly improbable that there is
any innocent explanation for the accused's involvement in the
matter (189 Sutton (1984) 152 CLR at 564; Hoch (1988) 165 CLR at 296;
Harriman (1989) 167 CLR at 602, 607 and 613) . In these cases, the
propensity of the accused will usually only be established by the
verdict. The risk of prejudice is much less than in a case like
Thompson or Straffen.
45. Makin is the classic example. It was a case involving objective
improbability reasoning, not propensity reasoning (190 citing Hoch
(1988) 165 CLR at 296) . The propensity of the accused to kill the
babies was only established by the conclusion that it was probable to
the point of certainty that so many babies including the baby the
subject of the indictment could not have died by accident.
Accordingly, they must have been murdered by the Makins. It was the
verdict that established the accused's propensity. I am unable to
agree with the statement of Dawson J in Harriman that Makin was "a
case in which the probative value of the other instances of
baby-farming activities on the part of the two accused lay in
establishing a disposition on their part to engage in such activities
which, together with the other evidence in the case, pointed with great
force to their having murdered the one child with whose murder they
were charged" (191 Although his Honour did not mention onus, it is
impossible to believe that so experienced a judge would not have
applied the settled rule that the onus is on the accused to show that
admissible evidence should be excluded on discretionary grounds) . On
this approach, the jury would find the disposition from the uncharged
deaths and then use that disposition to conclude that the accused had
murdered the child the subject of the charge. That is certainly not
the way that the courts have hitherto dealt with cases giving rise to
objective improbability reasoning. Indeed where there is only one
similar instance beside the charged instance relied upon, it would be a
very strange reasoning process. The risk of prejudice in true similar
fact cases is not from propensity reasoning but from the fact, as
Murphy J pointed out in Perry (192 The appellant's daughter testified
that the appellant had told her that he gave Michael Black a knife to
clean a fish), that "(c)ommon assumptions about improbability of
sequences are often wrong." A jury may wrongly give the similar fact
evidence far more weight than it deserves.
46. In other cases involving similar facts, however, the accused may
have admitted the facts of a similar incident or the facts of a
similar incident may clearly point to wrongdoing on the part of the
accused in relation to that incident. In such cases, there is a risk
that, instead of relying on probability reasoning, the jury will simply
rely on the propensity of the accused as revealed by the incident that
is admitted or proved. It follows that the nature of the prejudice
and the degree of risk of an unfair trial will always depend on the
facts of each case.
47. It also follows that I am unable to agree with those statements
in this Court (193 There was evidence from one witness that Michael
Black was at Sturt Reserve "about 3 o'clock". But Cox J obviously
thought that this evidence was unreliable) that suggest that evidence
that discloses the criminal propensity of the accused cannot be
admitted unless that evidence together with the other evidence denies
any rational explanation of the accused's conduct that is consistent
with his or her innocence. That rule will be generally applicable when
the Crown is relying on the accused's criminal propensity because the
risk of prejudice from propensity reasoning is so high. But in the
relationship cases, for example, where evidence of propensity is relied
on as confirmatory or explanatory of evidence implicating the accused,
I do not think that such a high standard is either required or
appropriate. Similarly, in cases where the accused's propensity is
disclosed, but is not the basis of any reasoning process, a standard of
proof lower than the no rational explanation standard may suffice for
admission.
The findings of the trial judge
48. Cox J, the learned trial judge, made a number of specific
findings after hearing over 100 witnesses for the prosecution. In
making those findings, his Honour said that he thought all witnesses
had given their evidence honestly. Conflicts in the evidence were the
result of the fallibility of human recollection. His Honour found
that:
1. Michael Black was at Sturt Reserve by 1.30 p.m. He did not ride
his bicycle to Thiele Reserve after that time.
2. In all likelihood, the man that Michael Black was seen talking to
at Sturt Reserve at about 2.25 p.m. was the appellant.
3. A witness, Mr Bernardi, saw Michael Black's bicycle leaning against
the railing near the toilet block at Thiele Reserve before 3.26 p.m.
The bicycle was never lying on the bitumen nor was it anywhere else in
Thiele Reserve, as other witnesses had deposed.
4. Drowning, as an explanation of Michael Black's disappearance, was
not a reasonable possibility.
5. Abduction was conceded to be the only rational alternative to
drowning and any abduction was very likely to have been for a sexual
purpose.
