PROPENSITY EVIDENCE
Introduction
[1]
The issue of the admissibility of propensity evidence has troubled courts and judges
for more than a century. A comprehensive review of the subject was needed by a
court of high authority so as to establish a cohesive principle to be applied by trial
judges when ruling on the admissibility of propensity evidence. In my respectful
opinion that comprehensive review was carried out in the majority judgment of the
High Court (Mason CJ, Deane and Dawson JJ) in Pfennig v The Queen (1994-1995)
182 CLR 46.
[2]
However, a reading of the judgments of the Court of Appeal of Queensland suggests
that the trouble has continued. Rulings of trial judges that propensity evidence is
admissible are frequently appealed against if convictions follow, the rulings are
regularly overturned and retrials ordered. I expect that similar difficulties have been
encountered in the other states. The case of Phillips v The Queen (2006) 158 A
Crim R 431, so far as I have been able to ascertain, is the first case dealing with the
admissibility of propensity evidence to be brought before the High Court since
Pfennig.
[3]
The unanimous judgment in Phillips was therefore a perfect opportunity for the
High Court to enlighten trial judges and Courts of Appeal about the proper
application of the Pfennig principle. Unfortunately, in my respectful view, it was
unsuccessful as I will attempt to comprehensively explain later. I am fortified in
this view by the following article: Jeremy Gans, Similar Facts after Phillips, (2006)
30 Crim LJ 224. See also David Hamer, Similar Fact Reasoning in Phillips:
Artificial, Disjointed and Pernicious (2007) UNSW Law Journal 30(3) 609. The
one matter about which the judgment in Phillips is very clear is that Australian
Courts and judges must continue to apply the rule as stated by the majority in
Pfennig.
[4]
In order to comprehensively examine the issue of the application of the Pfennig
principle it is necessary to set out a substantial part of the majority judgment. It
opens as follows at p 464:“This appeal raises questions as to the admissibility of what has been
described as propensity evidence or similar fact evidence and the use
to which it can be put. There is no one term which satisfactorily
describes evidence which is received notwithstanding that it
discloses the commission of offences other than those with which the
accused is charged. It is always propensity evidence but it may be
propensity evidence which falls within the category of similar fact
evidence, relationship evidence or identity evidence.
These
categories are not exhaustive and are not necessarily mutually
exclusive. The term similar fact evidence is often used in a general
but inaccurate sense.”
[5]
Thereafter, the judgment sets out in considerable detail the evidence which was led
at the appellant’s trial. I will return to discuss this later. At p 475 the judgment
commences a comprehensive discussion of the authorities before the test was finally
2
stated in precise terms. Although it is lengthy in my view a comprehensive
examination requires it to be set out in full as follows:“The admissibility of similar fact evidence
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 tried. Makin v Attorney-General (NSW), [1894] A.C. 57 at p
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
admitted. Moorov v H.M. Advocate, [1930] J.C. 68. In other words,
there was an absence of that striking similarity to which Gibbs C.J.
referred in Sutton v The Queen (1984) 152 CLR 528 at p 535 when
speaking of similar fact evidence adduced to establish identity.
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 L.C. in Makin v Attorney-General
(NSW). 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” Makin v Attorney-General
(NSW) [1894] AC 57 at p 65, principle was later described as a
“fundamental” principle in the law of evidence. Maxwell v Director
of Public Prosecutions [1935] AC 309 at pp 317, 320 and see also
Burrows v the King (1937) 58 CLR 249 at p 253, per Latham CJ.
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”. [1894] AC at p 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
3
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
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 accused (Thompson v The King
[1918] AC 221), e.g. an alibi (Thompson v The King [1918] AC 221)
or the absence of guilty intention (Noor Mohamed v The King [1949]
AC 182 at pp 191-192. In Noor Mohamed v The King (ibid at pp
191-192, 194), the Judicial Committee of the Privy Council
specifically rejected the view which Lord Goddard LCJ had
expressed in R v Sims [1946] K.B. 531. His Lordship had said (ibid
at p 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.”
In Noor Mohamed ([1949] AC at p 194), Lord du Parcq, speaking for
the Judicial Committee, 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 documents. (Reg v
Boardman [1975] AC 421 at p 449, per Lord Hailsham of St.
Marylebone).
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 other
4
([1946] KB at pp 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 purpose (ibid at p 540). The correctness of the decision in
Sims on that footing was accepted in Reg v Kilbourne ([1973] AC
729) and Reg v Boardman ([1975] AC esp. at p 444, per Lord
Wilberforce.)
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 sixteen, and inciting H., a pupil aged seventeen, 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. (ibid, at pp
441, 444, 453, 454, 462.)
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 ([1975] AC at p 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 say (ibid at p 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.”
5
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.
Subsequently, in Director of Public Prosecutions v P ([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 effect (ibid at pp 460461). In Director of Public Prosecutions 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 connexion with an alleged offence against
another. The House of Lords held that the evidence was properly
admitted on the ground that is probative force was so great as to
make it just to admit it notwithstanding that it was prejudicial to the
accused.
Lord Mackay of Clashfern L.C. (with whom the other Law Lords
agreed) rejected the notion that “striking similarity” is an essential
element in every case in allowing evidence of an offence against one
victim to be heard in connexion 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” ([1991] 2 A.C. at p 460).
The Lord Chancellor observed ([1991] 2 A.C. at p 460):
“[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 what 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 (ibid, at p 461):
“Whether the evidence has sufficient probative value to
outweigh its prejudicial effect must in each case be a question
of degree.”
6
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 said (ibid at p 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 connexion. Where the identity of the perpetrator is in issue,
and evidence of this kind is important in that connexion, 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.”
The exposition of the principles in Director of Public Prosecutions v
P represents an authoritative statement of the relevant law as it
presently stands in England.
New Zealand
The approach adopted in Director of Public Prosecutions v P has
been followed by the New Zealand Court of Appeal. (Reg v Accused
(1991) 7 C.R.N.Z. 604; Reg v McIntosh (1991), 8 C.R.N.Z. 514).
Canada
In Reg v Morin ([1988] 2 S.C.R. 345 at pp 369-371; (1988) 44
C.C.C. (3d) 193 at pp 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 effect. But, in Reg v B (C.R.) [1990] 1 SCR 717; (1990)
55 C.C.C. (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 C.J. Wilson, L’Heureux-Dube and Gonthier JJ agreed) (ibid
at p 735; p 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
7
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 connexion, 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.”
The law in Canada, as thus stated (See also Reg V C (M.H), [1991] 1
SCR 763, at p 771; (1991) 63 CCC (3d) 385 at p 392; Reg v B (F.F)
[1993] 1 SCR 697; (1993) 79 CCC (3d) 112), closely resembles the
law as expressed subsequently by Lord Mackay of Clashfern L.C. in
Director of Public Prosecutions v P and as applied in New Zealand.
The Australian authorities
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 disposition (Markby v
The Queen (1978), 140 CLR 108, at p 116; Perry v The Queen
(1982), 150 CLR 580 at p 609; Sutton v The Queen (1984), 152 CLR
at pp 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” (Markby (1978) 140 CLR at p 117; Perry
(1982), 150 CLR at pp 586, 589, 605; Sutton (1984) 152 CLR at p
533) or the probative force of the evidence must clearly transcend the
prejudicial effect of mere criminality or propensity (Perry (1982),
150 CLR at p 609; Sutton (1984) 152 CLR at pp 548-549, 559-560,
565; Harriman v The Queen (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 (Markby (1978) 140 CLR at p 117; Perry (1982),
150 CLR at pp 603, 607, 610; Sutton (1984), 152 CLR at pp 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.
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
8
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 C.J., Wilson and Gaudron JJ, in
Hoch v The Queen ((1988) 165 CLR 292, at p 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 ((1988)
165 CLR at p 295). Mason C.J., Wilson and Gaudron JJ. said (ibid.,
at pp 294-295. This passage was subsequently cited by Dawson J in
Harriman (1989) 167 CLR at p 600):
“Assuming similar fact evidence to be relevant to some issue
in the trial, the criterion of its admissibility is the strength of
its probative force …that strength lies in the fact that the
evidence 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.”
This passage should not be understood as asserting that “striking
similarities” or the other characteristics mentioned in relation to
propensity or similar fact evidence are essential prerequisites of its
admissibility in every case.
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 said ((1988)
165 CLR at p 295):
“Where the happening of the matters said to constitute similar
facts is not in dispute and there is evidence to connect the
accused person with one or more of the happenings, evidence
of those similar facts may render it objectively improbable
that a person other than the accused committed the act in
question, that the relevant act was unintended, or that it
occurred innocently or fortuitously.
The similar fact
evidence is then admissible as evidence relevant to that
issue.”
Where the propensity or similar fact evidence is in dispute, it is still
relevant to prove the commission of the acts charged (Boardman
[1975] A.C., at pp 452, 458-459; Sutton (1984), 152 CLR. at pp 556557; Hoch (1988), 165 CLR at p 295). The probative value of the
9
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 accused. (Hoch (1988), 165
CLR at p 296 (where Mason CJ, Wilson and Gaudron JJ expressed
agreement with the remarks of Dawson J in Sutton (1984) 152 CLR
at p 564). See also Harriman (1989) 167 CLR at p 602). Here
“rational” must be taken to mean “reasonable” (See Peacock v The
King (1911), 13 CLR 619 at p 634; Plomp v The Queen (1963) 110
CLR 234 at p 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 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.
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.
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
10
long as it has some specific connexion 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 suggest in
Boardman ([1975] AC at p 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.
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.
In Harriman v The Queen, Dawson J pointed out ((1989) 167 CLR at
pp 597-598:
“In the past, evidence of a criminal propensity to commit
crime in general, or a particular kind of crime, appears to
have been regarded as inadmissible because it was thought to
be purely prejudicial, and therefore irrelevant, rather than
relevant but excluded because of its prejudicial nature. Upon
this basis it was said that it became admissible only if some
relevance could be shown beyond the propensity itself.”
His Honour observed that, although this view had drawn some
support from Lord Herschell’s statement in Makin, that view had
given way in Reg v Boardman to the opinion that Lord Herschell was
pointing (ibid., at pp 598-599) “to the high degree of relevance
required to render propensity evidence admissible rather than to the
requirement of relevance of a different kind.” That is how Lord
Goddard L.C.J. had stated the law in Sims when his Lordship said
([1946] KB at p 537): “Evidence is not to be excluded merely
because it tends to show the accused to be of a bad disposition, but
only if it shows nothing more.” What his Lordship was insisting on
was that the evidence of bad disposition should also have some
“specific connexion” with the commission of the offence alleged.
That is because, as a matter of policy, the courts have taken the view
that propensity evidence if it does no more is likely to have a very
prejudicial effect and should not be received unless its probative
force exceeds that prejudicial effect. So the evidence of propensity
11
needs to have a specific connexion with the commission of the
offence charged, a connexion which may arise from the evidence
giving significant cogency to the prosecution case or some aspect or
aspects of it. However, as we have already said, the criterion of
probative force as against prejudicial effect and thus of admissibility
is that deriving from Hoch.
The role of the trial judge in admitting propensity evidence.
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. (C.R.)
([1990] SCR 717; (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 innocence. (Sutton (1984), 152
CLR at p 564; Hoch (1988), 165 CLR at p 296; Harriman (1989),
167 CLR at p 602.
[6]
The trial judge must apply the same test as a jury must apply in dealing with
circumstantial evidence. Further, that test requires the trial judge to be satisfied that
there is no reasonable view of the propensity evidence which is consistent with
innocence. The test is a rule or principle of law. There is no doubt that the majority
in Pfennig’s case intended it to have universal application by trial judges in ruling
on the admissibility of propensity evidence. However, if the test is the same test
that a jury applies to circumstantial evidence the reasoning process which the trial
judge must adopt in applying the test is purely one of drawing inferences from facts,
using logic, reason, common sense, and experience.
[7]
As the judgment indicates propensity evidence is circumstantial evidence. It is
always circumstantial evidence because it can never prove the commission of an
offence on its own. It can only rationally do so in conjunction with other evidence.
[8]
No evidence, circumstantial or otherwise, is admissible in the prosecution case in a
criminal trial unless it is relevant to a material fact in issue. I would define a
material fact in issue as an element of the offence charged, the identity of the
offender, or any statutory defence such as accident, mistake etc which might arise
on the evidence.
[9]
It is also necessary to note that propensity evidence which may be conveniently
described as similar fact evidence is not always used to prove the same material fact
in issue in every case. In some cases similar fact evidence is used to prove the
identity of the offender (Sutton v The Queen (1982) 152 CLR 528). In other cases it
is used to prove that the offence charged (or a significant element of it) was actually
committed. (Hoch v The Queen (1988) 165 CLR 292).
12
[10]
The use which a jury makes of circumstantial evidence will vary according to the
nature of the prosecution case and the material fact in issue to which the
circumstantial evidence is relevant. An important distinction needs to be made
between a prosecution case which is wholly circumstantial in relation to the material
fact in issue to which circumstantial evidence is relevant, and a case in which there
is direct evidence of the commission of the offence by the accused to which the
circumstantial evidence is relevant. In a wholly circumstantial case a jury uses each
item of circumstantial evidence with any other relevant items of circumstantial
evidence to decide whether or not the relevant material fact in issue is proved. In a
case in which there is direct evidence from a witness that an accused person has
committed the offence, a jury uses circumstantial evidence as support or
corroboration of the witness giving the direct evidence of the commission of the
offence.
[11]
In all cases it is essential to accurately identify the material fact in issue to which
circumstantial evidence is relevant in order to adopt a rational, logical reasoning
process in deciding whether or not that circumstantial evidence tends to prove the
material fact in issue. In order to demonstrate this difference in reasoning process
from case to case I will discuss a few examples from the decided cases. A
convenient starting point is Pfennig’s case itself. There can be no sensible
discussion without some reference to the evidence because it is only by reference to
the evidence that the material fact in issue to which the propensity evidence related,
and the reasoning process involved in using the propensity evidence to prove that
material fact in issue, can be properly identified.
Pfennig v The Queen (1994-95) 182 CLR 46
[12]
Dieter Pfennig was charged with the murder of MB aged 10 years at or near the
town of Murray Bridge in South Australia on or about 18 June 1989. MB left his
home in Murray Bridge at 1.00 pm on 18 January 1989 to go fishing. He rode his
bicycle, he carried with him his rod and a canvas bag containing fishing equipment.
He was wearing casual clothes and took the family dog. He was seen at a location
known as Sturt Reserve by various people up until about 3.00 pm, although the
evidence was not precise. Later on the afternoon of 18 January MB’s bicycle,
fishing rod and thongs were found neatly stacked at Thiele Reserve which was
upriver and on the other side of the Murray River to Sturt Reserve. His shirt was
found in trees on the bank of the river at the upstream end of Thiele Reserve.
Nearby was a piece of twine tied to a tree stump. It was possible that his dog had
been tied to the stump with that twine. One possible inference from the evidence so
far was that MB had gone swimming at Theile Reserve and drowned. However,
after his disappearance extensive searches were made. It is not necessary to set out
the evidence in detail. It is sufficient to say that the prosecution case on the issue of
whether or not MB was murdered was wholly circumstantial. It is also important to
note that the case went to the jury on the basis that MB had either drowned or had
been abducted for a sexual purpose and murdered by his abductor. It followed from
the verdict of guilty that the jury had been satisfied beyond reasonable doubt that
MB in fact had been abducted for a sexual purpose and murdered by his abductor.
It was accepted that the jury had been properly and adequately instructed that they
could not use the propensity evidence in relation to the issue of whether or not MB
had been murdered. There was no point taken on the appeal to the High Court
about these matters. The appeal to the High Court solely concerned the
admissibility of the propensity evidence on the issue of the identity of the murderer.
13
[13]
The propensity evidence related to an incident which occurred on 30 December
1989, almost 12 months after the disappearance of MB. In 1990 Pfennig pleaded
guilty to having abducted and raped H, a 13 year old boy, at Port Noarlunga. Port
Noarlunga is a seaside town in South Australia approximately 80 kms by road from
Murray Bridge. H gave evidence that he was riding a bicycle past the appellant’s
white Kombie van at Port Noarlunga on 30 December 1989. 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.
[14]
The appellant sexually molested H 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 on that day, the boy managed to escape and telephone his father and
the police.
[15]
The appellant’s former wife gave evidence that he telephoned her twice after his
arrest. He told her that he had been arrested for kidnapping and sexual assault. In a
later conversation after she asked why he had done it he said that he was lonely and
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.
[16]
Returning now to the evidence concerning the disappearance of MB, there was
evidence once drowning at Theile Reserve had been rejected as a reasonable
possibility and abduction for a sexual purpose was accepted as the only reasonable
possibility, the leaving of MB’s equipment neatly stacked at Theile Reserve took on
the appearance of a false trail being laid by MB’s abductor and murderer. As may
be observed in the propensity evidence there was a suggestion that the appellant had
left a false trail after abducting the boy H. Whilst this was a similarity it could not
possibly be considered as a unique signature identifying the appellant as the
abductor and murderer of MB. The laying of false trails by criminal offenders is not
unheard of.
[17]
However, there was other evidence to link the appellant to the disappearance of MB.
Police inquiries after the disappearance of MB led them to the appellant who gave a
statement. On 18 January, the day that MB disappeared, a woman observed the
appellant at Sturt Reserve sitting in his van watching her and two young children
with her. A council employee saw an old white Kombie van speeding away from
Sturt Reserve at about 2.45 pm on 18 January heading in a direction which would
have eventually led to Theile Reserve. A woman who lived in a house overlooking
Theile Reserve heard a commotion below her house between 3 pm and 3.30 pm.
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 that the
noise of the vehicle was similar to the noise made by the appellant’s van. A man
who went to Theile Reserve water skiing at about 4.00 pm on 18 January saw a
Kombie van parked in the vicinity of the place where MB’s bicycle and gear were
found. His description of the van fitted that of the appellant’s vehicle. Daughters of
the appellant gave evidence that the appellant had told them of dealings with MB at
Sturt Reserve on 18 January. He admitted to them that he had spoken to MB at the
Reserve and had patted the dog. One of the daughters said that the appellant had
14
told her that he saw MB twice that day. The appellant told her that MB was trying
to scale a fish with a thong so the appellant lent him a knife to scale the fish when
MB brought the knife back the appellant asked him to put it in the van.
[18]
The majority judgment summarised its view about the cause of MB’s disappearance
as follows at p 486:“Once accidental death is put aside, the evidence points inexorably to
abduction as the cause of MB’s disappearance. The presence of the
bicycle and neatly stacked belongings at Theile Reserve strongly
suggests that the bicycle and the belongings were placed there with
the intention of laying a false trail in order to create the impression
that MB drowned at Theile Reserve. In addition Mrs Gould’s
evidence of hearing the commotion is quite unexplained except on
the hypothesis that MB was abducted and the commotion was
associated with his abduction.
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 majority then went on to consider the case against the appellant which identified
him as the abductor and murderer.
“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 MB 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 a 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 12 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 MB
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
15
arose. The Murray Bridge evidence if accepted established that such
an opportunity arose on 18 January 1989.”
[19]
[20]
[21]
Those familiar with criminal jury trials in cases in which the prosecution case, in so
far as it relates to at least one material fact in issue, is circumstantial, will know that
in such a case a judge is required to direct a jury that they may only find an accused
person guilty if they are satisfied beyond reasonable doubt that the only reasonable
inference to be drawn from the evidence is that the accused is guilty. The mystified
look on a jury’s face when they are told that, in my experience is commonplace. It
is necessary to explain the direction in the context of the particular case involved.
Once the jury in Pfennig’s case had determined that MB was abducted for a sexual
purpose and murdered by his abductor the only reasonable inference consistent with
innocence was that some other person with the requisite means and inclination to
abduct a boy for sexual purposes and a willingness to put such inclination into effect
was at Murray Bridge on the same day and in the same vicinity at about the same
time as the appellant was. There was no evidence suggesting the presence of any
such other person. The jury would have considered the matter according to their
common sense, logic, reason, experience of the world and experience of their fellow
human beings. If they were satisfied beyond reasonable doubt that there was no
reasonable possibility of such another person being in the vicinity then they were
entitled to be satisfied beyond reasonable doubt that the only reasonable inference to
be drawn was that it was the accused who abducted and murdered MB. If a trial
judge is to apply the same test as a jury applies then that must have been the
reasoning applied by the majority of the High Court and by the trial judge.