6. It was very likely that Michael Black left Sturt Reserve in a
vehicle driven by his abductor.
49. Cox J said that the evidence showed that the appellant had a
disposition for young boys and was willing to pursue it by the extreme
means of kidnapping and rape. His Honour said that it was erroneous
to suppose that it was "always necessary to point to some additional
characteristic or application of discreditable propensity evidence to
demonstrate its relevance to the crime charged". Hoch made it plain,
his Honour said, that more than "appreciable probative value" was
needed to admit the evidence. The learned judge said that in this
case there was "more". He then referred to various matters.
50. It is not clear to me whether his Honour was making findings
about the matters to which he then referred because he began his
discussion of them by saying that "(t)here is evidence from which the
jury could find". But in the context of his judgment, I think that it
should be inferred that his Honour in referring to those matters was
making findings of fact. Matters to which His Honour referred
included the following:
1. On the day preceding Michael Black's disappearance, the appellant
had been informed that Thiele Reserve was a nude bathing spot and had
been given directions as to how to get there.
2. On the same day at Sturt Reserve he had spoken to children who were
strangers to him. He had asked them to tell him if they could think
of any place where he could go for entertainment. He also invited them
to go with him in his van and show him those places.
3. The appellant spoke to Michael Black on the day that he
disappeared, patted his dog and lent him a knife to clean a fish. He
later told his daughter that he had seen Michael Black twice and a hand
gesture indicated that he had seen him on one of these occasions at
Thiele Reserve.
4. There was no clear evidence of Michael Black having been seen after
2.25 p.m. A van similar to the accused's van was driven away from the
direction of Sturt Reserve "in a hurry about 2.45".
5. Between 3.00 p.m. and 3.30 p.m., Mrs Gould heard the sound of a
vehicle arriving at the northern, i.e. toilet block, end of Thiele
Reserve and leaving soon afterwards. At the same time she heard the
agitated barking of a dog. Her description of the vehicle's sound
fitted the accused's van "though plainly it could have fitted a large
number of other vehicles as well".
51. Early in his ruling, Cox J had said that the test of
admissibility for propensity evidence was "exceptionally high" and
that this Court had said the test was "whether there is a rational view
of the evidence that is inconsistent with the guilt of the accused"
(194 The appellant told his wife that he committed the offence against
H because he was lonely) . His Honour said that that test had to be
applied not only to the H evidence but also "to the primary issue
whether Michael Black was, indeed, abducted by anyone". The learned
judge held that the H evidence was admissible, saying:
"In my opinion, the evidence of the accused's presence andbehaviour in the area on January 17 and 18 including his dealings with
52. His Honour went on to say that it would be an affront to common
sense to postulate two persons in Michael Black's vicinity at Murray
Bridge at about the same time that afternoon, almost certainly at
Sturt Reserve, and each of them having a propensity to kidnap and
sexually assault young boys and each having the physical means of doing
so. His Honour concluded his ruling by saying:
"Obviously the prejudicial effect of admitting the (H) evidencewould be very considerable. It is only the cogency of the evidence on
53. This last passage indicates that his Honour thought that he had
a discretion to exclude the evidence. But it is not clear whether the
last sentence in that passage was a new and independent conclusion or
whether it was a conclusion drawn from the preceding sentences. If it
was a conclusion drawn from the preceding sentences, it was erroneous.
If it was such a conclusion, the learned trial judge has regarded the
prejudicial effect of the evidence as a matter that goes to the
exercise of the discretion to reject evidence that is admissible and
not to the condition of its admissibility. I have already referred to
the recent cases in this Court that hold that prejudice goes to
admissibility. In the context of the present ruling, the importance
of the distinction lies in the onus of proof.
54. On reading his Honour's ruling as a whole, I incline to the view
that he did see prejudice as going to the issue of discretion and that
would mean that his Honour has put the onus on the appellant to
justify the exclusion of relevant evidence (195 Reg. v. Kilbourne
(1973) AC 729 at 758 per Lord Simon of Glaisdale) . Nevertheless, I do
not think that that error, if there be one, affects the admissibility
of the evidence. That is because his Honour applied the no rational
explanation test as the standard for admitting the evidence. And, as
I have indicated, that makes irrelevant the question of weighing
probative value against prejudice.
55. There is, however, another reason why in my respectful opinion
his Honour's approach must be regarded as erroneous. His Honour took
the view that the H evidence could only be used against the appellant
if there were anterior findings that Michael Black had been abducted
for sexual purposes and then murdered. His Honour directed the jury
that they had to be satisfied beyond reasonable doubt about these
matters before they could use the H evidence to identify the appellant
as the abductor. Consequently, a finding that Michael Black was
abducted for sexual purposes was necessary if the appellant was to be
identified with the crime and that finding had to be established
beyond reasonable doubt to his Honour's satisfaction before the H
evidence could be admitted. But with great respect to his Honour, I am
unable to accept that, independently of the H evidence, the other
evidence established beyond reasonable doubt that Michael Black was
abducted for sexual purposes.
56. Although one may speculate that Michael Black must have been
abducted for sexual purposes, I do not think that that conclusion
rises above surmise or speculation. Without the H evidence, there is
no evidence upon which it could be found beyond a reasonable doubt
that Michael Black was abducted for sexual purposes. If the appellant
had been indicted for sexually assaulting as well as murdering Michael
Black and the evidence showed that H had been abducted but not
sexually assaulted, I do not see how a jury could be satisfied beyond
reasonable doubt that Michael Black had been sexually assaulted.
Admittedly, abducting for sexual purposes and sexual assault are two
different matters. But in the context of this case it is a distinction
without a difference.
57. In my view, however, the learned trial judge took too narrow a
view of the use that could be made of the H evidence. I do not think
that its use was limited to identifying the accused as the abductor,
if there was one. The propensity evidence was also relevant to the
question of whether there had been an abduction. The learned trial
judge's approach was reminiscent of the approach of the House of Lords
in Thompson v. The King and that of Slade J in Straffen. That
approach was understandable when the admissibility of evidence
disclosing criminal propensity was thought to depend upon categories
of exceptions. But the great advance that Boardman made was to reject
the category approach. In my opinion, the H evidence, if it was
admissible, and I think that it was, was admissible to prove the
abduction, the purpose of the abduction and the murder as well as the
fact that the appellant was the killer.
The H evidence was admissible
58. The evidence of H and the statement that the appellant made to
his then wife were admissible because combined with the other evidence
they point irresistibly to the conclusion that the appellant abducted
Michael Black and murdered him. There is no rational explanation of
the evidence that is consistent with his innocence. Apart from the
hypothesis that the appellant abducted and murdered Michael Black, the
only arguable hypotheses that are open are that Michael Black drowned
or that some other person abducted him and murdered him. When the
evidence of H and the appellant's then wife is taken into account,
neither hypothesis is a rational possibility.
59. Admittedly, all the circumstances are not known. One of the
dangers of circumstantial evidence is that the logical coherence of a
theory that fits the known circumstances pulls the mind to conclusions
that would never be reached if more circumstances were known. The
natural tendency of a tribunal of fact in a circumstantial evidence
case is to dismiss as fanciful or speculative alternative theories
that require the existence of circumstances in addition to those that
are known. In res ipsa loquitur cases, for example, defendants rarely
persuade judges or juries that they are not negligent when the cause
of the accident is not established. In criminal trials, the tendency
to dismiss exculpatory theories as fanciful or speculative is often
likely to be present because there would be no case to go to the jury
unless there was a theory of the known circumstances that pointed to
the accused. For that reason, many counsel, experienced in the conduct
of criminal trials, would much prefer to defend a case based on
eye-witness evidence than one based on circumstantial evidence.
Nevertheless, while I am conscious of these dangers, I think that,
once the H evidence is admitted, there is no rational hypothesis on
the evidence that is consistent with the appellant's innocence.
60. In my opinion, the known circumstances point to and are
consistent with the hypothesis that the appellant invited Michael
Black into his van at Sturt Reserve and either at that reserve or
after leaving that place abducted him for sexual purposes, planted his
bike and other belongings at Thiele Reserve to distract attention from
the appellant's association with him at Sturt Reserve, and murdered
him. That hypothesis is established beyond reasonable doubt because
the only alternative hypotheses cannot be rationally maintained.
61. Michael Black is undoubtedly dead. No sighting of him has
occurred since he was seen at Sturt Reserve on the afternoon of 18
January 1989. He was either murdered or he drowned. It is irrational
to suppose that he could have met his death in some other way.