At p 472 of the majority judgment there is set out two important passages from the
trial judge’s ruling on the admissibility of the H evidence as follows:“In my opinion the evidence of the accused’s presence and behaviour
in the area on January 17 and 18 including his dealings with MB 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 Theile Reserve, and the very unusual nature of the particular
crime in question, combined to render the evidence of the H
abduction admissible in proof of the identify of MB’s abductor. The
nature of the crime in this case is of great importance. The more
unusual the type of crime, the more difficult it may be to accept mere
coincidence as a reasonable explanation. Less additional evidence
may be needed in such a case to prove a connection between the
propensity evidence and the alleged instant crime and so establish
overall the requisite high degree of proof.”
And a little later:“It would, in my opinion, be an affront to common sense to postulate
two persons in MB’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
16
him, however brief, and both leaving Sturt Reserve in separate
vehicles at much the same time.”
[22]
[23]
[24]
It was in this passage, in my respectful view, that the trial judge applied the rule in
Pfennig. The expression “an affront to common sense” was a succinct and practical
way of saying that according to logic, reason, common sense and experience it was
improbable that some other person possessing the requisite characteristics being in
the vicinity at the same time as the appellant. Put another way, it was objectively
improbable on the whole of the circumstantial evidence including the propensity
evidence, that anyone other than the appellant could have abducted MB. That is,
there was no reasonable inference consistent with innocence.
Thus, it may be seen that the rejection by the majority of the need for “striking
similarity etc” in every case was no mere theoretical observation. It was relevant to
that very case, in spite of it being an identity case. The comparable similarities of
laying a false trail, the use of a kombi van and even the sexual purpose of the
abduction in the H case although unusual could hardly be described as a unique
signature of the appellant. Further, in the propensity evidence there was sexual
molestation and no murder. In the MB evidence there was a murder but no
evidence of actual sexual molestation. However, it was the combination of the
propensity evidence and the evidence of the parallel presence of the appellant in the
vicinity which made it objectively improbable that anyone other than the accused
abducted and murdered MB.
A few further observations in relation to Pfennig’s case may be useful. The
propensity evidence in Pfennig’s case was not disputed. However, that did not
particularly affect the admissibility, probative value, and the material fact in issue to
which it was relevant. When considering the question of the admissibility of the
evidence, the trial judge would simply assume the truth of the H evidence and apply
the same reasoning process he did to rule in favour of admissibility. Of course if
the H evidence was disputed it would have been necessary for the trial judge to
carefully direct the jury that they could only act on the H evidence if they were
satisfied that it was true.
Sutton v The Queen (1983-1984) 152 CLR 528
[25]
The appellant was charged before the Supreme Court of South Australia on one
count of attempted rape and seven counts of rape. The first count charged him with
attempted oral sexual intercourse with a 15 year old schoolgirl without her consent
on 1 August 1981. The offence allegedly occurred at the Alberton Primary School
in Queenstown, a suburb of Adelaide. The second, third and fourth counts charged
him with oral, vaginal and anal sexual intercourse with an 18 year old student nurse
without her consent on 6 September 1981. These offences allegedly occurred at the
Woodville Primary School in Woodville South, about two miles from Queenstown.
The fifth, sixth, seventh and eighth counts charged him with vaginal, anal, oral and
vaginal sexual intercourse with a 13 year old schoolgirl, without her consent, at the
Alberton Primary School. At his trial before Mitchell J and a jury, counsel for the
appellant sought a direction that he be tried separately for the offences charged in
the second, third and fourth counts, namely those alleged to have been committed at
the Woodville Primary School. Mitchell J refused the application and ruled that
evidence in relation to each of the counts involving one girl was admissible in
relation to the counts involving the other girls and that all counts were properly
17
joined in the one information. The appellant was convicted on all counts. An
appeal to the Court of Criminal Appeal was dismissed. He appealed to the High
Court. At p 531 Gibb CJ identified the material fact in issue as follows:“As her Honour indicated in the passage to which I have just
referred, the substantial question in issue in each case was that of
identification. No reasonable jury could have failed to be satisfied
that each of the three girls named in the counts had been the victim
of a sexual assault of the kind charged. There was no suggestion that
any of the girls had consented, or that the assailant had believed that
there had been consent to his actions. The applicant’s case was that
he was not the person who had committed the crimes.”
[26]
Therefore the material fact in issue was the identity of the offender in each of the
three cases. Perhaps the best summary of the evidence is contained in the judgment
of Dawson J at p 568 as follows:“In the present case each of the complainants was between the ages
of 13 and 18 years at the time the offences were committed. Each of
the offences was committed in a school yard, two sets of offences in
the same school yard. The first complainant identified the accused as
her assailant. The second complainant said that the assailant was in
his early 20s and the third said he was 18 or 20. Each of the
complainants estimated his height to be about six feet and said that
he was of medium build. The first and third complainants said that
their assailant had blonde hair; the second complainant said that her
assailant had light brown or dark blonde hair. All three said his hair
was, in effect, shoulder length. The first complainant said that her
assailant’s hair was straight but the other two complainants said that
their assailant’s hair was wavy. Each of the first two complainants
said that her assailant smelt of cigarette smoke. The third said she
could not smell anything on the breath of her assailant but said that
he asked her if she had seen his matches. In each case the assailant
was a lone offender on foot who grabbed his victim from behind on
or after he had been behind her and placed his hand, in two instances
his right hand was specified, over her mouth. In the case of two of
the complainants the offender placed his left arm around each girl, in
the one instance around her arms or body or both and in the other
instance pinning her arms. In the case of the third girl the assailant
placed his hand around her neck. Each girl was told not to scream or
to shut up or she would be killed. In each case the complainant was
restrained by one of the offender’s arms whilst she was taken to the
place of the offence or offences. In each case the place of the
offence or offences was a school yard within a short distance from
the place of abduction. Each offence took place within a confined
geographical area. The offence or offences in relation to each of the
complainants took place at intervals of some five or six weeks. In
each case the assailant left the complainant at the place of the offence
or offences and made off in the same direction. The first
complainant’s assailant attempted oral sexual intercourse. In the
case of each of the second and third girls the assailant had oral, anal
and vaginal sexual intercourse.”
18
[27]
All of the justices of the High Court agreed that the evidence was admissible and
the offences properly joined because the only reasonable inference to be drawn was
that the same person was responsible for all three groups of offences. This therefore
meant that if the jury was satisfied beyond reasonable doubt that the same person
committed all three groups of offences and they were satisfied beyond reasonable
doubt that the appellant committed any one group of offences they were entitled to
be satisfied beyond reasonable doubt that he committed the others.
[28]
There was nothing in the way of an unusual modus operandi in the manner in which
each incident was carried out. But they were very similar without being identical.
Further, although the description of each assailant was consistent it could have fitted
a number of young men. The probative value of the combined evidence was the
objective improbability, according to reason and experience, of two or three
different young men of that description all committing different sets of offences in a
similar way in the same area within such a short space of time.
[29]
[30]
[31]
Dawson J said at page 567, “It is not, I think, a case in which any one circumstance
common to the various offences was sufficiently striking to eliminate any
reasonable possibility of coincidence. Rather it was the accumulation of common
circumstances which had that effect.”
However, there was some direct evidence that the appellant committed each of the
groups of offences. The complainant in relation to the first offence gave evidence
that the applicant was the man who attacked her. She said that she saw him twice
afterwards in the street, but did not tell the police until they came around to tell her
that they had caught the man who had attacked her. She identified the applicant
again in Court. VAH the complainant in the second group of offences was not able
to identify her assailant. However, in her case one Christine Dexter gave evidence
that the applicant had confessed to her that he had committed the rape at Woodville.
The third victim DMT pointed out the applicant as her assailant to the police on the
night on which the offences were committed and identified him again in Court.
None of the judgments in the case discuss the way in which this evidence may have
been used together to prove the identity of the appellant as the offender. The brief
statement of the circumstances of the identification of the appellant by LK suggest
that it could have been unreliable and subconsciously affected by suggestion. The
identification of the appellant by VAH as her attacker was made very soon after the
attack but also may have been vulnerable to the suggestion that she was mistaken.
The judgments do not make it clear as to the nature of the attack upon the alleged
confession made to Christine Dexter. However, the point is that once the jury was
satisfied beyond reasonable doubt that the identification of the appellant as the
offender in any one of the three incidents was reliable and accurate they were
entitled to be satisfied beyond reasonable doubt that the appellant committed all of
the offences provided they were satisfied beyond reasonable doubt that the same
person committed all three groups of offences.
It is useful at this stage to discuss both Pfennig and Sutton because both cases
involve circumstantial evidence relevant to the issue of identification. In my view
there is a fundamental difference between these cases and cases such as Makin and
Martin v Osborne. In both Pfennig and Sutton the number of similar instances was
of little consequence. In Pfennig there was only one incident of propensity
evidence. Coupled with the evidence of Pfennig’s contact with the deceased boy,
that was sufficient. However, supposing there had been six or seven instances very
19
similar or identical to the H evidence and spread both before and after the
disappearance of MB. That might well have made a conclusion that Pfennig had a
propensity identical to that of the person who abducted and murdered MB more
certain. But as a matter of logical reasoning it could not have made it any more
improbable that another person with a similar propensity was in the vicinity and in
contact with MB at the time he disappeared. In my view numbers don’t count much
or at all in the specific circumstances of cases like Pfennig.
[32]
[33]
Similar considerations apply in relation to the case of Sutton. Supposing there had
been ten instances of rape in the same two primary school grounds by persons
adopting an essentially similar mode of attack as those described by the three girls in
Sutton and of similar appearance and characteristics as the assailants described by
the three girls in Sutton. One may assume that the court would have concluded that
there was no reasonable inference to be drawn other than that the same person
committed all ten groups of offences. However that would not have made the case
against Sutton as the assailant any stronger. If for instance there was only one
incident in relation to which there was evidence identifying Sutton as the offender,
the fact that there might have been three, 10 or 100 incidents all committed by the
same offender would not make that identification any stronger. In some
circumstances however if there were a number of incidents in respect of which
Sutton had been identified as the offender by direct evidence, the evidence of each of
the witnesses giving such direct evidence may have supported each other. This
latter aspect was not a matter for consideration by the High Court in the hearing of
the appeal.
Further, although in both Sutton and Pfennig the propensity evidence was relevant
to prove the identity of the offender the reasoning process involved in the
application of the Pfennig rule was different as between the two cases. In Sutton it
was that the only reasonable inference was that the same person committed all three
groups of offences. In Pfennig it was that there was no reasonable inference that a
person other than the appellant committed the murder.
Makin v Attorney-General (NSW) 1894 A.C. 57
[34]
No discussion on the admissibility of propensity evidence would be complete
without mentioning the famous case of Makin & Wife which was the first major
case dealing wit the test for the admissibility of propensity evidence. The judgment
of the Privy Council was delivered by Lord Herschell L.C. It dealt primarily with
the test of admissibility. As to the evidence and reasoning process involved in that
case the Privy Council judgment gives very little information. Once the test was
accepted the Privy Council clearly took the view that the evidence was admissible
and dismissed the appeal out of hand. In order to ascertain some of the detail of the
evidence and the reasoning process involved it is necessary to look to the judgment
of Windeyer J in the Full Court of the Supreme Court of New South Wales.
[35]
John and Sarah Makin were charged with the murder of a male infant said to be the
illegitimate son of a woman named Amber Murray. Murray’s child was born on 30
May 1892. She advertised the child for possible adoption. The advertisement was
answered by Sarah Makin who gave a false name. On Saturday, 25 June, Murray
went to the home of the Makins in Redfern in Sydney where she saw both of them.
She told them that she had a child for them to adopt. Mrs Makin said that she
would take the child and Mr Makin said that they would bring it up as one of their
20
own, educate it and they would take it because Mrs Makin had lost a child of her
own two years old. The Makins declined to take any clothing for the child. They
reassured Murray that they would take care of the child. They promised that she
could see the child once a week. They would even take the child to her if she could
not come to them. Mrs Makin said that they were soon moving to a healthier place,
Hurstville. Murray said that she did not mind them getting a three shilling premium
as long as they took care of the child.
[36]
A few days later Makin and one of his daughters went to the home of Murray.
Murray did not have the premium at that time but Makin said that they would take
the child then. He said that he would come back for the premium. He took the
child. Later that evening Murray went to the house. She took some papers, the
premium and some clothes and gave them to the Makins. Makin reassured Murray
that she could see the child when she wished. They showed Murray the child on
that night and she left. She never saw the child again. She said that when she gave
the child to the Makins it was in good health, a fine child, it had no sores. She gave
evidence that the Makins used false names during this contact. There was sporadic
contact between Murray and the Makins for a short period thereafter but the Makins
appeared to be avoiding her. Instead of moving to Hurstville they moved to
MacDonald Town about 7 or 8 miles away. In summary the deceased infant having
been delivered to the Makins on the night of Monday, 27 June, the Makin family on
the following Wednesday, 29 June on a dark and rainy night removed from the
house where the deceased baby was last seen alive to MacDonald town. Clarence
Makin, a daughter of the prisoners who knew the deceased baby well swore that it
was not removed with the family. Other important evidence concerning the Murray
infant was described by Windeyer J as follows:“There was indeed evidence given showing that John Makin on 4
July came to Mrs Patrick’s, the midwife who nursed Murray with a
baby which he represented to be Murray’s but which was ill and
covered with sores. As it was admitted however by the prisoners’
counsel in argument before us that there was evidence showing that
the deceased baby was found buried in the back yard of the house in
George Street, Redfern where the deceased baby was last seen alive.
The presumption is overwhelming that the deceased baby was dead
and buried before the prisoners left the house on the night of 29th and
the representation by the prisoner John Makin on 5th July that another
baby was that child can only be regarded as the fabrication by him of
false evidence to hide the fact of the death and secret burial of
Murray’s baby and to account for its death on the possible
subsequent discovery of it by showing that it was ill and covered
with sores when it was last seen.”
[37]
On 11 October a man engaged in digging a drain in the yard of the house occupied
by the Makins at MacDonald Town to which they had removed on 29 June and
which they left about the middle of August found the remains of two infants.
Further search was made which resulted in the finding of five other bodies buried in
the same yard. On 9 November a search was made of the yard of the house in
George Street Redfern where the Makins had lived when they took possession of
Murray’s child and prior to their removal to MacDonald Town. The corpses of four
babies were found. The clothing on one of them was so positively identified as to
leave no doubt that it was the body of Amber Murray’s child. Subsequently the
bodies of two more babies were found buried in the yard of another house in which
21
the prisoners lived after leaving the house in Macdonald town. There was further
evidence that no deaths had been registered by the Makins for either of the houses
in Redfern or MacDonald Town. There was evidence that Mrs Makin had pawned
articles of clothing which had been given to her by Amber Murray when handing
over the Murray infant to her care. There were therefore a total of thirteen bodies of
infants found buried in three different yards of homes occupied by the Makins. One
of those was positively identified as being the infant child of Amber Murray.
Although the child of Amber Murray could be positively identified the other bodies
could not. All bodies were in such a state of decomposition that no cause of death
could be identified.
[38]
The prosecution also called evidence from four women, the mothers of illegitimate
children whose babies had been given into the care of the Makins and who had
never been seen again. In each case the mothers paid small financial premiums to
the Makins. There was evidence of deception and the use of false names by the
Makins from these women.
[39]
The Makins were charged with one murder only, that of the child of Amber Murray.
Therefore evidence relating to the location of the bodies of other infants and the
circumstances of other infants coming into the care of the Makins was propensity
evidence. Although the Makins did not give evidence the case advanced by them at
trial was that the Murray child had died of natural causes or perhaps put more
accurately, the prosecution could not prove beyond reasonable doubt that the child
was murdered. There was no serious issue that if the child had been murdered it
must have been the Makins who did it.
[40]
The test for admissibility adopted by Windeyer J is no longer relevant. However,
the reasoning process where by the propensity evidence could be used to prove the
murder of the Murray infant was a matter of logic, reason and objective experience
rather than a matter of law. Windeyer J offered an analogy as follows:“Cases can easily be suggested where the fact of other deaths being
proved might, though the mode of killing was obscure, leave no
doubt whatever that the death in question at the trial was a murder.
For instance, if A is found cremated by a camp fire so completely as
to leave no trace of his mode of death, on defence by B, who was the
last person seen at the camp fire with A; that A having died of
natural causes, he cremated him because he had no means of burying
him, and did not wish to allow wild dogs to devour the corpse,
evidence that other bodies of men seen travelling with B were also
found totally cremated at other places at which the prisoner camped
along the road taken by him, would surely be evidence to show that
A had been murdered, and had not died naturally as a series of
natural deaths of healthy men when camping out with a travelling
companion and their subsequent cremation, would be so
extraordinary as to leave no doubt when coupled with motives or
other evidence that they had been murdered.”
The expression “so extraordinary” in this context means “improbable” according to
logic, reason, common sense, and experience.
[41]
The learned judge went on to discuss the Makin case itself as follows:-
22
“A family might be unfortunate enough to take a house in the back
yard in which babies had been buried by a former tenant; but no-one
could believe that it was by mere coincidence that a person took
three houses in the backyards of which former tenants had secretly
buried babies. The finding of such corpses secretly disposed of, like
the finding of the cremated bodies at the different camp fires in the
case suggested, went to prove not only that the death of Murray’s
baby was unnatural but that the body had been secretly disposed of to
conceal the crime, which caused the unnatural death, in as much as
people are not in the habit of concealing the death of infants dying
naturally by burying them in backyards.”
The expression “no-one could believe” in this context means “improbable” according
to logic, reason, common sense and experience.
[42]
[43]
It would be useful to apply the Pfennig test to the evidence in Makin’s case. In
essence there was evidence that five children including the Murray infant were
given up to the Makins for adoption with the payment of small premiums
insufficient to pay for their care for other than a relatively short period. There was
evidence that the Makins had been deceptive in a variety of ways about their
possession of such children and had behaved deceptively to prevent the mothers of
children seeing them after they had been given to the Makins. There was then the
evidence of the 13 infants including the Murray infant being found buried in the
yards of homes occupied by the Makins. As a matter of logic, reason, common
sense and human experience it would be fanciful to think that any of them died of
natural causes. The only reasonable inference therefore was that they were all
murdered and that included the murdering of the Murray infant with whose murder
they were charged.
An important consideration was the number of “propensity incidents” involved. It
was certainly not the only important consideration. However, if for example, only
two infants had been found buried in a yard occupied by the Makins that might not
be enough to overcome as a reasonable possibility that they had both died of natural
causes and had therefore not been murdered. Secondly, there may be a threshold
number in some cases depending upon the totality of the evidence. For instance, in
Makins case there may have been a number of bodies found (say four) which,
coupled with the other evidence, might have excluded any reasonable inference that
they all died of natural causes but four might not be enough to exclude a reasonable
possibility that one of them might have died of natural causes and the others
murdered. In other words, if the evidence in the Makins case had left open the
reasonable possibility that one of the infants had died of natural causes then that one
could have been the Murray infant with whose murder the Makins were charged. It
is obvious that the Supreme Court of New South Wales, the Privy Council, and the
jury at the Makins trial considered that on the whole of the evidence including the
numbers the only reasonable inference to be drawn from the whole of the evidence,
including the numbers, was that they had all been murdered.
Martin v Osborne (1936) 55 CLR 367
[44]
The respondent was charged under the Transport Regulation Act 1933 of Victoria
that he was on 1 November 1935, the driver of a commercial passenger vehicle
which was operated on a public highway without the vehicle being licensed in
23
accordance with the Act. The bench of the High Court consisted of Latham CJ,
Stark, Dixon, Evatt and McTiernan JJ. At p 373 Dixon J set out the essential issues
and summarised the relevant evidence as follows:“In support of the prosecution ample proof was adduced that the
defendant drove a motor vehicle on a public highway, that it carried
passengers and that it was not licensed as a commercial passenger
vehicle. The question in the case relates to the sufficiency and
admissibility of the evidence offered to establish that the passengers
were carried for reward. The charge was that he operated a car – a
hupmobile – between Ballarat and Melbourne on Friday 1 November
1935. The proof given was circumstantial. The circumstances relied
upon were briefly these. The defendant’s brother named Ernest
Osborne had a commercial passenger licence in respect of a six
cylinder Chrysler car. This car with a number of other cars was seen
to stand in one of the principal streets in Ballarat outside a tearoom
or sweet shop which bore a sign to the effect that the 8 cylinder
sedan cars of Osborne’s Motor Service from Ballarat to Melbourne
left there daily. Not far away was a garage. On the morning on
Wednesday, 30th October 1935 the defendant and the hupmobile car
and other cars were outside the shop. Baggage was handed in and
out of the shop and into various cars. The defendant who took part
in handling the baggage placed some of it in the Hupmobile in which
four passengers sat. A lady with a suitcase then alighted from a
passing bus and the defendant took her suitcase to the car in which
he gave her a seat. He then drove down to Melbourne where he
dropped his passengers at various points, some of them taking rugs
or suitcases. On the same afternoon the defendant and the
Hupmobile car was stationed at the corner of Spencer and Collins
Street in Melbourne. At intervals three passengers got into the car
which the defendant then drove off on the road to Ballarat. In
Footscray the car picked up another passenger whom the defendant
helped in. The car was not followed further than Backus march. On
the following morning, Thursday 31st October, the defendant and the
Hupmobile were outside the shop in Ballarat. A passenger sat in the
car. The defendant spoke to another man who drove the car away. It
was returned shortly with two more passengers and a quantity of
luggage. After standing a little, it was driven off, but whether by the
defendant or someone else did not appear at any rate by direct
evidence. Two hours later it was standing empty at the corner of
Spencer and Collins Street in Melbourne with the defendant beside
it. An hour passed and it was still there but with people init. An
Auburn car stood near it. The Hupmobile and its passengers were
then driven off but not by the defendant, who remained standing in
the street. What he did then did not appear but next morning the date
laid in the charge, he was outside the shop in Ballarat. The Auburn
car was driven up to the shop carrying passengers and an hour or
more later it carried down to Melbourne a number of passengers,
including the defendant who rode next to the driver. On the
afternoon of that day the Hupmobile and the Auburn cars were again
standing at the corner of Spencer and Collins Street and the
defendant was there also. Two ladies and a child were seated in the
24
Hupmobile. The Auburn drove off first. A little later the Hupmobile
with the defendant in charge began its journey to Ballarat. On the
outskirts of Baccus Marsh it stopped to pick up a youth. The car
would not start again and the youth went for a mechanic who
remedied the defect. It carried the youth as a passenger to Ballarat
where he was dropped at the corner of the street. A lady and a child
were dropped at another point. There the defendant spoke to the
officers who were following him and said that they need not follow
him further as the remaining lady was a friend of his wife’s and he
was taking her home. As it was raining hard the officers took his
word for it.”
[45]
Thus the evidence of the inspectors of what occurred on 1 November 1935 was
circumstantial evidence relevant to the offence charged. What occurred on the two
previous days was propensity evidence. I am not so much concerned with the basis
upon which Dixon J concluded that the evidence was admissible but the reasoning
process which allowed it to be used in proof of the offence charged. However, as
may be observed he adopted the test which although expressed a little differently,
appears to be not dissimilar to that mandated by the majority judgment in Pfennig’s
case. At p 375 Dixon J said as follows:“If an issue is to be proved by circumstantial evidence facts
subsidiary to or connected with the weighing fact must be established
from which the conclusion follows as a rational inference. In the
inculpation of an accused person the evidentiary circumstances must
bear no other reasonable explanation. This means that according to
the common course of human affairs, the degree of probability that
the occurrence of the facts proved would be accompanied by the
occurrence of the facts to be proved is so high that the contrary
cannot reasonably be supposed. The circumstances which may be
taken into account in this process of reasoning include all facts and
matters which form constituent parts or ingredients of the transaction
itself or explain or make intelligible the course of conduct pursued.”
[46]
At p 367 his Honour went on as follows:“The frequency with which a set of circumstances recurs or the
regularity with which a course of conduct is pursued may exclude as
unreasonable any other explanation or hypothesis than the truth of
the fact to be proved. For example, the probability that the neglected
condition of a barber’s implements was the cause of his customer
contracting barber’s itch becomes much higher when it appears that
about the same time two more of his habitual customers also
contracted the disease (Hayles v Kerr). If four close relatives of a
woman dwelling in her house and eating meals prepared by her, die
of arsenic or poisoning, one after another within a few month the
inference that she wilfully administered the poison has more support
than if one death only occurred in such circumstances. (R v Geering).
The discovery of a number of dead bodies of infants buried in the
ground at different premises lately occupied by a baby farmer greatly
increases the probability of her having murdered an infant entrusted
to her charge which has disappeared (R v Makin); (R v Knaoor). An
inference from circumstances that on a specific occasion an act of
adultery or incest took place between a man and a woman may be
25
uncertain until it appears that a previous sexual relationship existed
between them but the addition of that fact may remove doubt. (R v
Ball; McConville v Bayley; R v Goldworthy). For a medical man or
midwife frequently to procure abortion makes it unlikely that his or
her proved association with a specific case of abortion was not
criminal (R v Bond; R v Graham). The repetition by an accounting
party of the same error or kind of error in calculating at excessive
amounts the totals of his disbursements makes it probable that the
overstatement was fraudulent (R v Richardson; R v Proud; R v
Garsed; R v Hiddilston; Hardgrave v The King; R v Finlayson). In
the same way repeated utterings of coins or notes in fact counterfeit
or forged, and repeated obtainings of money by representations in
fact untrue increased the probability that on a specific occasion a
coin was uttered or a pretence made with guilty knowledge and
intent (R v Whiley; R v Forster; R v Weeks; R v Francis).
In the present case the evidence to which the defendant objected
when combined with that describing the actual journey laid as the
offence shows that for three consecutive days the Hupmobile car
behaved exactly as service cars do, and that for the greater part of
that time it was under the control of the defendant. It appeared to be
following a regular course of business in standing at convenient
rendezvous for passengers, picking up and setting down passengers
where they desired at either end of the journey, carrying their
luggage and plying between large cities upon a set route. The place
of rendezvous at Ballarat exhibited a sign notifying that a service
was conducted from that point, although, it is true, by cars of a
description to which the Hupmobile did not answer. Different
passengers were carried on each journey and they possessed no
common characteristic. In my opinion such evidence was admissible
because it tended to show that the defendant was operating the car
regularly for the carriage of passengers between the two cities, and
thus to make it improbable that the passengers were not carried for
reward.”
[47]
Just as in Makins case it may be observed that the number of similar instances was
an important factor relating to the probative value and therefore the admissibility of
propensity evidence.
Plomp v The Queen (1963) 110 CLR 234
[48]
Plomp was charged and convicted that on 24 February 1961 at Main Beach
Southport Queensland he wilfully murdered his wife. The accused and his wife
were bathing together alone about dusk in the surf opposite a private hotel with a
plate glass room facing out to sea when she drowned. The surf was not dangerous
at the time, although there was a sweep towards the south. The deceased was a
good swimmer with some experience of surfing. There were no eyewitnesses to the
drowning and the only accounts of what happened were those given by Plomp to
persons who gave evidence. They were to the effect that when he and the deceased
were in the sea about waist deep in a gutter between an inner and outer sandbank
upon which the waves were breaking, he suddenly felt an undertow which swept
him off his feet, or in another version, a wave struck him and knocked him down
26
and he then saw his wife, who was six feet away from him, sucked under a wave; he
went to her aid but was only able to slip his hand in the shoulder strap of her bathing
costume which broke, he was dumped again and lost sight of her, he dived for her in
vain and then left the water and ran into a café.
[49]
[50]
The proprietor of the café gave evidence that Plomp, dressed in bathing costume ran
into the café about 7.15 pm and kept saying that he had lost his wife in the surf.
After a search instituted by Plomp and by the café proprietor who contacted the
police, the wife’s body was found some time later about half a mile south of the
place where Plomp said they had been bathing. When her body was found her
bathing costume was hanging down, both shoulder straps being unbuttoned. The
only mark on the wife’s body was a superficial abrasion on her forehead which
could have been caused by contact with the sand. No marks of violence were
observed on Plomp’s body. There was medical evidence of the presence of fine
froth in the wife’s lungs and that it indicated that she had been breathing when she
was drowning and that her death was due to asphyxia which would probably have
taken four or five minutes.
There was no doubt on the evidence that Plomp’s wife had drowned. The issue was
whether she had drowned accidentally or had been deliberately drowned by Plomp.
There was no issue about identification because he was the only one with her at the
time. The application for special leave to appeal to the High Court by Plomp was
refused. The leading judgment was given by Dixon CJ. A reading of the judgments
suggests that the real point on appeal was the admissibility of evidence of motive
rather than the admissibility of propensity evidence, although some propensity
evidence was led. At p 241 Dixon CJ said as follows:“In the condition described by the evidence it was not likely that a
fairly good swimmer not unfamiliar with the surf would have been
lost unless his or her efforts at recovery were in some way
obstructed; but if the facts had rested there it would be indeed
difficult to find that the drowning of the swimmer was caused in
anyway by the person with whom she was swimming. But the facts
do not rest there. It was proved that Plomp had formed a liaison with
another woman whom he had promised to marry, that he had
represented himself as a widower and that he was continuing the
liaison. In the circumstances proved by apparently credible evidence
it was open to conclude that the Plomp had the strongest reasons to
be rid of his wife. It is unnecessary to traverse all the circumstances
in detail. They were placed before the jury and doubtless considered
by them. It is enough to say that on the whole I think it was
reasonably open for the jury to be satisfied beyond reasonable doubt
that the deceased had been drowned as a result in some way of the
conscious agency of the applicant Plomp. I therefore think the
verdict of wilful murder is sustainable on the evidence.
It is objected that Plomp’s motives cannot be taken into account until
it is shown by evidence that in some physical way his actions were
responsible for his wife’s death. There is nothing, it is said, to show
that anything he physically did impeded her emerging from the surf
or recovering her equilibrium. Until that is shown, evidence of
motive cannot be used, so it is said, to prove guilt. There is in my
opinion no legal doctrine to that effect. All the circumstances of the
27
case must be weighed in judging whether there is evidence upon
which a jury may reasonably be satisfied beyond reasonable doubt of
the commission of the crime charged. There may be many cases
where it is extremely dangerous to rely heavily on the existence of a
motive, where an unexplained death or disappearance of a person is
not otherwise proved to be attributable to the accused; but all such
considerations must be dealt with on the facts of the particular case.
I cannot think however that in a case where the prosecution is based
on circumstantial evidence any part of the circumstances can be put
on one side as relating to motive only and therefore not to be
weighed as part of the proofs of what was done. In this case the
word “motive” was used during the argument and no doubt at the
trial to cover much material. But it is not clear to me whether some
of that material did not go somewhat further than what is ordinarily
comprised under that word. In the course of the summing up the
learned judge who presided at the trial said to the jury: “you must
remember that before you can use evidence of motive, there must be
a sufficiency in the evidence to establish to you that this death was
not an accidental death, to establish to you that he did something in
order to get his wife into the water, and having got her there, he
wilfully murdered her”. This appears to me to go too far in the
accused’s favour. I think that if the whole of the evidence is read
and what the accused said and did both before and after his wife’s
drowning it is considered with all the circumstances of her drowning
a reasonably strong circumstantial case is made against him, but I
cannot think that this is so if you omitted from it all the detailed
circumstances of his dealing with the other woman.”
[51]
[52]
It is clear that this was a circumstantial case. The main point made in the judgment
is that in a circumstantial case it is necessary to look to the whole of the evidence.
The admissibility of evidence of motive may be used to prove the fact of murder.
Its admissibility does not depend upon proof of murder by the other evidence. I
have discussed this case because it is mentioned in the majority judgment in Pfennig
and is referred to specifically by the High court in the case of Phillips. This case is
important for the summary by Dixon CJ of the reasoning process which appears at p
243 as follows:“In the present case it appears to me that if the jury weighed all the
circumstances they might reasonably conclude that it would put an
incredible strain on human experience if Plomp’s evident desire to
get rid of his wife at that particular juncture, presaged as it was by
his talk and actions, were fulfilled by her completely fortuitous death
although a good swimmer and in circumstances which ought not to
have involved any danger to her.”
In his use of the expression “It would put an incredible strain on human experience”
Dixon CJ was succinctly saying that according to logic, reason, common sense, and
experience there was no reasonable possibility of the appellant’s wife having
drowned accidentally. Put another way it was so objectively improbable that, in the
whole of the circumstances, the appellant’s wife drowned accidentally that the only
reasonable inference to be drawn from the whole of the evidence was that the
appellant murdered her.
28
[53]
Plomp’s case is not directly relevant to the admissibility of the propensity evidence
in the instant case. I have however discussed it along with earlier cases to
demonstrate that the reasoning process involved in applying the Pfennig test of
admissibility will vary according to the particular circumstances of the case under
consideration and particularly the material fact in issue to which the propensity
evidence is said to relate. I have also discussed it because it is expressly referred to
with approval in the majority judgment in Pfennig and the unanimous judgment in
Phillips.
Harriman v The Queen (1989) 167 CLR 590
[54]
The appellant was charged and convicted of five counts of being knowingly
concerned in the importation of heroin contrary to the provisions of s 223B(d) of the
Customs Act 1901 (Cth). The heroin had been posted by a man named Martin from
London in April 1987 in five parcels addressed to five separate addressees in
Western Australia. The importation of heroin by Martin was not in dispute. What
was in dispute was whether the applicant Harriman had been knowingly concerned
in that importation. The question in issue was the admissibility of evidence that
Harriman had been involved in the sale and use of heroin during the latter months of
1986 or the earlier months of 1987. Evidence relating to the offences charged is
adequately summarised at p 592 in the judgment of Brennan J as follows:“Martin and Harriman were the principal shareholders and directors
of a mining company which was being pressed by its creditors.
According to Martin who was the principal prosecution witness, the
importation of heroin was resolved upon by Harriman and himself as
the means of relieving the company’s financial situation. It was
common ground that in March 1987 Harriman went to Thailand, that
in April 1987 Martin travelled to Bangkok where he met Harriman
by arrangement, that the two of them travelled together to Chiang
Mai by bus overnight and returned by air to Bangkok on the next
evening, and that Martin left for London whence he posted the heroin
to Australia. Martin said that he obtained possession of the heroin
during this brief visit to Chiang Mai. If Martin was to be believed
Harriman had arranged for a quantity of heroin to be available for
collection in Chiang Mai, arranged for a man to deliver five packets
of heroin to Martin in a room in a residential in Chiang Mai (no
payment being made by or sought from Martin), assisted Martin to
break up the heroin into five separate amounts concealed in drawing
sets and instructed Martin to take the heroin to England from where
it was to be posted to the addresses in Western Australia, two of
which had been provided by Harriman.”
[55]
Obviously if Martin was believed the appellant was guilty of the offences charged.
However Martin’s evidence was challenged in some respects. His own participation
in the importation of the heroin was not challenged. However Harriman advanced
the case that Martin had acted independently of him and he had simply met and
travelled with Martin in Asia as a sightseer. In light of this case being put to Martin
the prosecutor sought leave and was permitted to lead additional evidence
concerning dealings between Martin and Harriman. This was important because
Martin was obviously an accomplice in the importation and his evidence would
have needed to be scrutinised very carefully before being accepted. In particular,
29
important questions of corroboration of Martin’s evidence potentially arose. There
was already some evidence relating to the importation itself. A witness Lisk gave
evidence that in February 1987 he and Harriman had discussed possible ways of
getting heroin into the country and that one method suggested was importing heroin
“through the post”. Lisk gave the appellant two addresses to use. They were the
two addresses which Martin said the applicant had given him in Bangkok. While
the applicant was overseas he spoke to Lisk by phone and told him that “things
could be happening”. Evidence of one Gawthorpe disclosed that around June or
July 1986 Harriman told him that his mining company needed money and one
solution would be to import heroin from Thailand. He gave evidence of further
discussions involving himself, Lisk and Harriman about getting a good grade of
heroin at a good price. There was discussion about methods of bringing the heroin
into Australia including mailing it. Gawthorpe said that in November 1986
Harriman offered him $10,000 to do a run to get heroin.
[56]
The evidence, the admissibility of which was in dispute, came from Lisk and
Gawthorpe.
Essentially they gave evidence of the purchasing heroin in
circumstances that suggested that Martin and Harriman were engaging in a joint
venture dealing in heroin in late 1986 and early 1987. It was clearly propensity
evidence. In separate judgments all of the justices of the High Court held that the
evidence of Harriman’s prior involvement with Martin in the sale of heroin was
admissible on the ground that it was highly probative of the criminal character of
the accused’s association with Martin in Thailand in April 1987. Some of the
justices took the view that evidence that Harriman had merely used heroin on prior
occasions was not admissible. In the end result the appeal was dismissed.
[57]
In this case the propensity evidence took on a different complexion to the
propensity evidence discussed in previous cases. In all of the previous cases
discussed the propensity evidence was led as part of a circumstantial case to prove
the material fact in issue. In this case the evidence against Harriman to prove his
involvement in the importation of heroin was direct evidence coming from Martin.
If the jury was satisfied beyond reasonable doubt that Martin was telling the truth
about Harriman’s involvement in the importation then they would no doubt find
Harriman guilty. However, Martin’s evidence in that regard was disputed. The
function of the propensity evidence was to corroborate Martin’s evidence as to the
material fact in issue of Harriman’s involvement in the importation of heroin. If
one were to apply the Pfennig test in this particular case, namely there is no
reasonable hypothesis consistent with innocence, the evidence was admissible if the
only reasonable view of it was that Martin was telling the truth about Harriman’s
involvement in the heroin importation. Of course the propensity evidence would
not be looked at in isolation. It would be looked at in light of other evidence which
might have suggested direct involvement on the part of Harriman with the
importation.
Multiple complainants
[58]
I propose now to discuss cases in which an accused is charged with multiple
offences against multiple complainants such as Hoch’s case. The majority
judgment in Pfennig emphasises that propensity evidence is circumstantial evidence
and must be looked at in light of its character as such. It is therefore appropriate to
examine the use which is made of more conventional circumstantial evidence in a
30
case which is not a circumstantial case but in which direct evidence is given and
which, if believed, proves all of the material facts in issue. A hypothetical example
would be a rape case in which a complainant might give the following basic
evidence:“My name is C and I am 19 years of age. On Saturday night 14
October 2006 I went to a nightclub. Whilst there I had a few drinks,
danced and spoke to people who I knew. At about 11.00 pm the
accused A approached me. He struck up a conversation with me and
we had a lengthy conversation about various matters which went on
for a couple of hours. We had a couple of drinks together and a
couple of dances. We became friendly and he seemed like a nice
person. At about 1.00 am I decided I wished to go home and told A
that I was going to do so. A suggested that we walk to a taxi rank
and each get separate taxis to our homes. He seemed a decent person
so I agreed. We left the nightclub and started to walk towards a taxi
rank. The direction in which we walked took us past a park. As we
were walking along beside the park he grabbed me by both arms and
violently dragged me into the park about 50 or 60 metres from the
street. In that location it was dark and isolated. Whilst he was
dragging me along I tried to pull away from him and kept yelling at
him to stop. I was unable to get free and he took no notice of me.
About 50 or 60 metres into the park he punched me hard on the right
side of my face just below my eye. This hurt and caused me a great
deal of pain. I started to cry. He then punched me hard in the belly,
this also hurt, caused me pain, and caused me to lose my breath. He
then pushed me hard in my chest so that I fell backwards to the
ground. He then knelt down over the top of me and held me down. I
was still crying. I tried to struggle but I was weak from the blows he
had struck and he was too strong for me. I tried to tell him to stop
repeatedly but he took no notice. He then pulled up my dress and
quickly pulled off my knickers. I was shaking my legs around but he
was too strong and managed to remove my knickers completely. He
then inserted his penis into my vagina and had sexual intercourse
with me until he ejaculated. All the time I was crying, struggling and
telling him to stop. He was too strong for me and I could not get free
or get him off me. He took no notice of me. As soon as he
ejaculated he quickly stood up, did up his pants and ran off out of the
park. I lay there for a little while and then staggered out onto the
street where I stopped a passing taxi. I told the driver I had just been
raped and he took me to the police station.”
[59]
[60]
On A’s trial for the offence of rape there would be two material facts in issue. One
would be the carnal knowledge (or sexual intercourse); the other would be the
absence of consent. Assuming C gave the above evidence at the trial, this is not a
circumstantial case. It was a case in which there was direct evidence from C
which, if believed, proved both of the material facts in issue. By a plea of not guilty
A put the truthfulness of C as to at least one or perhaps both material facts in issue
in dispute.
A typical form of circumstantial evidence in a case like this might be that of a
doctor who gives evidence of examining the complainant at about 6.00 am
following the alleged rape and observing that she had bruising and swelling below
31
her right eye and bruising to her abdomen. The function of that circumstantial
evidence is fundamentally different to the function of circumstantial evidence in a
circumstantial case. Its function is to support or corroborate the evidence of C. The
use which a jury may make of this circumstantial evidence may be best explained
by recalling the sort of direction which would have been given routinely some years
ago to a jury in this case about the danger of convicting in the absence of
corroboration. Firstly, the jury would be told that in order to use the evidence of the
doctor they would have to accept it. If it was undisputed at trial then that would
pose no problem. The jury would then have been told that the evidence was capable
of corroborating the evidence of C but it was for them to decide whether it actually
did or not. Most importantly, they would then be told that in order to find that the
evidence does corroborate the complainant they must be “satisfied that the only
reasonable view of the evidence is that the complainant is probably telling the truth
when she says that A raped her”. This is the essence of the Pfennig test.