62. About 14 January 1989, the appellant left home by himself in his
white Kombi van, a vehicle equipped with sleeping and cooking
facilities and a television set. He returned home on 20 January. The
ostensible purpose of his trip was the study of physics. He was at
Sturt Reserve on 17 and 18 January and camped overnight there. He was
present at the reserve on the afternoon that Michael Black
disappeared. On his own admission, he spoke to Michael Black at 1.30
p.m. That is within an hour of the last reliable sighting of Michael
Black. Whether or not the appellant abducted Michael Black, he must in
fact have spoken to him later than 1.30 p.m. The evidence suggests
that Michael did not arrive at the reserve much before 1.30 p.m., and
that he did some fishing. According to the appellant (192 The appellant's
daughter testified that the appellant had told her that
he gave Michael Black
a knife to clean a fish.), he lent
Michael a knife to kill a fish that Michael had caught. The appellant
was also seen to pat Michael's dog. He admitted that Michael Black
came to his van and watched television for a short period when he
returned the knife. He admitted that he had in his van tape of the
same kind that he had used to tie up H at Port Noarlunga.
63. Cox J said that there was no reliable evidence that Michael
Black was seen at Sturt Reserve after about 2.25 p.m. that day (193 There was
evidence from one witness that Michael Black was at
Sturt Reserve "about 3
o'clock". But Cox J obviously thought that this evidence was unreliable.).
His Honour thought that it was likely that the appellant was the
person talking to Michael Black at that time. But the evidence does
not fit the appellant's description. I would not accept that it was
the appellant. Apart from this finding, however, I can see no basis
for rejecting his Honour's conclusion concerning the primary facts of
the case. He had the advantage of seeing and hearing the witnesses.
64. A van, similar to the appellant's van, was seen being driven
away from the direction of Sturt Reserve in a hurry at about 2.45 p.m.
The appellant admits that he had left Sturt Reserve by that time. He
claimed, however, that he left the reserve between 2.15 p.m. and 2.30
p.m. Nevertheless, given the scope for error in accurately recalling
the times of incidents, the close relationship between Michael Black's
last sighting at Sturt Reserve, the sighting of a van similar to the
appellant's being driven in a hurry at about 2.45 p.m. and the
appellant's leaving that reserve at about 2.30 p.m. has probative
value.
65. The evidence of H and the appellant's wife established that the
appellant had a propensity to abduct young boys from public places for
the purpose of imprisoning them and sexually assaulting them. Apart
from the present case, that propensity has manifested itself on one
occasion only. But the statement to his wife established that the H
incident was not a one-off, spur of the moment aberration. It is
impossible to believe the appellant's evidence that he had no
intention of abducting H when he induced him to enter the van and that
the abduction was a spontaneous act. His credibility is such that his
claim cannot stand with the evidence of H and his wife. Her evidence
established that the propensity of the appellant existed as at January
1989. The modus operandi that the appellant used when he abducted H
was to lure him into his Kombi van by falsely telling him that he
wanted help to retrieve a set of keys, threaten him and then bind, gag
and blindfold him. In addition, when the appellant abducted H, he
threatened to hurt him if he tried anything. Later at his home, he
threatened to kill or hurt H unless H took off his clothes. There is
no reason to suppose that on other occasions he would not use a
similar modus operandi if he gave effect to his propensity.
66. On the day prior to Michael Black's disappearance, the appellant
spoke to two children whom he did not know and invited them to go with
him in his van and show him places of interest. By itself, the
invitation excites the suspicion that the motive for the invitation
was sexual. The evidence of H and the appellant's wife also makes it
probable that at back of the invitation was a desire by a "lonely" (194 The
appellant told his wife that he committed the offence
against H because he was
lonely.) man to have some form of intimate, almost certainly sexual, contact
with the children. It provides a solid ground for thinking that his
association with Michael Black on the following day was also driven by
a desire for the same form of contact.
67. The probabilities tell heavily against Michael Black going to
Thiele Reserve for his own purposes. He did not like the place. He
had been forbidden to cross the river, which he would have had to do
to get to Thiele Reserve. He did not swim at Sturt Reserve, which was
one of his favourite swimming places. He had no towel, nor, so far as
is known, did he have a swimming costume. Why then would he leave
Sturt Reserve and go to Thiele Reserve to swim? No one saw him there
although two boys who were there knew him. If he drowned, he must
have done so within a short period of arriving; otherwise they must
have seen him.