[61]
Even when a jury applies this test and comes to the conclusion that the
circumstantial evidence does corroborate the complainant, this does not
automatically lead to a verdict of guilty. There may be other evidence in the
prosecution case or evidence in a defence case including evidence of the accused.
Even though the jury is satisfied that on the basis of the circumstantial evidence the
complainant is probably telling the truth they are still required to consider the whole
of the evidence and then only return a verdict of guilty if they are satisfied beyond
reasonable doubt that the accused is guilty. There may be other evidence bearing on
the issue. This is different to the approach which a jury takes when using
circumstantial evidence in a wholly circumstantial case. In a wholly circumstantial
casse the jury will consider each item of circumstantial evidence which it accepts
along with other items of circumstantial evidence which it accepts and if it is
satisfied beyond reasonable doubt that there is no reasonable hypothesis consistent
with innocence they will go straight to a verdict of guilty.
[62]
If a trial judge were to apply the Pfennig test of admissibility, of propensity
evidence, to the medical evidence mentioned in the hypothetical case above, s/he
would admit the evidence if s/he was “satisfied that the only reasonable view of the
medical evidence is that the complainant is probably telling the truth when she says
she was raped by A”. In my view this is the practical application of the general test
namely “that there is no reasonable view of the propensity evidence which is
consistent with innocence” which the majority judgment in Pfennig demands.
[63]
Supposing in the hypothetical case above the accused gave evidence which basically
confirmed C’s evidence about their meeting and what took place in the nightclub
and walking along the street beside the park. However, A swore that they went into
the park hand in hand. He swore that whilst in the park they started kissing,
fondling each other and the complainant lay down on the grass. He swore that he
removed her knickers but she did not struggle in any way, they continued kissing
and eventually they had sexual intercourse. C was an enthusiastic participant
moving her body in unison with his, moaning with pleasure, until he eventually
ejaculated. He didn’t run out of the park. They walked out of the park together to a
taxi rank where they said a pleasant good night and went home in separate taxis. In
such a case there would only be one material fact at issue and that would be the
issue of consent. Clearly, the circumstantial evidence of the bruising would be
admissible in evidence and would corroborate the complainant because the bruising
was observed in locations upon which the complainant said that the accused
32
punched her. Evidence such as that described above and evidence of distressed
condition is routinely admitted in such cases as circumstantial evidence
corroborating a complainant on the issue of consent and there can be no doubt that
juries regularly use such circumstantial evidence in that way. If circumstantial
evidence can corroborate a complainant in respect of the issue of consent on a
charge of rape there can be no basis in authority or logic which would prevent
propensity evidence (which is circumstantial evidence) corroborating a rape
complainant on the issue of consent in an appropriate case. This observation is
particularly relevant to the later discussion of the judgment of the High Court in
Phillips case. Further, the evidence does not just corroborate her bare claim that she
did not consent. It corroborates her account of the accused’s action in securing
carnal knowledge without her consent.
[64]
Supposing however the hypothetical accused gave evidence that almost everything
the complainant said was true, except although he had admittedly attempted to rape
her he did not achieve penetration. This may appear to be a fanciful scenario but in
my experience it is not unheard of. The sentence for attempted rape would probably
be significantly less than the sentence for rape committed in identical
circumstances. In that scenario the material fact in issue is the carnal knowledge,
not the absence of consent. The evidence of the bruising does not corroborate the
complainant on that issue. In the circumstances it might be expected that a jury
would believe the complainant. But the fact remains the evidence of the bruising
only corroborates the complainant’s account in regard to the absence of consent.
[65]
The sort of circumstantial evidence which might corroborate the complainant on the
issue of penetration would be evidence from a doctor of a genital examination
revealing definite signs of recent intercourse. It would include, devastatingly so, the
finding of residual seminal fluid matched to the accused.
[66]
Supposing the accused gave evidence that he did in fact meet and spend time with
the complainant as she described in the nightclub and that they left the nightclub
together and walked along the street by the park. But suppose he swore that they
didn’t go into the park at all but simply walked to the nearest taxi rank where he got
into the first cab available and went home and she waited for another taxi. In such a
case in my view the evidence of bruising would corroborate her in relation to both
issues, even though the bruising did not prove or tend to prove carnal knowledge.
The evidence of the bruising would corroborate her in a material particular so that
the only reasonable view of the evidence of bruising was that she was probably
telling the truth about the whole of the circumstances she described including the
carnal knowledge during which she sustained the bruising.
[67]
Supposing, however, that C gave somewhat equivocal evidence about the carnal
knowledge instead of the clear evidence set out in the statement above. Supposing
her account was that during the struggle she felt his penis touch her genital area and
penetrate her vagina for just a moment and only a little way. The jury could be
satisfied beyond reasonable doubt that she was telling the truth about the incident
generally but consider that she might possibly be mistaken about actual penetration
i.e. carnal knowledge. Under these circumstances the jury could use the evidence of
the bruising as corroboration of C’s account of the incident, that is, the absence of
consent. However the jury could not use it as corroborating her evidence of, or
tending to prove, the carnal knowledge. In this scenario the jury might well be
offered Attempted Rape or even Sexual Assault as alternative verdicts.
33
Hoch v The Queen (1988) 165 CLR 292
[68]
In my view Hoch’s case is the leading Australian case dealing with circumstances in
which an accused person is charged with an offence or offences against more than
one complainant (often sexual offences). The evidence of the individual
complainants is direct evidence which, if accepted, proves the commission of the
offences against each one of them. The course of the proceedings may be taken
from the judgment of Brennan and Dawson JJ at p 298. The applicant, a student
teacher, was employed part-time as a recreation officer at the Tufnell Home in
Brisbane. The home cared for young boys. His duties included the planning and
carrying out of activities for the boys. Allegations were made by each of three boys
who resided at the home that the applicant had sexually molested him. The
applicant was charged on indictment on three counts of unlawfully and indecently
dealing with a boy under the age of 14 years. After a trial before a judge and jury in
the District Court in Brisbane, the applicant was convicted on each count. The
prosecution joined the three counts in one indictment in pursuance of s 567(2) of the
Criminal Code (Q) which authorises inter alia a joinder of counts where the
offences charged are part of a series of offences of the same or similar character.
An application for separate trials was made based on the submission that the
evidence of each boy as to the indecent act of which he complained was not
admissible as similar fact evidence to prove the indecent acts of which the other
boys complained. The trial judge held that the evidence was all cross-admissible.
An appeal to the Court of Criminal Appeal in Queensland was dismissed. The
applicant applied for leave to appeal to the High Court of Australia.
[69]
The judgments do not contain any detailed account of the evidence, they simply set
out the matters which the trial judge identified as relevant to the admissibility
argument. He listed these as follows:1.
All the boys were inmates at Tufnell Home.
2.
They were young boys, their ages being 13, 13 and 10.
3.
The accused was working as a supervisor at Tufnell Home.
4.
In relation to the type of offences they all involved penis play, both of the
boys and of the accused.
5.
On two occasions approaches were made to boys in showers.
6.
In two of the cases use was made by the accused of the words along the lines
of “it cleans it” when referring to touching or playing with the penis.
7.
The offences took place, one at Tufnell Home itself, one at Scarborough
House, Scarborough which was associated with Tufnell Home and one at
Bribie on a Tufnell Home outing.
8.
the time span was some six weeks covering the three offences.
[70]
It was not disputed in the High Court that the evidence of all three boys was crossadmissible but for one point. It was submitted to the trial judge that in considering
the question of admissibility, he should have regard to the risk that the various
accounts given by the three boys were the result of joint concoction. The trial judge
declined to consider this aspect of the case. In separate judgments delivered by
Mason CJ, Wilson and Gaudron JJ and Brennan and Dawson JJ the appeal was
unanimously upheld. Since that time the following legislative provisions have been
introduced in Queensland, probably in response to the judgments in Hoch.
Section 597A(1AA) of the Criminal Code –
In considering potential prejudice, embarrassment or other reason for
ordering separate trials under this provision in relation to alleged offences of
34
a sexual nature the court must not have regard to the possibility that similar
fact evidence, the probative value of which outweighs its potentially
prejudicial effect, may be the result of collusion or suggestion.
Section 132A Evidence Act 1977 as amended.
In a criminal proceeding similar fact evidence, the probative value of which
outweighs its potentially prejudicial effect, must not be ruled inadmissible
on the ground that it may be the result of collusion or suggestion and the
weight of that evidence is a question for the jury, if any.
[71]
In my opinion the legislative changes, whilst removing the relevance of the risk of
concoction in no way detract from the importance of the judgments in Hoch’s case
as an indication of the reasoning process in applying the test for admissibility of the
evidence of the various complainants in such cases, first stated by the majority in
Hoch at p 296 as follows:“In Sutton (29) Dawson J expressed the view with which we agree
that to determine the admissibility of similar fact evidence 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 inconsistent with the guilt of the accused.”
[72]
Thus, it may be observed that the test now commonly referred to as the Pfennig test
was first stated in Hoch’s case. The majority judgment in Pfennig served to explain
in much more detail the development of the test but did not first state the test. In
my view that is a great pity. In my judicial experience cases concerning multiple
offences against multiple complainants come before the courts for consideration of
questions of admissibility far more often than do wholly circumstantial cases in
which the identification of the offender is the material fact in issue as was the case
in Pfennig. This has led to many courts, including courts of high authority,
attempting to apply the reasoning process involved in Pfennig to cases like Hoch
whereas in reality, although the test is the same, the reasoning process is completely
different.
[73]
In my respectful view the majority in Hoch appreciated that distinction when they
said at p 295 –
“Where the happening of the matters said to constitute similar facts
is not in issue and there is evidence to connect the accused person
with one or more of the happenings evidence of those similar facts
may render it objectively improbable that a person other than the
accused committed the act in question, that the relevant act was
unintended, or that it occurred innocently or fortuitously. The
similar fact evidence is then admissible as evidence relevant to that
issue.”
[74]
In my view this general statement should not be taken as an exhaustive statement or
limitation on the circumstances in which undisputed similar fact evidence may be
used or to confine the material facts in issue exemplified in that passage only to
cases in which the similar fact evidence is not in dispute. However, importantly, the
judgment goes on:“Where, as here, an accused person disputes the happenings which
are said to bear a sufficient similarity to each other, as to make
evidence on one happening admissible in proof of the others, similar
35
fact evidence bears a different complexion for the issue is whether
the acts which are said to be similar occurred at all. In such a case
the evidence has variously been said to be relevant to negative
innocent association (R v Simms) or as corroboration (Reg v
Kilbourne) but the better view would seem to be that it is relevant to
prove the commission of the disputed acts: See Boardman per Lord
Hailsham and Lord Cross; Sutton per Deane J. Certainly that is the
thrust of its probative value. That value lies in the improbability of
the witnesses giving accounts of happenings having the requisite
degree of similarity unless the happenings occurred. So much is
clear from the well known passage in the speech of Lord Wilberforce
in Boardman: “this probative force is derived, if at all from the
circumstance that the facts testified to by the several witnesses bear
to each other such a striking similarity that they must, when judged
by experience and common sense, either or be true or have arisen
from a cause common to the witnesses or from pure coincidence.””
[75]
These passages of course must be understood in light of the observation in Pfennig
at p 482:“This passage should not be understood as asserting that “striking
similarities” or the other characteristics mentioned in relation to
propensity or similar fact evidence are essential prerequisites of its
admissibility in every case.”
The judgment in Hoch goes on as follows:“Similar fact evidence which does not raise a question of
improbability lacks the requisite probative value that renders it
admissible. When the happenings which are said to bear to each
other the requisite degree of similarity are themselves in issue the
central question is that of the improbability of similar lies: see
Simms; Boardman; see also Rupert Cross, “R v Simms in England
and the Commonwealth” Law Quarterly Review Vol 75 (1959), p
333; Piragoff, Similar Fact Evidence (1981) pp 38-47.”
[76]
A little later the judgment went on:“In cases such as the present the similar fact evidence serves two
functions. Its first function is, as circumstantial evidence, to
corroborate or confirm the veracity of the evidence given by other
complainants. Its second function is to serve as circumstantial
evidence of the happening of the event or events in issue. In relation
to both functions the evidence, being circumstantial evidence, has
probative value only if it bears no reasonable explanation other than
the happening of the events in issue.”
[77]
I propose to discuss the cases referred to above in some detail so as to demonstrate
the reasoning process involved in cases in which the central question is the
improbability of similar lies. But I will first carry out that exercise in relation to the
relevant matters in Hoch’s case. Probabilities, improbabilities, likelihood etc are all
best understood by the ordinary, everyday expression, “What are the chances?”
[78]
In my experience of the world, experience of my fellow human beings including
legal, professional and judicial experience, false complaints of serious sexual
36
offences are relatively rare. However, they can and do happen. That is why in a
case involving one complainant only, the relative rarity of false complaints is
irrelevant because that case could be one of those rare instances in which a false
complaint is made and therefore the veracity of the complaint needs to be assessed
according to the evidence. However, for the same man to be the victim of three
false complaints in the space of about six weeks in my view is highly unlikely,
highly improbable and the chance of such dreadful coincidental misfortune, very
slim indeed.
[79]
The improbability of three false complaints being made against the same man in the
space of six weeks in my view is enough to be satisfied that all of the complaints
could not be false. But it is not enough to demonstrate that all of the complaints are
probably true. To arrive at that conclusion additional factors need to be taken into
account. Firstly, all of the boys were inmates at Tufnell Home. There is nothing in
the judgment which sets out any evidence of the number of boys who were inmates
at Tufnell Home during the six week period in which these complaints were made.
However, the number could not have been great. Therefore the statistical
improbability of three boys coming from such a confined group all making a false
complaint against the same man makes the improbability of similar lies even
greater.
[80]
The relationship, however, in my view somewhat lessens the improbability of
similar lies. The three boys were inmates of a home. The appellant was their
supervisor. It is not unheard that such a relationship can lead to feelings of
resentment by a boy towards a person in such a controlling situation. The three
different places at which the alleged offences took place are of no assistance either
way. Given the relationship between the appellant and the boys, if he were to
commit offences against them then it would most probably be at a location
associated with Tufnell Home. On the other hand if the boys were going to
fabricant false complaints against the appellant they would most likely describe
locations associated with Tufnell Home.
[81]
It is particularly material in my view that all of the boys alleged that the conduct
complained of involved penis play, both of the boys and of the accused. It is also of
relevance, but of less significance, that two of the boys allege that approaches were
made in showers and also two of the boys, perhaps not the same two, say the
appellant used words along the lines of, “it cleans it”. There are all sorts of ways in
which homosexual paedophiles may choose to molest a boy. Some ways may be
more common than others but I have no idea as to what such methods might be. I
would think that it is also possible that some homosexual paedophiles might like
variety in their forms of molestation. Others might be creatures of habit. I have no
idea what the proportion of each category might be. I expect that some homosexual
paedophiles use innocent excuses such as, “it cleans it” in order to secure the
cooperation of their victims. Therefore I am quite unable to say if the method of
molestation described by the three boys in this case is rare, unusual or
commonplace. However, that is not the point. The point is, what are the chances of
three boys independently of each other all fabricating such a similar method of
molestation as these boys did if the appellant was innocent? In my view, the
improbability of such similar lies is so great that the only reasonable view of the
evidence of all of them taken together is that they are all probably telling the truth.
37
[82]
Once it is accepted that this is the reasoning process involved in applying the
Pfennig test when the central question is the improbability of similar lies, the
importance of any real risk of concoction becomes readily apparent. The
compelling probative value of the evidence of these three boys depends critically
upon them acting independently of each other. If there is a real risk of joint
concoction then there is a risk that the making of the complaints themselves and the
details of what they allege the appellant did, is a product of joint concoction. That
then becomes a reasonable inference, conclusion or possibility consistent with
innocence. The majority in Hoch’s case said at p 296:“In relation to both functions the evidence, being circumstantial
evidence, has probative value only if it bears no reasonable
explanation other than the happening of the events in issue. In cases
where there is a possibility of joint concoction there is another
rational view of the evidence. That rational view – viz. joint
concoction – is inconsistent both with the guilt of the accused person
and with the improbability of the complainants having concocted
similar lies. It thus destroys the probative value of the evidence
which is a condition precedent to its admissibility.
Thus, in our view, the admissibility of similar fact evidence in cases
such as the present, depends on that evidence have the quality that it
is not reasonably explicable on the basis of concoction.”
[83]
Therefore, subsection 597A(1AA) of the Criminal Code and s 132A of the Evidence
Act 1997 as amended have very important implications on the issue of admissibility
of evidence in a case like Hoch. They require the trial judge in ruling on
admissibility to ignore any risk of concoction. That means that the trial judge must
assume that multiple complainants are each acting independently of the others. In
my view, if it is assumed that the three boys in Hoch’s case were acting
independently of each other there can be no reasonable view of their evidence taken
together other than that they are all probably telling the truth. This does not mean
that a risk of concoction is not of vital importance to a jury in a trial in which such
evidence is ruled admissible. If an issue of a real risk of joint concoction arises on
the evidence in a trial then the jury must be warned that they may only use the
combined evidence of the various complainants if they are satisfied that there is no
real risk of concoction because the probative value of the combined evidence
depends upon each complainant acting independently of the others.
[84]
There are some courts of high authority which have decided questions of
admissibility in cases like Hoch by using a different process of reasoning (e.g.
Phillips). This usually involves an assumption of the truth of the evidence of all of
the various complainants and then deciding the question of admissibility on whether
or not the conduct described is usual or unusual. This is illogical and it simply
could not have been the test applicable in Hoch’s case. First of all, the material fact
in issue in cases like Hoch is whether or not the accused person actually engaged in
the conduct alleged. If one assumes the truth of the material facts in issue the
evidence will always be admissible because if one assumes that the material fact in
issue in respect of all of the complainants there cannot possibly be any reasonable
hypothesis consistent with innocence. Secondly, if one assumes the truth of the
evidence of the three complainants in Hoch then it is quite impossible to say that
there is a real risk of joint concoction of similar lies.
38
[85]
Further, the reasoning process in Hoch does not involve assuming the truth of the
evidence of one complainant and then assessing whether or not it supports the truth
of the evidence of another complainant or the other two complainants. The
reasoning process involved is that the combined evidence of all three corroborates
the evidence of each one of them, because the objective improbability of all three
telling similar lies is so great that the only reasonable inference to be drawn is that
they are probably all telling the truth.
Moorov v H.M. Advocate 1930 J.C. 68
[86]
This was a case before the High Court in Scotland. It dealt with a number of issues
but so far as the matter under discussion in this case is concerned, the appellant was
charged, inter alia, with a series of sexual assaults. He operated a drapery store in
Glasgow. He advertised for female shop assistants in newspapers and a number of
women were engaged as assistants after responding to such advertisements. The
appellant was convicted of nine counts of indecent assault committed on five
women within a period of about three years. Although the judgment does not
specify precisely the acts alleged against the appellant it appears that they were
similar although not identical in all cases.
[87]
At that time it was a rule of law in Scotland that a person could not be convicted of
a criminal offence on the evidence of a single witness. In other words, it was
essential to sustain the convictions that the evidence of each of the women was not
only believed, but corroborated. The issue before the court was therefore whether
taken together, the evidence of the five women corroborated that of each one of
them. The court held that it did. I am not so concerned with the details. What is
important is that the judgment of Lord Justice General (Clyde) sets out the way in
which the evidence of the several witnesses in a case like this may corroborate that
of each one of them. The Lord Justice General said:“The test I think is whether the evidence of the single witnesses as a
whole…although each of them speaks to a different charge …leads
by necessary inference to the establishment of some circumstances or
state of fact underlying and connecting the several charges, which if
it had been independently established, would have afforded
corroboration of the evidence given by the single witnesses in
support of the separate charges. If such a circumstances or state of
fact was actually established by independent evidence, it would not
occur to anyone t doubt that it might be properly used to corroborate
the evidence of each single witness. The case is the same, when such
a circumstance is established by an inference necessarily arising on
the evidence of the single witnesses, as a whole.”
[88]
I have referred to this passage to demonstrate that in cases like Hoch and Moorov
the process of reasoning to be undertaken by a judge when ruling on questions of
admissibility, and a jury when arriving at a verdict, does not involve a reasoning
process whereby a judge must assume the truth of one of more complainants or a
jury must believe the evidence of one or more complainants and assess whether that
evidence corroborates the evidence of another complainant. It is the combined
evidence of all of the complainants which corroborates the evidence of each one of
them.