68. The search evidence makes it highly improbable that Michael
Black drowned. If he had drowned, the chance that his body would not
have been recovered was very small. In addition, nothing in the
evidence suggests that there was any particular danger associated with
swimming in the area of the river near where his clothes were found,
and he was a competent swimmer. If he went to Thiele Reserve for some
purpose of his own, it is most unlikely that he drowned.
69. If Michael Black did not voluntarily go to Thiele Reserve, then
the only rational conclusion is that his clothes, bike, rod and dog
were taken there by an abductor. The conclusion that he was abducted
that day by the appellant and did not drown is strongly confirmed by
the evidence of Mrs Gould and the evidence of Mr Bernardi who saw the
bike there some time before 3.26 p.m.
70. At about 3.15 p.m. Mrs Gould heard a vehicle arrive at the end
of the reserve where the bike and fishing rod were later found. The
vehicle stayed for only a short period and its stay was marked by the
distressed barking of a dog which continued after the vehicle had
departed. That dog was beyond doubt Michael Black's dog. Mrs Gould
described the engine of the vehicle as having a "very rowdy sort of
chugging engine". The vehicle took off quickly. Fourteen months
later she took part in a test at Thiele Reserve to see whether she
could identify the accused's vehicle by its noisy engine. Eight
vehicles - five sedans, two Kombi vans and a panel van - took part in
the test. The appellant's van was used twice in the test. It was the
fourth and ninth vehicle tested. On both occasions she said that the
noise from the appellant's van was "very similar indeed" to what she
heard. She said that another vehicle, probably the panel van, bore a
resemblance to what she heard. But she thought that the fourth vehicle
was the most likely vehicle.
71. On the day before Michael Black's disappearance, the appellant
had been informed that Thiele Reserve was a place where he could swim
in the nude. He was given directions as to how to get there. A week
later he took his wife and family through Thiele Reserve after a
picnic at Sturt Reserve. A conversation with his wife indicated that
he had been at Thiele Reserve before and liked it. This evidence makes
it probable that he went there to swim on the day before Michael Black
disappeared.
72. The probability that the appellant had already been to Thiele
Reserve, the fact that his vehicle had admittedly left Sturt Reserve
and was being driven in the Murray Bridge area at 3.15 p.m. and the
evidence of Mrs Gould make it likely that it was the appellant's
vehicle that she heard at Thiele Reserve. Moreover, it appears from
the summing up of Cox J. that another witness, Mr Neindorf, saw a
white Kombi van in the car park area of Thiele Reserve, and no one
recollects any other vehicle entering or leaving the car park before
4.30 p.m. that might have been used to abduct Michael Black.
Independently of the propensity evidence, there is a significant
probability that the appellant drove to Thiele Reserve about 3.15 p.m.,
stayed shortly, and left hurriedly in circumstances that caused the
distressed barking of Michael Black's dog.
73. Moreover, if the appellant killed Michael Black, he had a
compelling motive to plant a false trail at Thiele Reserve to suggest
that Michael Black had drowned there. Killers do not usually plant
false trails unless they feel it is necessary to do so to distract
attention from their association with or opportunity to kill their
victims. If Michael Black did not drown, it is likely that his killer
had some motive for planting a trail suggesting that he did. Of
course, the motive may simply have been to suggest drowning so as to
make it unlikely that there would be a hunt for the abductor. But the
disappearance from Sturt Reserve would itself have raised the drowning
theory. In addition, going to Thiele Reserve to plant a false trail
with the bike, dog, clothes and fishing rod posed risks for the
abductor. The evidence strongly suggests that Michael Black's dog was
tied up at Thiele Reserve before it broke free. Both the place where
it was tied up and the place where Michael's clothes were found meant
that the abductor had to walk some distance from his or her vehicle.
The motive that the appellant had for planting a false trail at Thiele
Reserve was that too many people had or might have seen his
association with Michael Black at Sturt Reserve. If he was the
abductor, he had a strong motive to fabricate a persuasive case of
drowning at a place away from Sturt Reserve, and Thiele Reserve was a
swimming place to which he had been directed and where he very probably
had been.