Rex v Simms 1946 1 KB 531
39
[89]
The accused was tried on seven counts, counts 1 and 2 contained charges of sodomy
and gross indecency respectively with a man AM; counts 3 and 4 contained similar
charges in respect of another man CM; counts 5 and 6 contained similar charges in
respect of another man HS; count 7 contained a charge of gross indecency with
another man EGW. He was convicted on three counts and acquitted on four. He
was tried on all seven counts together and the evidence of all four men was admitted
in relation to each of the seven counts. The point on appeal was whether or not that
decision was correct. The Court of Criminal Appeal in England ruled that it was.
[90]
The judgment in Simms has been subsequently criticised for the test of admissibility
adopted. There is no need to discuss that issue. The correctness of the decision has
never been doubted and the reasoning process has been adopted in later cases.
[91]
This case occurred at a time when acts of sodomy and gross indecency between
adult males, even with mutual consent, were offences. Although it is not entirely
clear from the judgment it seems likely that the various complainants consented to
the acts which they alleged were performed by Simms. They were therefore
accomplices and the issue of corroboration was significant. At p 540 Lord Goddard
CJ said as follows:“The probative force of all the acts together is much greater than one
alone; for, whereas the jury might think one man might be telling an
untruth, three or four are hardly likely to tell the same untruth unless
they were conspiring together. If there is nothing to suggest a
conspiracy their evidence would seem to be overwhelming. Whilst it
would no doubt be in the interests of the prisoner that each case
should be considered separately without the evidence on the others,
we think that the interests of justice require that on each case the
evidence on the others should be considered, and that, even apart
from the defence raised by him, the evidence would be admissible.”
[92]
His Lordship referred to the defence raised by the accused. He described that
defence as the defence of “innocent association”. One of the later criticisms of the
basis of the test for admissibility advanced by the Lord Chief Justice was that there
is really no such thing as a defence of innocent association. It is in reality simply a
denial of having done the acts alleged. However, as may be observed, the Lord
Chief Justice considered the evidence admissible even apart from that defence.
[93]
Once again, this case demonstrates the reasoning process involved when the central
question is the improbability of similar lies. It is the evidence of the various
witnesses taken as a whole which supports, or corroborates the evidence of each one
of them. It does so because of the objective improbability according to common
sense, reason and experience that four men in the similar relationship with the
accused would all come up with a fabricated account of such similarity. The only
reasonable conclusion to come to by reason of that improbability is that they are all
probably telling the truth. The other important matter arising in this judgment is
that the number of false complaints (if the accused is innocent) is of vital relevance.
In other words, the greater the number of false complaints (if the accused is
innocent) the greater the improbability of similar lies, that is, that the complaints are
false.
Rupert Cross, “R v Simms in England and the Commonwealth”, Law
Quarterly Review, Vol. 75 (1959), p 333.
40
[94]
This article, referred to with approval by the majority judgment in Hoch, further
clarifies the reasoning process in the judgment in Simms. It is sufficient to refer to
the following brief passages:Page 334: “The evidence of the others on the counts concerning each
man did more than suggest that the accused was the kind of person
who would commit the offences under consideration. It was also
relevant in another way because of the improbability that each man
would tell a similar lie with regard to the occurrences in the
accused’s house.”
Page 338: “the argument is that coincidences are rare, and a great
coincidence has to be assumed if the accused is not guilty of the
offence under consideration. If he is innocent, he is curiously
unfortunate in being the victim of so much similar false evidence.”
Director of Public Prosecution v Kilbourne 1973 AC 729
[95]
The respondent was charged on an indictment containing one count of buggery, one
count of attempted buggery, and five counts of indecent assault. All the offences
were alleged to have been committed on six boys under the age of 15. The first four
counts related to offences against one group of four boys. Counts 5 to 7 related to
offences against another group of two boys. All of the boys gave sworn evidence.
The respondent denied all the charges and his defence was that he did nothing at all.
At trial it was ruled that the evidence of the four boys in the first group was not
admissible in support of the evidence of each one of them because of the risk of
joint concoction. The evidence of the two boys in the second group was also ruled
inadmissible to support the evidence of each one of them because of the risk of
concoction. However, the trial judge ruled that the evidence of the boys in one
group could be used to support the evidence of the boys in the other group and vice
versa. The primary point under discussion in the hearing of the appeal was whether
the evidence of one group of boys could be used as corroboration to support the
evidence of each of the boys in the other group and vice versa. This fundamentally
involved considering whether the evidence was admissible in the way it was ruled
so by the trial judge. It also involved a necessary consideration of the reasoning
process involved in using the evidence in the way described. The essential
reasoning process appears in the judgment of Lord Hailsham at p 748 as follows:“Whatever else it is, the rule about fellow accomplices is not
authority for the proposition that no witness who may himself require
corroboration may afford corroboration for another to whom the
same consideration applies, and this alone is what would help the
respondent. When a small boy relates a sexual incident implicating a
given man he may be indulging in fantasy. If another small boy
relates such an incident it may be a coincidence if the detail is
insufficient. If a large number of small boys relate similar incidents
in enough detail about the same person if it is not conspiracy it may
well be that the stories are true. Once there is a sufficient nexus it
must be for the jury to say what weight is given to the combined
testimony of a number of witnesses.”
At page 751 Lord Reid said:“Where several children between whom there can have been no
collaboration in concocting a story, tell similar stories it appears to
41
me that the conclusion that each is telling the truth is likely to be
inescapable and the corroboration is very strong.”
[96]
In my view this case again confirms that in cases like Kilbourne the reasoning
process does not involve assuming the truth of the evidence of one complainant and
examining how it supports the evidence of another. The way in which the various
complainants corroborate each other is that the evidence of all of them taken
together corroborates the evidence of each one of them by demonstrating the
improbability of similar lies, which the accounts of all of the complainants must be,
if the accused is innocent.
Director of Public Prosecutions v Boardman 1975 AC 421.
[97]
The report includes proceedings before the Court of Appeal and before the House of
Lords. The report of proceedings before the House of Lords commences at p 431
and it is that with which I am concerned. The offences were alleged to have been
committed at a school in Cambridge of which the appellant was headmaster. There
were about 30 boys at the school which largely catered for boys (up to the age of
19) mainly from middle eastern countries who wished to learn English. The
offences related to boys at the school and were alleged to have taken place within
the period from September 1, 1972 to January 14 1973 i.e. approximately 4.5
months. So far as is relevant to the issues under consideration in this case, the first
count charged the appellant with having, on a day between October 1, 1972 and
November 30, 1972, committed buggery with S who was then aged 16. The second
count charged the appellant with having, on January 14, 1973, unlawfully incited H,
who was then aged 17, to commit buggery with him. The question under
consideration was whether or not the evidence of both S and H was admissible to
prove the offences charged in relation to each one of them. To fully understand the
implications of this case, it is necessary to set out a summary of the evidence of
each of the boys in some detail. I take that summary from the judgment of Lord
Morris beginning at p 436:“S spoke of a number of incidents. The first occurred in Tehran
before the autumn term of 1972 began. S had gone home for his
holidays. The appellant was staying in Tehran in a hotel. According
to S there was an indecent assault. As to that the appellant said that
he had merely put his arm around S but had not put his hands on S’s
private parts. The second incident was at Cambridge where S said
that the appellant had tried to touch him in the private parts but was
repulsed. That incident the appellant denied. The third incident
(which was at the end of September or beginning of October)
occurred at about 4 – 5 in the morning when S was asleep and was
awakened and felt something touch his face. S’s evidence was that
the appellant was there and said, “I love you, I love you, can you
come to the sitting room for five minutes? --- Five minutes of your
time --?” As to this the appellant said that he was doing the rounds
in the dormitory and saw that S was not in his own top bunk but was
in the bunk of another boy; that “kneeling down, and speaking
quietly so as not to awaken the other boys”, he told both to go to the
sitting room, saying that he would only keep them for a short time;
that possibly he said five minutes; that the other boy pretended to be
asleep and that S refused to come; but he tried unsuccessfully three
times to get S (who was very angry) to come. The appellant then left
42
them. There was an interview the next day. The next incident
according to S was when the appellant asked him to go alone with
him, offered him money, “If you will be a very good friend of mine,”
knelt in front of him and made a specific request not only that
buggery should take place but furthermore that S should play the
active and the appellant play the passive part. That incident the
appellant denied. The next occasion was when the appellant said to
S that he would tell the seniors not to go to the sitting room that night
and that S should come by himself. That was denied by the
appellant. Then came the occasion when according to S the actual
act of buggery took place. Some time after 10.45 am the appellant
had asked S to go to him and had threatened him with expulsion, “if
tonight you don’t do it on me”. S later went to the appellant and in
his evidence he described in some detail what took place. The
appellant wholly denied the occasion.
H gave evidence of two incidents. The first of these began when
one night the appellant, at some time between midnight and 2.00 am
woke H who was asleep in a dormitory and told him to get dressed.
Together they then went by taxi to a club called the Taboo Disco
Club. After some drinks there they returned to the school and then
sat drinking and talking in the sitting room. Then, while seated close
together, the appellant according to H started to touch his [H’s]
private parts through his trousers; he asked H to sleep with him and
made the specific suggestion that H should play the active part and
he [the appellant] the passive part. As to all this the appellant’s
evidence was that he had taken H to the club but that he was in the
hope of confronting H with a woman with whom he understood H
had been associating and who was regarded by the appellant as being
undesirable as an associate. The appellant denied that on their return
to the school he had made any indecent suggestion or invitation. The
second incident spoken of by H was that which was the basis of
count 2. It occurred on or about January 14, 1973. After an early
discussion as to whether H should not (as the respondent wished)
return to the school after the Christmas holidays as a boarder rather
than (as H wished) as a day boy. H said that while they were in the
sitting room the appellant again asked H to sleep with him and then
touched his [H’s] private parts. The evidence of the appellant was
that after the Christmas holidays H had not returned to the school as
a boarder but on his own initiative became a day boy and was
associating with an undesirable woman. The January interview
related to that matter but the appellant said there was no indecent
gesture or indecent suggestion.”
[98]
At page 441 Lord Morris summarised the way in which the trial judge had put the
probative value of this evidence to the jury:“In dealing with corroboration he said that it would be open to the
jury in regard to count 1 to find corroboration in the evidence of H
and in regard to count 2 in the evidence of S. In explanation he said:
“the evidence of S on count 1 can help if you think it right, to prove
the case against the defendant on count 2”. He said that the kind of
43
criminal behaviour alleged against the appellant in the two counts
was in each case of a particular, unusual kind: that it was not merely
a straight case of a schoolmaster taking advantage of a pupil and
indecently assaulting a pupil but there was “unusual feature that a
grown man attempted to get an adolescent boy to take the male part
to the master’s passive part in acts of buggery.” Pointing out that a
jury might think it unlikely that two people would tell the same
untruth, he told the jury that it was a matter for them to decide
whether the similarity of the kind of behaviour dealt with in count 1
and the kind of behaviour dealt wit in count 2 helped them to be
convinced of the truth of the evidence given respectively by S and by
H.
The learned judge left the matter fairly to the jury. He mentioned the
possibility of two people conspiring together and he examined the
question whether there were or were not any indications that S and H
had conspired together. That was important because one question
which the jury may have wish to consider was whether it was against
all the probabilities if the appellant was innocent that two boys
unless they had collaborated would tell stories having considerable
features of similarity. In dealing with the similarity with the kind of
behaviour spoken to by S and by H the learned judge concentrated,
and perhaps unduly so, on that feature of it which showed that the
request and desire was that it was the youngster who was to play the
active part and the appellant the passive part.”
However His Lordship identified an additional feature which he obviously
considered to be particularly relevant:“But another feature of rather striking similarity lay in the evidence
concerning the nocturnal dormitory visits of the appellant. The
waking up of S during the night and all that was said during the “five
minutes incident” could legitimately compare with the early morning
waking up of H and of all that followed.”
[99]
[100]
In the judgment of Lord Wilberforce at p 444 the following appears:“the probative force is derived, if at all, from the circumstance that
the facts testified to by the several witnesses bear to each other such
a striking similarity that they must, when judged by experience and
common sense, either all be true, or have arisen from a cause
common to the witnesses or from pure coincidence. The jury may
therefore properly be asked to judge whether the right conclusion is
that all are true, so that each story is supported by the others.”
In my view it is surprising that out of all the words of compelling logic and reason
used in the judgments of their Lordships in this case so many later judgments have
concentrated on this passage from the judgment of Lord Wilberforce and have
unjustifiably converted it into suggesting that there is a need of striking similarity
before the evidence of multiple complainants becomes admissible. One matter of
particular note in the judgment of Lord Morris is that his Lordship saw probative
value in relation to the offences charged not just in the evidence of the two boys
which, if believed, supported those charges. His Lordship also identified what he
considered to be a similarity in uncharged conduct or relationship evidence. i.e. the
44
nightclub incident and the “five minute incident”. Lord Hailsham also saw
probative value in the relationship evidence and not just the evidence of the charged
offences. His Lordship said:“Neither S nor H was describing an isolated incident as regards the
appellant’s conduct towards himself. Each alleged a course of
conduct which culminated in the act charged, and that course of
conduct would have supported a series of other charges, in the case
of S 5 or 6 (excluding another incident of the same kind alleged to
have taken place in a Tehran hotel before S joined the school), and in
the case of H at least one which took place presumably towards the
end of the term preceding the final allegation of incitement, which
was placed in the Christmas holidays of 1972/73. All the incidents
alleged were placed in the autumn or winter of 1972 or January
1973. There were in particular two incidents one relating to each
boy which appear to me to bear more than a superficial resemblance
to one another. I shall refer to the first, which relates to S, as the
“five minute incident”, which was how it was referred to by the
judge. The other incident, which related to H, I shall refer to as the
“Taboo Disco Nightclub” incident, from the name of the place at
which one part of the incident occurred.”
Lord Hailsham also agreed with Lord Morris to the effect that the judge may have
concentrated too much on what was asserted to be the unusual nature of the request
allegedly made by the trial judge. At p 445 he said:“It is fair to the appellant’s argument to say that there is undoubted
force in the criticism that, by fastening on the purely passive role
said to have been adopted by the appellant towards the act of
buggery suggested or performed as the sole element of “striking
resemblance” between S’s testimony and that of H the trial judge
was on dubious ground, partly because it might be said that, as
between two witnesses only the fact although perhaps unusual was
perhaps not so unusual as to the evidence admissible and partly
because over the sequence of all the evidence including that of A it
was not perhaps so unambiguously and consistently displayed as to
render it a kind of signature which would make it “an affront to
common sense”…”
[101]
In the judgment of Lord Cross of Chelsea at page 460 his Lordship said as follows:“In Reg v Kilbourne (1973) AC 729 my noble and learned friend
Lord Reid expressed the view at pp 750-751, that in a case of this
sort, “similar fact” evidence could only be admitted if it showed that
the accused was pursuing what could be “loosely called a system”
and that two instances would not be enough to constitute a system. I
naturally hesitate to differ from my noble and learned friend but I am
not myself prepared to draw a line of this sort. On the other hand I
think that when you have so few as two instances you need to
proceed with great caution. It is by no means unheard of for a boy to
accuse a schoolmaster falsely of having made homosexual advances
to him. If two boys make accusations of that sort at about the same
time independently of one another then no doubt the ordinary man
would tend to think that there was “probably something in it”. But it
45
is just this instinctive reaction of the ordinary man which the general
rule is intended to counter and I think that one needs to find very
striking peculiarities common to the two stories to justify the
admission of one to support the other. The feature in the two stories
upon which attention was concentrated in the courts below is that
both youths said that the appellant suggested not that he should
bugger them but that they should bugger him. This was said to be an
“unusual” suggestion. If I thought that the outcome of this appeal
depended on whether such a suggestion was in fact “unusual” I
would be in favour of allowing it. It is no doubt unusual for a middle
aged man to yield to the urge to commit buggery or to try to commit
buggery with youths or young men but whether it is unusual for such
a middle aged man to wish to play the pathic role rather than the
active role I have no idea whatever and I am not prepared in the
absence of any evidence on the point, to make any assumption one
way or the other.”
His Lordship then stated what, in my view, is the most succinct exposition of the
reasoning process involved when the central question is the improbability of similar
lies:“As I see it, however, the point is not whether what the appellant is
said to have suggested would be, as coming from a middle aged
active homosexual, in itself particularly unusual but whether it would
be unlikely that two youths who were saying untruly the appellant
had made homosexual advances to them would have put such a
suggestion into his mouth.”
The word “unlikely” in this context clearly means “improbable”, according to
logic, reason, common sense and experience.
His Lordship also thought there was significance in the similarities of the
uncharged relationship evidence given by the boys. At page 461 he said:“My noble and learned friends, Lord Morris of Borth-y-gest, Lord
Hailsham of St Marylebone and Lord Salmon, point, however to
other features common to the two stories which, it may be said, two
liars concocting false stories independently of one another would
have been unlikely to hit upon and, although I must say that I regard
this as very much a borderline case, I am not prepared to dissent
from their view that the “similar fact” evidence was admissible here
and that the appeal should be dismissed.”
Finally, the majority judgment in Pfennig endorsed this reasoning process when the
central question is the improbability of similar lies as follows:“Where the propensity or similar fact evidence is in dispute, it is still
relevant to prove the commission of the acts charged (Boardman
[1975] AC at pp 452, 458-459; Sutton 1984 152 CLR at pp 556-557,
Hoch 1988, 165 CLR at p 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.
46
[102]
Nothing that I have written above should be understood as intending to suggest that
the reasoning process to be adopted when the central question is the improbability
of similar lies is always that illustrated by Simms, Kilbourne, Boardman, Hoch and
Pfennig. However it will usually be the process of reasoning to be applied when an
accused person is charged with offences against a number of complainants. That is
because the evidence of each complainant is evidence of a material fact in issue in
respect of the charges alleged to have been committed against that complainant.
However, the evidence of that same complainant is circumstantial evidence
(propensity evidence) in relation to the offences alleged to have been committed
against the other complainants. Therefore the evidence of each complainant is at
the same time evidence of a material fact in issue and propensity evidence.
[103]
In some cases an accused might be on trial for offences against a single
complainant. Propensity evidence might come from other witnesses (propensity
witnesses) in respect of which the accused is not charged with any offences against
those witnesses in the trial. One reason for this might be that the accused has
already been tried in respect of offences relating to the propensity witnesses. For
instance, an accused might be on trial for sexual offences alleged to have been
committed against X. Y and Z give evidence of similar acts being committed by the
accused against them but the accused is not on trial for having committed any of
those acts. Obviously the accused is disputing the evidence of X. However the
reasoning process may vary depending upon whether or not he disputes the
evidence of Y and/or Z. If the accused does dispute the evidence of Y and/or Z, in
my view a similar reasoning process to that adopted in the above cases is
appropriate, namely the improbability of all three people fabricating a similar lie
about the accused. Another scenario might be that the accused disputes the
evidence of the complainant but does not dispute the evidence of a propensity
witness. In such a case the central question is still the improbability of similar lies
but it is not the improbability of both witnesses telling similar lies. It is the
improbability of the complainant telling similar lies to the truthful evidence of the
propensity witness.
[104]
Other cases may arise in which the complainant gives evidence of a single incident
in which he or she alleges that the accused committed an offence or offences
charged. A propensity witness gives evidence of a large number of incidents
stretching over an extended period, all of which are disputed by the accused. The
central question is still the improbability of similar lies. However it might not
necessarily involve a reasoning process directed to the improbability of both the
complainant and the propensity witness telling similar lies. In such a case a jury
would be entitled to accept the evidence of the propensity witness without having
regard to the evidence of the complainant. In such a situation when ruling on
admissibility the trial judge would assume the truth of the evidence of the
propensity witness. The reasoning process would then involve e the improbability
of the complainant telling lies if the evidence of the propensity witness is true. To
apply the Pfennig test to this situation a trial judge would have to be satisfied that
the only reasonable inference to be drawn from the evidence of the propensity
witness, if accepted, is that the improbability of the complainant lying is so great
that the only reasonable inference to be drawn is that the complainant is telling the
truth.
Mitchell v R (1952) 36 Cr App R 79
47
[105]
It should also not be assumed that in every case the probative value of the
propensity evidence or the evidence of multiple complainants together will arise out
of or necessarily involve a similarity in the behaviour of the accused towards each
of them. A very good example of this arose in this case. The accused was charged
and convicted with three offences of indecent assault on a girl S aged 11. S gave
evidence on oath that on three occasions the appellant had indecently assaulted her
in the vestry of a church of which he was the clergyman. She said that on the first
occasion he had spoken to her about a girl named Judy who lived in Cornwall, and
who, he said, used to go about with boys and behave indecently with them, and that
he had described indecencies which took place between him and Judy. Judith Ann
New (known as “Judy”), who also was aged 11 and gave evidence on oath said that
she had known the appellant in Cornwall some two years before and had for a time
stayed in the house occupied by the appellant and his wife. She alleged that on
occasions the appellant had behaved indecently to her in her bedroom and asked her
to do other indecent things with him which she had refused to do. The appellant
gave evidence that Judy had behaved indecently with other children, including his
own boy, but denied that he had spoken about this to S though he was unable to
suggest how S could have learned about Judy without being told by him. Sheila
lived in West Ham. The Court of Criminal Appeal consisted of a bench of five
including the Lord Chief Justice. The judgment of the Court was prepared by Mr
Justice Oliver. At p 82 his Lordship said:“Sheila’s story was this, that she had been on three occasions
interviewed by the appellant in the vestry of his church and that he
had on the first occasion after talking about school started talking
about a girl Judy who lived in Cornwall, that Judy used to go about
with boys and allow them to be rude with them, then that he, the
appellant, used to be rude to Judy and described a form of indecent
assault. Now, in fact there was living in a village in Cornwall a girl
named Judy who had known the appellant some two years before and
had, for a time, lived as a guest in his home along with him and his
wife. She alleged that in her bedroom sitting on her bed he used to
do indecent things to himself and to ask her to do indecent things
with him but that she refused. It is quite out of the question that
Sheila living in West Ham could ever have come in contact with or
heard of Judy living in Cornwall except by communication with the
appellant.”
In the expression “It is quite out of the question” His Lordship was saying in a
succinct and practical way that it was objectively improbable, according to logic,
reason, common sense and experience.
[106]
There was no striking similarity, pattern, system or underlying unity in the accounts
of the two girls which must have been fabricated if the accused was innocent.
Sheila said that the accused indecently assaulted her. Judy said that the accused did
rude things to himself and asked her to do rude things to him. Sheila said the
incidents she described took place in a church in Cornwall. Judy said the incidents
she described took place in a house in West Ham. Judy’s account contained nothing
comparable to Sheila’s claim that the accused had spoken to her of another girl. If
the appellant was innocent, then Sheila’s evidence of him talking to her about a girl
named Judy who lived in Cornwall was a fabrication. Applying the Pfennig test, if
48
Judy from Cornwall was telling the truth then the only reasonable inference to be
drawn was that Sheila must have been telling the truth in her evidence about what
the appellant had told her. Given the context in which she described that matter the
only reasonable inference was that Sheila was telling the truth about being
indecently assaulted by the appellant. Equally, the jury was entitled to rely on the
evidence of Sheila to support the evidence of Judy which was disputed. If Sheila
was telling the truth about what the appellant told her of the girl Judy who lived in
Cornwall then it is beyond belief that coincidentally a girl named Judy living in
Cornwall would happen to have fabricated an account of indecent behaviour against
the appellant. In that way the evidence of each of the girls supported that of the
other.
Phillips v The Queen [2005] 158 ACrimR 431
[107]
I was the trial judge in this case. I am acutely conscious, in light of what I am
about to write, that it would be far better for any judge but me to be writing it.
[108]
Phillips was tried before a jury in the District Court at Innisfail over a period of a
little more than three weeks in February/March 2004. The counts in the indictment
may be listed as follows:Count
[109]
Date of Offence
Offence
Complainant
1
31/7/2000-1/9/2000
Indecent assault mouth on vagina
BS
2
31/7/2000-1/9/2000
Rape
BS
3
About 24/2/2001
Rape
TK
4
28/2/2001-1/4/2001
Rape
ML
5
30/6/2001-1/8/2001
Rape
SW
6
About 19/11/2001
Rape
MM
7
About 19/11/2001
Rape
MM
8
11/5/2003
Assault with intent to rape
JD
The alleged offences arose out of six discreet incidents which occurred between
31/7/2000 and 11/5/2003, a period of a little less than three years. As may be
observed there were six different complainants, a different complainant involved in
each incident. The following table sets out the respective ages of each complainant
and the accused at the time each offence is alleged to have occurred:Count
Age of Complainant
Age of Accused
1
16
16
2
16
16
3
16
16
4
15
16
49
[110]
5
14
16
6
15
17
7
15
17
8
18
18
In a number of pre-trial hearings Phillips, through his legal representatives, applied
for various indictments to be severed, so that he would be tried separately in relation
to each of the six incidents. The ruling depended upon whether the evidence of all
six girls was admissible to prove the offences alleged to have been committed
against each one of them. I ruled that the evidence was so admissible and the trial
proceeded accordingly. There is no need to discuss those pre-trial rulings because
as the judgment of the High Court in Phillips points out by the end of the evidence
there had been significant changes and additions to the material facts in issue in the
trial and the basis for admissibility was different to that upon which I ruled in the
pre-trial hearings. However, at the end of the evidence I ruled that the evidence of
all six girls was admissible in proof of the offences alleged to have been committed
against each one of them and the case went to the jury on that basis. It is also
relevant that as well as the counts specified in the indictment a number of
alternative verdicts were left to the jury in respect of some of those counts. They
were as follows:Count 3: TK
Attempted rape
Sexual assault
Count 5: SW
Unlawful carnal knowledge
Counts 6 and 7: MM
Unlawful carnal knowledge
Attempted rape
Attempted unlawful carnal knowledge
Indecent dealing with a child under 16
[111]
At the time of the pre-trial rulings it was clear that Phillips asserted his innocence in
respect of each of the offences charged but at that time there was nothing in the
prosecution case to give any clue as to the basis upon which he asserted his
innocence. At that time the material facts in issue in relation to count 1 were
(a)
the act itself (penis in the mouth) and
(b)
absence of consent
In relation to counts 2, 3, 4, 5, 6 and 7, the counts of rape, the material facts in
issue were –
(a)
the act itself, namely carnal knowledge
50
(b)
the absence of consent
In respect of count 8, the material facts in issue were –
(a)
the act of assault,
(b)
the absence of consent, and
(c)
the intent to rape
[112]
It was never suggested to me at any pre-trial hearing or during the trial that if the
account which each complainant gave about each of the six incidents was accepted
as truthful and accurate all of the material facts in issue in respect of each of the
counts would be proved, provided the jury were satisfied beyond reasonable doubt
of the truth and reliability of the complainants’ evidence. However as the
complainants came and gave their evidence-in-chief and were cross-examined it
became apparent from what was being put to the complainants that not all material
facts in issue arising on each charge were disputed. For instance when BS was
cross-examined about the incident giving rise to counts 1 and 2 it was not disputed
that the penis in the mouth and carnal knowledge occurred. Rather it was put to her
that they occurred with her enthusiastic consent. When TK gave evidence in crossexamination it became apparent that the accused’s case was that no such incident as
she described occurred at all. Therefore both material facts in issue were in dispute.
After the accused gave evidence generally in line with what had been put to the
complainants in cross-examination it became clear just as to what material facts in
issue were in dispute and which were not. Just as importantly it became clear just
what evidence each of the complainants gave in relation to the incident in which she
was involved was in dispute, that is, in what respect they had lied if the accused was
innocent. This was of critical relevance to the central question namely the
improbability of similar lies.
[113]
In order to discuss these matters intelligibly it is necessary to set out a summary of
the relevant evidence given by each of the complainants in respect of each incident
and the evidence given by the accused.
Counts 1 and 2: BS
[114]
BS and Phillips had met briefly whilst at school and they had also met at a party in
about August 2000. On the night in question the appellant was with two mates at
his parents’ home at Cowley Beach outside Innisfail. One of the friends BM also
knew the complainant and had briefly gone out with her sometime earlier. The boys
decided that they would like to have a party and invite some girls. This led to BM
phoning BS and telling her that there was a party. Arrangements were made to pick
BS up from her home in Tully. The appellant and BM collected her at about 9.15
pm. On arrival back at the residence some steps were taken to keep their arrival
unknown to the appellant’s parents. No other person came to the party. There was
therefore BS, Phillips and his two mates. Some beer was consumed, primarily by
the boys. According to BS the appellant was flirting with her. In the early hours of
the morning BS wanted to go home but she was told that because of the alcohol
consumed nobody was able to drive her and it was suggested she should sleep the
night and be driven home the following morning when BM was collected by his
mother.
51
[115]
[116]
BS gave evidence that there was discussion about sleeping arrangements and
Phillips suggested that she sleep upstairs in his sister’s room. He took her to that
room where there was a mattress on the floor. Phillips left the room and BS
changed her clothes into a t-shirt and boxer shorts to get ready for bed. She said
that after about 10 minutes Phillips came into the room without knocking. He asked
her for a kiss. BS said “no”, mentioning that he had lied about the party. Thereafter
according to BS Phillips tried to pull her pants down and became fairly aggressive.
Ultimately Phillips succeeded in forcefully removing her pants and he lay on top of
her with his hand over her mouth. At an early point in time in the incident he asked
her to “suck him off” and forced her mouth over his penis for a short time. There
followed an act of aggressive intercourse during which the complainant told the
appellant that he was hurting her and she begged him to stop; he inserted his penis
about “half of the way” into her vagina. The appellant then asked the complainant
to “jerk him off”; when she declined he masturbated until he ejaculated over her
body. The complainant maintained that she was yelling loudly for him to stop
throughout the episode which caused her pain. BS said that Phillips left the room
shortly thereafter. She went down stairs and slept on a mattress until the following
morning. She was then driven to Innisfail by Phillips’ sister. It turned out that the
room to which Phillips had showed her was not his sister’s but his own.
Phillips’ evidence was that BS asked him to keep her away from BM and was
flirting with him, which included touching and kissing. According to him BS asked
him whether there was somewhere else they could go and following that they went
upstairs to his room. According to Phillips his parents were in the room next door.
He said that in his own bedroom each undressed while they were there together. He
said BS gave him oral sex of her own volition for two to three minutes. That was
followed by her spreading her legs and consenting to a completed act of intercourse.
He said that he ejaculated onto a tissue. According to him both slept on the same
mattress in his room until the following morning.
Count 3: TK
[117]
Phillips and TK were well known to each other. It was readily apparent and
undisputed that TK like Phillips. They had gone out as boyfriend and girlfriend
over several weeks sometime earlier but that had ended. Nevertheless they
remained close friends. Phillips was also friendly with TK’s brother and from time
to time he would visit TK’s house and stay overnight. TK denied that there had
ever been any sexual activity between herself and Phillips prior to the occasion
giving rise to the charge.
[118]
On the night in question the complainant was celebrating her 16th birthday and had
some friends including two other girls and the appellant at her house. There was
alcohol at the party and both the appellant and complainant consumed some.
Evidence was given of a “truth or dare” game during which the appellant took off
his clothes and the other two girls removed some of theirs. At one stage the
appellant was kissing one of the other girls. TK gave evidence that on one occasion
she was sitting partly on Phillips’ lap. The party went until the early hours of the
morning when Phillips, TK and the two female friends were the only persons left.
The two girls went to bed and TK and Phillips did some cleaning up in the kitchen.
TK said that Phillips told her he wanted to talk to her and they went out and sat at
the top of the stairs. She said that he told her he really liked her and tried to kiss
her. She said she pushed him away and got up to go to bed. TK said that Phillips
52
then grabbed her, picked her up in his arms (she was a very small girl), and carried
her downstairs where he threw her on her brother’s bed. The brother was not at
home. She said he removed his clothing and forcibly removed hers and then started
to kiss her. She said he held her down on the bed and she could feel his penis enter
her briefly for a short way. All the time she was trying to push herself away from
him and telling him to stop. She told him that what he was doing was rape and he
said he knew but he couldn’t help it. When Phillips got up to close the door TK
pulled up her pants and tried to run away but she was pushed back onto the bed.
She was crying and telling the appellant to stop but he again penetrated her with his
penis once again briefly and only a short way. According to the complainant in
order to get the appellant to stop she told him that she was going to phone an older
male friend. She still had her mobile phone clutched in her hand. Phillips dared her
to. She said she made the phone call to the friend and told him not to hang up. At
that Phillips got up and left.
[119]
According to Phillips prior to the night in question perhaps some months earlier, the
complainant had given him oral sex once in her bedroom. His evidence was that the
complainant initiated that activity on that occasion; she started pulling his pants
down, got herself naked and voluntarily gave him oral sex. He said that during the
night of the party, but well before its conclusion, they had gone into a room used as
an office closed the door, stripped naked and commenced kissing whilst sitting in a
chair. There was a knock at the door which interrupted their activity. They got
dressed and left. According to Phillips that was the only sexual contact they had
that night. According to him when the night ended he and TK had a brief argument
and he left. IN this case therefore both the material facts in issue in relation to the
count of rape were disputed.
Count 4: ML
[120]
ML and Phillips attended a large party at a house in Innisfail. ML had been
drinking alcohol and was drunk. She and Phillips knew each other and they had a
number of mutual friends. Phillips sat next to her at one stage and after a brief
conversation he handed her a two litre bottle of Coke telling her to hold onto it and
bring it over to him across the road if he was not back within a time. As Phillips
had not returned after a lapse of time ML went across the road and found him
talking to other people. According to her he told her to sit down on the gutter and
shortly after he sat next to her and they had a conversation. She said Phillips told
her she needed some fresh air, put his arm around her, and starting walking her
down the yard of a house which was across the road from where the party was being
held. She said the appellant sat her on a garden ledge and was standing between her
legs. She said he tried to kiss her but she said, “no” and told him to “fuck off”.
According to ML she had no recollection of the immediately following events. She
said she may have passed out because of the alcohol she had consumed. ML’s next
recollection is of her legs hanging over the edge of the ledge with her jeans removed
and the appellant’s penis entering her vagina and pushing inside her. She said that
she screamed, swore at him and told him to “fuck off”. According to her a light
came on in a nearby house and the appellant said to her that she did not “even make
him come”. The appellant went away. She was able to get her jeans back on and
she too walked back outside where she made an immediate complaint to friends.
[121]
According to Phillips after they had moved to the cement ledge ML turned to him
and said, “Oh fuck it” and started kissing him. She then asked him whether he
53
wanted to go somewhere and the two of them went down the side of the house.
According to him each took off their clothing, kissed and then intercourse took
place. According to Phillips it was “just all action”. He said that ML was moaning
and touching him all over. He said that he did not complete the act of intercourse
because he was too drunk but ML said for him to go on. According to him she said,
“Usually my ex’s would have finished by now”. She asked him to resume having
intercourse but he said words to the effect, “you can’t make me come”.
Count 5: SW
[122]
[123]
SW and a girlfriend KW made arrangements for a small get-together at the flat
where SW lived with her eldest sister who was away at the time. KW arranged for
BM and two of their friends including Phillips to attend. SW had not previously
met Phillips. Some alcohol was consumed and marijuana was smoked. Some of
them played a game of “dare” which resulted in the boys being naked and KW
wearing only her G-string. SW’s involvement in the game was very limited and did
not involve her undressing. Later KW gave BM a massage and she suggested to
SW that she should massage one of the other boys. In consequence SW began
massaging the appellant’s bare back. She was fully clothed. Positions were
swapped and the appellant gave SW a massage. According to her he massaged her
breasts. She said that he took her by the arm and walked her into the bedroom. She
said that in the bedroom Phillips lifted her top up and felt her breasts, took his pants
off, and made her put her mouth “over his cock”. She said that he pushed her head
down and that she didn’t mind it at first, then she got a bit scared. She tried to push
him away and he asked her if he could “jack off” while he was near her. According
to SW Phillips then pulled her pants down and she felt something go inside her.
She felt something bigger go inside her and it hurt. She was clearly referring to
penetration of her vagina. Her evidence was that KW then tried to come in and
Phillips got up and pushed the door closed. KW gave evidence of seeing SW with
her pants down and Phillips naked with an erection. SW said that the appellant
came back and penetrated her a second time. He pushed her back down though she
was telling him to stop and was crying. She noticed bleeding on her underwear the
following day. That was her first sexual experience.
Phillips did not dispute SW’s evidence up to the point where the massage ended.
However, he said that it was SW who led him into the bedroom. He said that he
was “weird about all this”. He said SW started kissing him and pulled out a
condom and handed it to him saying, “just in case”. He said she took off her clothes
and started to give him “a bit of oral”. She then laid back and prepared for
intercourse. He put on the condom but it split. He couldn’t be sure if he inserted
his penis into her vagina; he conceded it was touching her but he wasn’t sure if it
went in. Shortly after that BM called out that it was time to go home and he left.
Counts 6 and 7: MM
[124]
MM and Phillips knew each other from school although they were not close friends.
Prior to the date in question MM had been living with her boyfriend, a youth named
PP. For a variety of reasons she had become dissatisfied with that relationship and
with living with PP and other members of his family. She wanted to return to her
mother’s home at Mission Beach but had no transport to get there. During the day
prior Phillips and a friend had visited the home where MM and PP lived. MM and
Phillips made an arrangement whereby he would drive up to PP’s house, she would
54
slip out, and Phillips would drive her away. This ultimately happened. Eventually
late in the afternoon Phillips drove her to a rural property owned by his parents.
She was taken to a vacant home although it appears that Phillips was staying there
occasionally whilst he worked on the farm. MM was left alone for a while and told
to watch out for snakes. She was given what was described throughout the trial as a
baseball bat. In fact it was a wooden handle for a large sledgehammer but was
about the size of a baseball bat. She was given the bat to use if she saw snakes.
Later the appellant returned to the house with his mother, they brought with them
additional bedding, food supplies and a bottle of Tia Maria. After the mother left
Phillips had a beer and MM a drink of Tia Maria. They then went for a ride around
the property on Phillips’ four wheel motorbike. Each had another drink when they
returned to the house and then ate some food. This was followed by another ride
around the property. They went to a house where MM phoned PP. when they
returned to the house more food and drink was consumed and by that time it was
well after dark. MM gave evidence that she wanted to go to sleep. There were two
separate beds made up on the floor some distance away from each other but in the
living room.
[125]
She said at this stage Phillips asked her for a good night kiss a number of times but
she refused. She said he was wearing boxer shorts and on her refusing to give him a
kiss, he pulled out his penis from his pants and started like “wanking himself”. MM
fully clothed laid down on her bed. She moved away from Phillips and he went
downstairs. He returned with the baseball bat. He then demanded that she “get into
the room”. He had the baseball bat raised when he said that. He told MM to
remove her shirt. When she said she didn’t want to he raised the bat again and she
then removed her shirt. He ordered her to remove her bikini top and she began to
cry. He raised the bat again as if he was going to swing it at her and she took her
bikini top off. She was crying throughout the incident. She said she was, “scared, I
didn’t know if he was going to hit me”. According to her Phillips was still
masturbating and he asked her “to give him a bit of head”. MM said that she
refused, she was still crying and was threatened with the bat again. She said, “I did
what he said to me to do and then I tried to make up excuses why not to do it. My
mouth hurts and my cheeks are hurting; anything I could think of at the time”. She
said that at this stage while she was still crying Phillips told her to take her pants
off. She did so and Phillips then pushed her back onto the bedding and tried to
insert his fingers into her vagina. He then got on top of her and tried “to have sex
with me”. When asked whether his penis went inside her she replied, “not all the
way”. She said she was trying to tense her body up. She said that it was hurting
from him trying to push it inside of her and she was just saying, “no”. the appellant
said, “let’s do it doggy”. According to MM Phillips manoeuvred her into that
position and tried to insert his penis from behind. Again she said it did not go in all
the way but there was penetration. According to MM the bat was behind the
appellant throughout the incident. He got up, gave the complainant a cigarette and
had one himself. She said she was still crying at that time. After the cigarette
Phillips asked for more oral sex and MM complied, although she said no because
she was scared. She said there was the bat with him and she also said that she had
been told earlier that there was a shotgun in the house. She said that Phillips lay on
top of her and tried to open her legs. There followed an episode similar to that
which had previously occurred and she said his penis penetrated her but not all the
way. She was tensing up and trying to move away from him. The baseball bat
remained in Phillips’ possession or near to him throughout the whole episode
55
according to MM. After the second episode she asked him to throw it out the
window, which he did. MM got dressed and put a torch under her pillow. They
both went to sleep and MM took the opportunity to take the torch and shoes. She
left the house and ran through the bush during the night to a residence some
distance away. From cross-examination she agreed that at the committal
proceedings she said that the appellant “didn’t get it in” but reiterated in reexamination that there had been penetration “but not far at all”.