74. When all the circumstances including the appellant's propensity
are considered, I think that the only rational conclusion is that the
appellant abducted Michael Black for sexual purposes and later
murdered him. Sexually assaulting young boys is regrettably not
unknown in South Australia or elsewhere in this country. But luring
boys into vehicles, tying them up, sexually assaulting and keeping
them imprisoned is, as Cox J. said, an unusual crime in South Australia
or elsewhere in this country. Unless Michael Black drowned, he must
have been lured into a vehicle at Sturt Reserve together with his dog,
bike and fishing gear, abducted, driven to Thiele Reserve and later
murdered. The appellant had the propensity to abduct Michael Black.
He had asked two children to travel with him in the van and the terms
of his invitation to them suggest that the reasons he gave for making
it were false. Given his propensity, it is likely that he was seeking
sexual gratification from those children and it is a short step to
conclude that that propensity was excited by his contact and
association with a young boy like Michael Black. Furthermore, the
appellant was with Michael Black shortly before his disappearance. He
was not at Sturt Reserve after Michael Black disappeared.
75. The propensity evidence, the appellant's behaviour at Sturt
Reserve, the proximity between the time that he left Sturt Reserve and
the time that Michael Black disappeared together with Mrs Gould's
evidence establish a convincing case beyond a reasonable doubt that
the appellant abducted Michael Black and planted a false trail at
Thiele Reserve. If he did that, the conclusion that he also murdered
Michael Black is irresistible. I do not think that it is of any
importance that he did not murder H. Assuming that he had no intention
to murder H, once the conclusion is reached that he abducted Michael
Black, no rational conclusion is open other than that he also murdered
him.
76. This is not a case where proof of the appellant's propensity did
no more than show a mere propensity to commit crimes of a sexual
nature. If the evidence had established that Michael Black had gone
to Thiele Reserve to swim, the case would have been different. There
would have been no false trail, and Mrs Gould's evidence would not
have had the same force. But the evidence points to an abduction at
Sturt Reserve at a time when the appellant was present, the planting of
a false trail at Thiele Reserve and the appellant's presence at Thiele
Reserve where Michael Black's belongings were found. In addition, the
appellant admits that at Sturt Reserve he spoke to Michael Black at a
time shortly before he disappeared. There was, therefore, such a
nexus between the other facts in the present case and the manner in
which the accused's propensity manifested itself in the H incident that
evidence of his propensity had significant probative value. It was so
significant that together with the other evidence there was no
rational explanation consistent with the innocence of the appellant.
77. Once the propensity evidence is used alternative hypotheses and
doubts that one might have about particular segments of the evidence
are eliminated. Circumstantial evidence "works by cumulatively, in
geometrical progression, eliminating other possibilities" (195 Reg. v.
Kilbourne (1973) AC 729 at 758 per Lord Simon of Glaisdale).
Ultimately, the propensity and other evidence in this case combine to
cut out all hypotheses other than the hypothesis that the appellant
abducted and murdered Michael Black.
78. The combination of that evidence eliminates drowning as a
rational possibility. It also eliminates abduction by someone other
than the appellant. The circumstances that point to the appellant
leave no room for a rational hypothesis that a person other than the
appellant was the abductor and murderer. It would be a remarkable
coincidence, having regard to the facts that are known and can be
reasonably inferred if, in addition to the appellant, there was
present at Murray Bridge that day another person who abducted Michael
Black and who knew, and had a reason to plant a false trail at, Thiele
Reserve. It would be remarkable because that person, like the
appellant, would have had a propensity to abduct a young boy, would
have used a vehicle with a very rowdy chugging engine with an uneven
beat like the appellant's, would have abducted his victim about the
time that the appellant left Sturt Reserve and would have selected as
his victim a boy that the appellant had associated with not long
before. The hypothesis that another person abducted Michael Black is
fanciful compared to the hypothesis that the appellant was the
abductor.
Miscarriage of justice
79. As I have indicated, the learned trial judge directed the jury
to examine the evidence in a framework different from that which I
think should have been used. In most cases, that would mean that a
new trial would have to be ordered. But in my opinion that order is
not required in this case. The directions of his Honour erred in
favour of the appellant. Upon the evidence which the jury must have
accepted to convict the appellant, no reasonable jury could have failed
to convict him if they had been directed in accordance with the
principles and the legal framework that I think were the appropriate
ones. In those circumstances, the directions of his Honour did not
constitute any miscarriage of justice.
Order
80. The appeal should be dismissed.
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