[126]
[127]
The accused produced in evidence a video tape which he had taken during the
evening. The first part of the video tape showed the two of them while they were
eating, drinking, laughing, talking and having fun. He said that he ceased filming
during an episode of sexual activity but which, on his description, was completely
different to that described by MM. The later part of the video showed her naked
and on my view particularly comparing her to her appearance earlier on the video
looking rather nervous and frightened. At one stage though Phillips made a joke
and she briefly smiled.
Phillips’ evidence was that in the early hours of the morning there was some sexual
activity. He said they were lying down changing music, lying on their stomachs
resting on their elbows looking through CD’s. He said “and it just sort of
eventuated from there like just touching, flirting and stuff like that”. He said “so I
went a bit further and just started kissing a bit and it then just sort of led to, like, just
a bit more touching like the stomach and just rub each other. She was like touching
my chest and stuff like that.” According to him they each got undressed. He said
“she went down on me for a little bit not long. I couldn’t say how long.” When
asked “did you touch anywhere near the genitals?” he replied “Yeah, probably like
just up top and that just like up the top like around, I didn’t have sex with her”. He
expressly denied having sexual intercourse. He denied threatening the complainant
with a bat and also denied masturbating in front of her.
Count 8: JD
[128]
MM was the first of the Innisfail complainants to make a complaint to police. Upon
receiving her complaint the police made further inquiries and subsequently received
complaints from BS, TK, ML and SW. The accused was charged with those
offences and brought before the Innisfail Magistrates Court. He was refused bail for
a time but was subsequently released. Upon his release he and his mother moved to
Brisbane where they commenced living in a large home on small acreage in
Burbank, a bay side suburb in the south of Brisbane. After a time Phillips started to
go out socially and make a few friends amongst people about his own age. He met
JD on a night in May 2003 at the Wellington Point Hotel. Phillips invited the group
of young people back to his parents’ place at Burbank for a party and they accepted.
The group played pool and smoked some marijuana over several hours and when
the party ended JD went home. About 2.30 in the morning on 11 May 2003 Phillips
phoned JD and told her that he was organising a group of people to go back to his
place to play pool and he invited her to join them. She agreed and about 15 minutes
later she was picked up by the appellant’s mother in a car with the appellant and
driven back to the Burbank home. Phillips told JD that about 10 people were
coming but nobody else turned up so that there was just JD and Phillips there on
their own. He told her that his friends had ditched him for the city. JD and Phillips
played some pool, smoked a little marijuana and drank some alcohol. The distinct
impression I got from JD was that the evening was generally fairly pleasant and
56
they were cheerfully getting along well with each other. However, she describes
that at one stage he tried to put his hands up under her shirt but she pushed him
away. She said he also offered her $15 to take her shirt off and when she refused he
offered her $20. It is important to note that these two incidents were denied by
Phillips in his evidence and he swore that they did not happen. If that were so then
JD was telling lies. Although it was apparent from JD that these matters were
unwelcome by her they were not such as to cause her alarm or to want to leave. At
a later stage Phillips picked up a piece of thick chain which was described as a
necklace, and held it up in a way which according to the complainant “scared the
crap out of me really”. Her evidence was that he walked up behind her and
attempted to put it around her neck. It was clear that the gesture was unexpected by
JD and it gave her a fright and caused her to decide to leave. However it was also
clear from her evidence that when she showed fright at what was happening Phillips
desisted and put his hands up in a gesture suggesting she should calm down.
[129]
In any event JD decided that she should leave. There had been talk about Phillips’
sister driving her home but he did not wake his sister up to do so. She said that she
would get a cab. Phillips refused to give her the address so that she could order a
taxi. She then went to walk out of the door but Phillips blocked her way. She had
taken her shoes off and they were near the door. When Phillips blocked her way
she noticed that his penis was erect. He also grabbed her shoes and played a little
game with her holding one shoe out to give it to her and then snatching it away just
as she reached for it. The obvious inference was that he wanted her to stay but at
this stage there had been no violence. Eventually she turned to leave without her
shoes. Phillips handed her shoes and then as she turned around to leave he grabbed
her around the wrists. She tried to pull away but she couldn’t get away from him.
She was telling him to let her go. He then got her from behind in a bear hug over
her arms so that they were stuck to her body and picked her up off the ground. He
started walking her towards a shed. She said she was almost in tears and was saying
things like, “please no” and telling him to let her go. She was struggling. She could
feel his erect penis against her back. He carried her to a shed where he attempted to
open a door whilst still holding onto her. He could not get the door open. He then
went to the other side of the shed where there was a window. He pushed JD up
against the shed whilst still holding onto her, leaned up and opened the window. He
then tried to push JD up through the window. She kept telling him to “fuck off and
let me go” and he kept telling her to get in the window. She said at this stage she
was yelling at him really loudly. This episode was interrupted when Phillips’
mother arrived on the scene although JD said that Phillips told his mother to “fuck
off” and continued to try to push her through the window for a short time
afterwards.
[130]
According to Phillips he and JD drank, smoked some marijuana and played pool.
According to him they walked down to the shed looking for some more marijuana at
around daybreak when his mother came along. He told her they were doing nothing
and she walked away. Shortly after this JD left. As I have said he denied trying to
put his hands up under her shirt, he denied offering her money to take her shirt off
and he denied trying to put the necklace around her neck. And he denied any
incident involving grabbing her, carrying her down to the shed and trying to push
her through the window.
[131]
As is apparent from the judgment of the High Court, the Justices realised that as the
evidence unfolded and as the accused gave evidence additional material facts in
57
issue arose in some cases and the possibility of the alternative charges arose in
others. As a result of that my view as to the material fact in issue to which the
propensity evidence could relate changed. The High Court interpreted this as a
retreat from my view expressed before trial that the evidence of all of the
complainants was admissible to prove the offences alleged to have been committed
against each one of them. This was a misconception and the High Court has not
referred to any passage in the transcript in which I expressed such a view. I altered
my view as to the material fact in issue to which the combined evidence could relate
in order to ensure that it was not used impermissibly in relation to other material
facts still at issue to which, in my view, it was not relevant.
[132]
Firstly, as to the acts constituting each of the offences charged the carnal knowledge
and mouth on penis acts in counts 1 and 2 were not disputed. However the absence
of consent was vigorously disputed in respect of both of those counts. In relation to
count 3 TK both carnal knowledge and the absence of consent were in dispute. In
addition because TK’s evidence about the carnal knowledge described a very brief
and partial penetration counsel agreed that the alternative verdicts of attempted rape
and sexual assault should be put to the jury. Under those circumstances different
issues arose but in both of those offences the absence of consent was still a material
fact in issue.
[133]
In relation to ML, counsel agreed that mistake of fact was open on the evidence and
that should be left to the jury. In relation to count 4, the carnal knowledge was not
conceded. On the evidence of SW it was open to the jury to consider the reasonable
possibility that she was mistaken as to actual penetration. Phillips himself in
evidence said he wasn’t sure whether he penetrated her. In addition, for similar
reasons to that applying in the case of ML, counsel agreed that mistake of fact was
an issue that should be left to the jury. There was also the alternative verdict in
relation to an offence of unlawful carnal knowledge. In relation to counts 6 and 7
carnal knowledge was a material fact in issue. Phillips denied any carnal
knowledge. Further, on MM’s own evidence it was open to the jury to conclude
that whilst she might have been telling the truth about everything else, her evidence
as to the carnal knowledge was unreliable. Therefore both carnal knowledge and
the absence of consent were disputed material facts in issue in relation to counts 6
and 7. In addition there were four alternative charges. The alternative of attempted
rape was open if the jury concluded that there was absence of consent but no
penetration. The other alternative verdicts followed accordingly.
[134]
I formed the view that the combined evidence of all of the girls could not logically
be used to prove carnal knowledge in the case of TK, SW and MM. I formed the
view that the evidence of BS, TK, MM and JD could not be used by a jury in
relation to the issue of mistake of fact arising in respect of ML and SW. However,
I formed the view that the combined evidence was relevant and admissible to prove
the common material fact in issue of the absence of consent in respect of all of the
counts charged and in respect of the alternative counts of attempted rape and sexual
assault in relation to TK and the attempted rape in respect of MM. It was in the
interests of ensuring a fair trial for Phillips that the jury not be permitted to use the
combined evidence in relation to any other material fact in issue in dispute.
[135]
I will now turn to discuss the judgment of the High Court in the case. Firstly, the
appeal to the High Court raised an issue for the first time. For the first time it was
argued on Phillips’ behalf that propensity evidence from other complainants could
58
not be used to prove the absence of consent because the absence of consent was a
matter of the state of mind of each complainant. The argument was that it was just
not an issue which was amenable to the use of propensity evidence. This was never
argued before me on behalf of Phillips. It was never argued in the Queensland
Court of Appeal on behalf of Phillips. It is obvious that the justices of the High
Court accepted the argument. I will set out the passage which deals with the issues
at p 443:“Difficulties in this case arise from the narrowness of the purpose
for which the similar fact evidence was admitted. An initial
difficulty in the trial judge’s approach, as counsel for the appellant
said, was that strictly speaking it was not correct to say in a
practical sense the issue in relation to all complainants was consent.
For three of them it was (counts 1-2, 4 and 5); but for the other
three it was whether the appellant had done the acts alleged (count
3 and 6-8). And in relation to two of the first group of three counts
there was an issue as to whether the appellant had made an honest
and reasonable mistake of fact about consent (count 4 and 5). On
counts 3 and 6-8, in theory issues of consent would arise if the
evidence of the complainants that the appellant did to them what he
denied doing were accepted by the jury; but if their evidence on that
issue were accepted, it would be unlikely that their evidence on
consent would be rejected.
Another difficulty is that the narrowness of the purpose limited the
probative value of the evidence but left open the risk of the
evidence having a prejudicial effect on issues other than consent.
The trial judge strenuously endeavoured to overcome that problem
by his directions to the jury, and no complaint was made about
those directions.
But another difficulty to which counsel for the appellant drew
attention, could not be overcome in that way. Normally similar fact
evidence is used to assist on issues relating only to the conduct and
mental state of an accused. Did the accused do a particular thing?
Or did the accused do it with a particular mental state? But where a
particular count supported by one complainant’s evidence raised the
issue of whether she consented to certain conduct by an accused,
the issue relates much more to her mental state than his. The trial
judge kept referring to “the improbability of similar lies” on that
issue. That is an expression used by Mason CJ, Wilson and
Gaudron JJ in Hoch v The Queen; however as counsel for the
appellant pointed out they used it not on the question of whether the
complainants in that case consented, but on whether the accused
behaved towards them as he said he did. To tell the jury that the
evidence went to the improbability of each complainant lying or
being unreliable about consent was to say that a lack of consent by
five complainants tended to establish a lack of consent by the sixth.
Neither the Courts below nor counsel for the respondent cited any
case in which similar fact evidence of complainants is said that they
did not consent was led to show that another complainant had not
59
consented. Whether or not similar fact evidence could ever be used
in relation to consent in sexual cases, it could not be done validly in
this case. It is impossible to see how on the question of whether
one complainant consented, the other complainants’ evidence that
they did not consent, had any probative value. It does not itself
prove any disposition on the part of the accused: it proves only
what mental state each of the other complainants had on a particular
occasion affecting them, and that can say nothing about the mental
state of the first complainant on a particular occasion affecting her.”
[136]
In relation to the first paragraph of the above passage, I can only say that it is just
not correct. In some cases it might be the case that if the jury accepts that carnal
knowledge occurred they would be likely to accept the complainant’s absence of
consent. However, carnal knowledge and absence of consent are two discrete
elements of the offence of rape and that was particularly so as I have explained in
paragraphs [132-134] above. To take TK as an example, it was accepted by both
sides that her evidence as to carnal knowledge was equivocal. That was why
attempted rape and sexual assault were put to the jury as alternatives. It was
accepted that even if the jury were satisfied beyond reasonable doubt that she was
telling the truth about the incident as a whole she might be mistaken as to whether
penetration had occurred.
[137]
It was open to the jury to consider the issue of penetration first and then decide
whether she was telling the truth about the absence of consent. But they were by no
means obliged to do so. In fact, in my view, it would have been far more logical for
the jury to consider her truthfulness about the whole incident first and then consider
the possibility of her being mistaken about the penetrations. Unless they were
satisfied beyond reasonable doubt that she was telling the truth about Phillips’
conduct relating to the absence of consent, there was no need to consider the issues
of carnal knowledge, attempted rape or sexual assault.
[138]
At page 445 the judgment contains the following:“Despite that passage, and despite the reformulation of the tests
stated in Pfennig v The Queen in R v O’Keefe, neither of those cases
departed from a fundamental aspect of the requirements for
admissibility; the need for similar fact evidence to possess some
particular probative quality.
The “admission of similar fact
evidence…is exceptional and requires a strong degree of probative
force”. It must have “a really material bearing on the issues to be
decided”. It is only admissible where its probative force “clearly
transcends its merely prejudicial effect”. “[I]ts probative value must
be sufficiently high: it is not enough that the evidence merely has
some probative value of the requisite kind.” The criterion of
admissibility for similar fact evidence is “the strength of its probative
force”. It is necessary to find “a sufficient nexus” between the
primary evidence on a particular charge and the similar fact
evidence. The probative force must be “sufficiently great to make it
just to admit the evidence, notwithstanding that it is prejudicial to the
accused”. Admissible similar fact evidence must have “some
specific connection with or relation to the issues for decision in the
subject case”. As explained in Pfennig v The Queen:
60
“[T]he evidence of propensity needs to have a specific
connection with the commission of the offence charged,
a connection which may arise from the evidence giving
significant cogency to the prosecution case or some
aspect or aspects of it.”
(Footnotes omitted)
[139]
[140]
[141]
The above observations are no doubt important words of caution. However they
add nothing to the Pfennig test. They explain why propensity evidence is only
admissible if there is no reasonable inference consistent with innocence. If there is
no reasonable inference consistent with innocence then the evidence will have
“particular probative quality”. The evidence will have “a strong degree of probative
force”. The evidence will have “a really material bearing on the issues to be
decided”. If it passes the Pfennig test then its probative force will “clearly transcend
its merely prejudicial effect”. Its probative value will be sufficiently high. If it
passes the Pfennig test it will have “a sufficient nexus”. If the evidence passes the
Pfennig test its probative force will be “sufficiently great to make it just to admit the
evidence notwithstanding that it is prejudicial to the accused”. If the evidence
passes the Pfennig test then it will have “some specific connection with or relation
to the issues for decision in the subject case”.
The judgment noted “The trial judge kept referring to “the improbability of similar
lies” on that issue. That is an expression used by Mason CJ, Wilson and Gaudron JJ
in Hoch v The Queen;” In my respectful view this grossly understates the
importance of the expression used by the majority judgment in Hoch. In fact, the
majority in Hoch said “When the happenings which are said to bear to each other
the requisite degree of similarity are themselves in issue the central question is the
improbability of similar lies”. Further, this process of reasoning was approved by
the majority in Pfennig when it was said, “When the propensity or similar fact
evidence is in dispute it is still relevant to prove the commission of the acts
charged” and “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.”
There then appears a long paragraph setting out a series of rhetorical questions to
which the High Court obviously thought the answer was no. The judgment went on
at p 444:“Evidence by other complainants that they had not consented to the
sexual acts allegedly performed on them by the appellant had no
more probative value than evidence by them that they had not
consented to the performance of sexual acts on them by persons other
than the appellant. Like the evidence of the other complainants in
this case, evidence of that kind may demonstrate some “propensity”
in particular complainants, but it demonstrates nothing about the
appellant. In short, as counsel for the appellant submitted, the
evidence, tendered as it was on the issue of the consent of each
complainant, was irrelevant to that issue. “Evidence is relevant if it
could rationally affect, directly or indirectly, the assessment of the
probability of the existence of a fact in issue in the proceeding”.
Evidence that five complainants did not consent could not rationally
61
affect the assessment of the probability that a sixth complainant did
not consent.”
[142]
There are a number of problems with this line of reasoning in this particular case.
The first and most important problem is that the Court had no regard to the actual
evidence in this case. This was not a case in which the evidence of the absence of
consent was simply that of the six complainants saying, “I did not consent”. As
may be observed from the summary of the evidence set out above there was
evidence from each of the complainants of acts of violence by the accused and
resistance and objection on the part of the complainant. That evidence described the
behaviour and state of mind of the accused. It had nothing to do with the state of
mind of the complainants. If the complainants had never actually said in evidence
(which in fact most of them didn’t) that they did not consent to the act said to
constitute the offence, there was ample evidence which, if believed by the jury,
would have entitled them to conclude that the appellant’s own conduct and his
obvious state of mind in engaging in that conduct proved the absence of consent.
Just as importantly, on the accused’s account of his own innocence the evidence of
each of the girls as to the accused’s conduct, their own objection and resistance was
a lie. Therefore the similar lies which they were telling, if the accused was
innocent, did in fact relate to the accused’s conduct and attitude and not just to their
own state of mind.
[143]
The second problem is that in my respectful view the justices of the High Court
failed to adopt the correct reasoning process. They assumed that the reasoning
process involved assuming the truth of the evidence of five of the girls and seeing
whether that supported the truth of the evidence of the sixth. But in no way did they
identify which five I or the Court of Appeal was supposed to select as the ones we
assumed the truth about. Nor did the High Court give any indication of which five
they thought would be appropriate. Perhaps they thought that a trial judge when
carrying out the exercise would in fact carry out six exercises, where in relation to
one complainant he assumed the truth of the evidence of the other five in deciding
the questions of admissibility and then move on, conducting a similar exercise in
relation to each of the other five complainants. Recalling that Pfennig requires the
trial judge to apply the same test as a jury must apply, if the approach of the High
Court were translated into a direction to a jury, the jury would have to be told that
before they could use the evidence of any of the girls in relation to any other, they
first had to accept the evidence of five of the girls. They could then use that
evidence in support of the sixth. If this were correct then the evidence could only
ever be used to support one complainant. This is just not the reasoning process in
Hoch, Boardman, Kilbourne, Simms and Moorov. Further, the summing up was
expressed in terms consistent with Moorov, Simms, Kilbourne, Boardman, Hoch
and Pfennig. As I will demonstrate later, when the High Court eventually did
consider some of the evidence of the girls they in fact did consider all of that
evidence together. Further, there was nothing in the summing up in Phillips’ case
on the use that may be made of the combined evidence of all of the girls to suggest
that the reasoning process adopted by the High Court of Australia was appropriate.
The summing up did not invite the jury to take the view that because they believed
one or more girls didn’t consent that they could use that in deciding whether some
other girls consented. No complaint was made about the summing up on Phillips’
behalf. The following passages from the summing up on the subject are
instructive:-
62
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
“I need to give you very careful direction as to how you may use the
evidence of all the girls in combination, all six girls in combination,
because you may only use it in a very limited way.”
“First of all you cannot use it unless the evidence of each of the six
girls is independent. Therefore I direct you, you cannot use the
evidence of all of the six girls in combination unless you are satisfied
that there is no real risk that the evidence they have given in the trial
is untrue by reason of concoction.”
“However if you are satisfied that there is no real risk of concoction,
no real risk that the evidence they have given is untrue as a result of
concoction, in considering any incident relating to one girl you may
have regard to the evidence of all of the other girls.”
“So you have to ask yourselves this, what are the probabilities that
all six girls have lied when they say they did not consent to PS
dealing with them sexually. If you think it could possibly be just an
unlucky coincidence then you consider each incident and the
evidence of each girl completely separately and you reach your
verdict in light of your view of the evidence relating to each incident
completely separately. But if you are satisfied that the only
reasonable conclusion to be drawn is that they are all telling the truth
when they say they did not consent to PS dealing with them sexually
then you may use that conclusion in your thinking along the path to
deciding whether PS is guilty or not guilty of each of the offence.”
“I will say it again consider all of the girls’ evidence. If you are
satisfied that the only reasonable conclusion to draw is that they are
all telling the truth when they say they did not consent to PS dealing
them with sexually, then you may consider your verdicts on that
basis.”
“…you cannot use any sort of “where there’s smoke there’s fire”
type of reasoning. You cannot say to yourselves “Oh well, they can’t
all be telling lies, therefore, they must all be telling the truth”; you
cannot decide for instance that you believe one or two girls and then
say “Well, we’re satisfied he’s raped on two occasions therefore he’s
more likely to have raped on the other occasions, therefore, we’ll
find him guilty of the lot.””
“You might say “Well look, they can’t all be lying.” But what if
one’s lying? If one is telling lies and you were to convict PS of an
offence in relation to that girl then that would be unjust and not
according to law.”
“So I will remind you again you may only use the evidence of all six
girls in combination in relation to the question of whether or not all
of the girls are reliable when they say they did not consent to PS
dealing with them sexually. You may only use the evidence of all
six girls in combination if you are satisfied that the only reasonable
conclusion to be drawn after considering the evidence, is that they
are all reliable when they say they did not consent to PS dealing with
them sexually. It’s all or nothing.”
In my respectful view, the judgment of the High Court failed completely to
understand the reasoning process involved when the central question is the
improbability of similar lies. This is surprising because the judgment of the Court of
63
Appeal, the very decision which was appealed against in Phillips, set out relevant
passages from Sims, Kilbourne, Boardman, Hoch and Pfennig. The High Court did
not even discuss them.
[144]
In identifying the issue to which the propensity evidence was admitted at trial, the
High Court said as follows. “Thus in the summing up the trial judge relied on a
formula embodied in the question: “What are the probabilities that all six girls have lied when they say
they did not consent to [the appellant] dealing with them sexually?”
That sentence appears in my summing up in a passage set out above. But what the
High Court paid no attention to was the evidence to which the jury could have
regard in deciding whether or not the girls had told lies about the accused’s conduct
in relation to the question of consent. In the passages from the summing up I have
set out above I have referred frequently to “the evidence” of the girls. Nowhere in
the summing up was any reference to “the evidence” of the girls qualified by
limiting that term solely to their evidence that they did not consent. In fact,
elsewhere in the summing up the jury was reminded of the evidence of each of the
girls concerning the relevant events and which went to the issue of consent. In my
view the words “when they say they did not consent to PS dealing with them
sexually” identified the material fact in issue in a way which the jury could easily
understand. It does not identify and limit the evidence which the jury were able to
use in the way that the High Court apparently assumed.
[145]
Perhaps the summing up on the use which could be made of the evidence of all six
girls in combination on the issue of consent could be criticized for not directing the
jury specifically to the evidence of each of the girls which bore on the issue of the
improbability of similar lies. However, this was not a criticism which could have
been made on behalf of Phillips. As the trial transcript demonstrates (p 1390-1420)
I engaged counsel in discussion about the features of the evidence of the six girls
which I thought bore upon the issue of improbability of similar lies. Senior Counsel
for Phillips effectively asked me not to go into that with the jury because it would
sound like I was supporting the prosecution case.
[146]
Later in the judgment the High Court did give some brief consideration to the
evidence following a submission by the Director of Prosecutions which the Court
summarised as follows at p 444:“The present cluster of relevant similarities between each
complainant’s version becomes compelling not through any unusual
hallmark but because out of all of the infinite variety of allegations
and descriptions that could be invented, this combination of features
of a particular type of sexual assault is repeated by so many different
women from within a defined group, but independent of each other.”
[147]
As may be observed the Director of Prosecutions in this single argument identified
the reasoning process involved when the central question is the improbability of
similar lies when she used the words “because out of all the infinite variety of
allegations and descriptions that could be invented, this combination of features of a
particular type of sexual assault is repeated by so many different women from
within a defined group, but independent of each other.”
64
[148]
At p 446 the High Court responded to the submission with the following:“The similarities relied on were not merely not striking, they were
entirely unremarkable. That a male teenager might seek sexual
activity with girls about his own age and with most of whom he was
acquainted, and seek it consensually in the first instance, is not
particularly probative. Nor is the appellant’s desire for oral sex, his
approaches to the complainants on social occasions and after some of
them had ingested alcohol or other drugs, his engineering of
opportunities for them to be alone with him, and the different degrees
of violence he employed in some instances. His recklessness in
persisting with this conduct near other people who might be attracted
by vocal protests is also unremarkable and not uncommon.”
[149]
There are a number of problems with this reasoning process. Firstly, it is
incomplete. It takes no account of the numbers involved. I would venture to
suggest that the justices of the High Court of Australia would have difficulty in
dismissing the conduct of a teenager in raping or seriously sexually assaulting six
different women in the space of three years as unremarkable and not uncommon.
[150]
The Court here was exercising its own logic, reason, experience of the world and
experience of its fellow human beings. That is the proper function of an appellate
court in a case like this and I would not detract from it. I acknowledge that the
justices of the High Court of Australia were entitled to form those views according
to their own reason and experience. I feel bound to say however that I do not share
the depressing view of teenage boys which the justices appear to have. I have no
difficulty accepting that a male teenager might seek sexual activities with girls
about his own age with whom he was acquainted. In fact in my view that is not
only unremarkable, it is quite common. Nor would it be unremarkable or
uncommon that a teenage boy seeking consensual sexual activity with girls about
his own age would do so in the various circumstances described. However I cannot
agree that it is unremarkable and not uncommon for a teenage boy to resort to the
different degrees of violence he employed in the six incidents under examination in
this case if the girls were telling the truth. In my experience of life, my experience
of my fellow human beings, and in my legal and judicial experience the vast
majority of teenage boys never resort to any degree of violence at all in order to
secure non-consensual sexual activity with a girl of their own age. Further, my
reason, my logic, my experience of the world and my fellow human beings,
including legal and judicial experience, is that it is extremely uncommon for one of
that small minority of teenage boys who might resort to violence, to do so as
frequently as six times in the space of less than three years. Further, in my
experience of the world and my fellow human beings including judicial experience
it is even rarer for a person of such inclination to engage in the conduct near other
people who might be attracted by vocal protests. However, none of the above was
to the point. The point was not whether what the girls said Phillips did was unusual
but the improbability that all six girls would make up similar lies.
[151]
It may be observed that in the only examination of the actual evidence in the case
embarked upon by the High Court, the justices did not themselves adopt the
reasoning process of assuming the truth of the evidence of five of the girls and then
examining how it might make the evidence of the sixth more likely to be true. They
assumed the truth of the evidence of all of the girls. There is a fundamental
65
problem with this line of reasoning. In my respectful view it is contrary to logic. It
assumed the truth of the material fact in issue. It assumed the truth of the material
facts in issue and then determined the question of admissibility on the basis of
whether or not it is remarkable or unremarkable or not uncommon. This is not the
reasoning process involved when the central question is the improbability of similar
lies. Nowhere in any of the judgments in Pfennig, Hoch, Boardman, Kilbourne or
Simms do the judgments suggest that admissibility is determined by assuming the
truth of the material facts in issue and then determining whether it is unusual or
unremarkable or uncommon or some other such expression. In fact such an
approach was expressly rejected by Lord Cross of Chelsea and others of their
Lordships in Boardman. In my view it is illogical to attempt to determine whether
evidence proves a fact in dispute by assuming the truth of the fact in dispute. It only
needs to be stated to demonstrate the illogicality. If you assume the truth of the fact
that is in dispute, there is no need to ask any question, it automatically is proved.
Whether or not the actions of the accused described by the six complainants were
usual or unusually common or uncommon, remarkable or unremarkable was
completely beside the point. The real point was the objective improbability of these
six complainants, independently of each other, fabricating six accounts having such
similar features.
[152]
There is authority which supports this proposition. Perry v The Queen [1982] 150
CLR 580 was an appeal to the High Court of Australia from the Court of Criminal
Appeal in South Australia. Mrs Perry was charged with poisoning a member of her
family with arsenic. There was propensity evidence that she had poisoned other
members of her family with arsenic. That evidence was admitted and she was duly
convicted. The issue before the High Court was whether the propensity evidence
had been rightly admitted. The High Court of Australia concluded that it was not
rightly admitted. In particular, the judgments of the Court of Criminal Appeal were
criticised because in the reasoning process pursuant to which they held that the
propensity evidence was admissible, they assumed the material fact in issue, namely
that the nephew died from arsenic poisoning. Whether the Court of Criminal
Appeal was deserving of such criticism I do not know. However, it is tolerably
clear from the judgments of the justices of the High Court in Sutton’s case that the
members of the Court of Criminal Appeal of South Australia were stung by the
criticism and responded somewhat to it. In relation to that matter Brennan J said at
p 552 of Sutton:“It is a canon of logic rather than of law, that one cannot prove a fact
by a chain of reasoning which assumes the truth of the fact. That
canon has a particular application in determining the cogency and
hence the admissibility of similar fact evidence. When the Crown
seeks to tender similar fact evidence as the foundation for inferring a
fact to be proved it is erroneous to assume the truth of the fact to be
proved in determining the cogency of the evidence. That is a
proposition of general application; it is not limited to the facts of
Perry or to cases bearing a close factual similarity to it.”
[153]
In my view it is just as illogical to assume the truth of the material fact in issue in a
process of reasoning which rejects admissibility. It is impossible in my view to
assume the truth of a material fact in issue and then conclude that it is not proved
without offending a “canon of logic”. The reasoning process adopted by the High
Court in this case would have been entirely appropriate if this had been a case, like
66
Sutton, in which identity was an issue i.e. assume the truth of the complainant’s
account of the relevant events and then consider whether there is any reasonable
possibility (inference) that all the offences were committed other than by the same
person. In my respectful view it was inappropriate in a case in which identity was
not an issue and the issue was whether or not the offence or an essential element of
the offence happened at all.
[154]
In the offence of rape there are potentially two material facts in issue –
(a)
the fact of carnal knowledge
(b)
the fact that the accused achieved carnal knowledge by force, threats,
fraud etc.
Whether the accused put in issue one or other or both the question is still whether
the offence was committed at all.
[155]
In my respectful view the appropriate reasoning process to be adopted in Phillips
case was as follows. False complaints of rape and serious sexual assault are
relatively rare but they do happen. However my objective experience is that the
vast majority of men go through their lives without ever being on the receiving end
of any complaint of rape or sexual assault let alone a false one. Of course false
complaints can and do happen and it cannot be known whether any single complaint
is false or true without an examination of the evidence. However the objective
improbability of one man being the unfortunate victim of six false complaints of
rape and serious sexual assault within the space of three years and before his 19th
birthday in my view is enormous.
[156]
Further, if the complaints from these girls were false they all came from what I
would consider to be a rather unexpected source. Phillips gave evidence about his
relationship with all of these girls. He put the basis of his innocence before the
Court. If he was innocent, by the time BS left his parents’ home the morning after
the alleged rape she was much more than a brief acquaintance. She was not just
indifferent to him, not just mildly friendly to him. She had taken such a liking to
Daniel Phillips that she actively sought to be alone with him, to have sexual
intercourse with him, and having done so, slept the night with him.
[157]
TK was undoubtedly a very close friend of Phillips. She looked upon him with
great warmth and affection. She considered him to be one of her best friends.
According to Phillips she was also willing to engage in intimate sexual activity with
him.
[158]
If Daniel Phillips was innocent then whilst he might have started out the night with
ML as someone with whom he was acquainted and perhaps mildly friendly, once
again, on the basis upon which he put his innocence in issue, it was she who made
the first move to engage in sexual activity. Throughout the whole episode
according to Daniel Phillips she was an active and enthusiastic participant.
[159]
In relation to SW, although they hadn’t met before the night in question, by the end
of the night according to Phillips she had enthusiastically engaged in mutual
massage, she had led him into her sister’s bedroom, actively led the way in giving
him oral sex, lay down and spread her legs for intercourse and even gave him a
condom. By the end of the night she was much more than simply a young woman
he had just met. She was an enthusiastic and very willing sexual partner.
67
[160]
MM had a friendly relationship with Phillips and, if he was innocent, had willingly
engaged in sexual activity including permitting him to film her while she was
naked.
[161]
JD was one of a small group of friends which he had made upon moving to
Brisbane not long before the night in question. She had been to his home. She
clearly must have felt some degree of warmth towards him because she accepted an
invitation to go back to his home for a party a second time. When she learnt that no
others were attending, that it was going to be just the two of them she showed no
inclination to leave. She stayed there sharing the company of Phillips for some
considerable time. She clearly by that stage in my view looked upon him as a
friend.
[162]
When a single false complaint against a man is made it can never be known where it
might come from. However, in my experience of the world, my experience of my
fellow human beings and my judicial experience the relationships which Phillips
had with these six girls were not the sorts of relationships from which a false
complaint might have been expected. When there is only one complaint one can
never know. I certainly would not exclude as a possibility that a friend or lover
might make a false complaint against a man. But I find it beyond any reasonable
possibility that the one man would be the victim of six false complaints of rape or
sexual assault in such a short space of time from six girls who were either friends or
willing sexual partners or both. Such a possibility defies reasonable belief.
[163]
In my view the two factors to which I have referred above, excluded any reasonable
possibility that all of the girls were lying. But in the context of this case that alone
may not have been enough. There may still have been a possibility that one
amongst them was making a false complaint. However there is another factor
which in my view addressed that possibility.
[164]
There is one feature of all of their accounts which in my view was highly unlikely to
be fabricated. It may seem a relatively minor matter that just slipped in as part of
the account given by the girls. But in one respect it is because it is so minor that it
seemed to me highly improbable that it would be included in all of their stories
unless they were true. SW described how there was a mutual massage and how
Daniel Phillips led her into her sister’s bedroom. She describes how he commenced
the sexual activity in that bedroom and how she went along with it. Her description
of the accused is that he was simply going along with a consensual sexual encounter
which he was no doubt enjoying and which she was willing to take part in. There
was no sign of any inclination on his part to turn violent. He was simply a young
man enjoying consensual sexual activity like any other young man. However, she
gives evidence that once she tried to stop him and showed signs of resistance and
objection, he immediately turned violent and proceeded to rape her. If Phillips was
innocent this was a lie.
[165]
BS describes Phillips suggesting that she should give him a kiss. Up until that stage
there had been no violence of any sort whatsoever, actual or threatened. At that
stage he was simply a young man enjoying the company of a young woman of
about his own age. However, according to her, immediately she rejected him he
then became violent and proceeded to sexually assault and rape her. According to
Phillips this was a lie.
68
[166]
TK describes how when they were sitting on the top of the stairs he tried to kiss her
and told her that he liked her. He was just another young man trying to engage in a
gesture of affection and possibly proceed to some consensual sexual activity if such
was available. But immediately she rejected him he turned violent. According to
Phillips this was a lie.
[167]
ML describes how there was no violence on his part initially. He did not drag her
forcefully down the side of the house. He did not force her to sit on the ledge. And
indeed he commenced the sexual activity in a non-violent way by starting to kiss
her. This is by no means an unusual way for a young man to commence a hoped for
seduction of a young woman. No suggestion of violence at all. However when she
told him to “fuck off” and started to resist, he immediately turned violent. He took
no notice of her objections and such physical resistance as she could offer in her
drunken state. He proceeded on her account to rape her. According to Phillips this
was a lie.
[168]
MM told a similar story. Everything was friendly, happy and jovial. No sign of any
violence on the part of Phillips. He then asked her for a kiss in a friendly, nonthreatening way. She refused. He then went downstairs and got the bat and then
threatened her with violence in order to obtain his sexual gratification. According
to Phillips this was a lie.
[169]
According to JD, whilst the two person party was proceeding, he attempted to put
his hands up under her shirt. It was obvious that this was unwelcome and she
rejected him. But it was obviously not a violent or threatening gesture and it seems
that he desisted. The same with his offer of money for her to take off her shirt. She
may have been mildly offended at the time but that offence was not great enough to
cause her to want to leave. However, those two matters and her account of the
incident with the necklace, if Phillips were innocent were lies. She made those little
bits up. He said that they didn’t happen at all. That means that in her fabricated
story she included as part of her lie three attempts by Daniel Phillips to engage her
in consensual sexual activity.
[170]
In my experience of life it is somewhat unlikely that a girl would include such a
feature in a fabricated account of a rape or serious sexual assault. If these girls were
lying, as they must have been if Phillips was innocent, they were very wicked girls.
They were all old enough to know that their false complaints, their fabricated
stories, could have severe consequences for Daniel Phillips. They most likely
would have been thinking about the false story they were going to tell and
concentrating all their creative talents on making Daniel Phillips look bad. If that
be the case it seems unlikely to me that SW would admit that she willingly engaged
in giving Phillips oral sex rather than simply say that he became immediately
violent as soon as they got inside her sister’s bedroom. It seems unlikely to me that
TK would say that Phillips tried to kiss her and told her that he really liked her
rather than simply say that he took her completely by surprise, picked her up, took
her downstairs and threw her onto her brother’s bed. It seems unlikely to me that
ML would say that Phillips tried to kiss her rather than say that once they got out of
sight down the side of the house he immediately became violent and forcibly
removed her pants. It seem unlikely to me that BS would say that Phillips
suggested that she should give him a kiss rather than simply say that he suddenly
came back into the room and attacked her without warning. It seems unlikely to me
that MM would include in her lie that Phillips asked her for a kiss a number of times
69
rather than simply say that he got the sledge hammer handle and threatened her
without warning. It seems unlikely to me that JD would include in her lie that
Phillips tried to put his hands up her shirt and offered her money to take off her shirt
but she was not sufficiently offended to leave immediately rather than simply say
that he grabbed her without warning as she started to leave and carried her off
towards the shed. It may have been within the realms of possibility that one of them
might have included such a feature in a fabricated account. But in my view the
notion that all of them could have was fanciful and way beyond the realm of any
reasonable possibility. It was so improbable that the only reasonable inference to be
drawn was that they were all probably telling the truth when they described Phillips
as initially looking for consensual sexual activity and immediately becoming violent
when rejected.
[171]
This case contains a good example of a dissimilarity which, rather than detracting
from the improbability of similar lies, adds to it. If the above reasoning process was
applied to the Innisfail girls it would mean that, if Phillips was innocent, 5 girls, all
about the same age, all from the same small North Queensland community, all
friends, or lovers or both with Phillips, all fabricated a false account of rape
containing the feature of him initially seeking consent and did so within a period of
18 months. In my view that was so improbable that the only reasonable inference
was that they were all telling the truth.
[172]
There was then a gap of 18 months before JD from Brisbane made what also must
have been a false complaint if Phillips was innocent. Brisbane has a population of
about 1 million people and is more than 1500 km from Innisfail. However, the time
gap was of no great significance because Phillips spent some of that time in
custody. After moving to Brisbane he took some time to start going out socially.
He met JD only a few weeks before she made her complaint. On the evidence she
was the only female friend he had made in Brisbane. Against the background of the
Innisfail girls what were the chances (probabilities) of JD making a false complaint
of sexual assault containing the same feature as that of all of the Innisfail girls? In
my view the chances were remote in the extreme, so remote that the only reasonable
inference to draw as that they were all probably telling the truth. The dissimilarities
were of no consequence to the improbability of similar lies.
[173]
There is one final matter about the judgment in Phillips which needs comment. At
p 447 the Court said as follows:“Having regard to the basis upon which the present appeal should be
decided and to the course taken in argument it is sufficient to make
only two points. Firstly, Pfennig v The Queen must be understood
against the background of the decisions, especially the decisions of
this Court, that preceded it. Second, taking sentences or part of
sentences in reasons for judgment and divorcing them from the
context in which they sit is to invite error. Thus the references in
Pfennig v The Queen to propensity evidence being a form of
circumstantial evidence must be understood against the background
of what was said in Martin v Osborne, Plomp v The Queen, Sutton v
The Queen, Hoch v The Queen, and Harriman v The Queen. What is
said in Pfennig v The Queen about the task of a judge deciding the
admissibility of similar fact evidence and for that purpose comparing
the probative effect of the evidence with its prejudicial effect must be
70
understood in the light of two further considerations. First, due
weight must be given to the necessity to view the similar fact
evidence in the context of the prosecution case. Second, it must be
recognised that as a test of admissibility of evidence the test is to be
applied by the judge on certain assumptions. Thus it must be
assumed that the similar fact evidence would be accepted as true and
that the prosecution case (as revealed in evidence already given at
trial or in the depositions of witnesses later to be called) may be
accepted by the jury. Pfennig v The Queen does not require the judge
to conclude that the similar fact evidence, standing alone, would
demonstrate the guilt of the accused of the offence or offences with
which he is charged. But it does require the judge to exclude the
evidence if, viewed in the context and way just described, there is a
reasonable view of the similar fact evidence which is consistent with
innocence.”
[174]
There is difficulty with the use of the words “must” and “may”. The proposition
that the trial judge must assume that the other evidence may be accepted by the jury,
in my respectful view, is meaningless. The proposition that a jury may accept the
other evidence is self evident. A trial judge would hardly assume anything else. I
believe the Court intended trial judges to assume the jury would accept the other
evidence as well. Such a reasoning process is entirely appropriate when the
prosecution case in respect of the material fact in issue is wholly circumstantial e.g.
Pfennig, Martin v Osborne¸ Plomp v The Queen, Sutton v the Queen. In my
respectful view, the approach is entirely inappropriate in cases like Hoch, and
Harriman where there is direct evidence of the material fact in issue.
[175]
In my respectful view the High Court did not appreciate the reasoning process
involved when the central question is the improbability of similar lies (Hoch). The
judgment has sought to mandate that the propensity evidence must be assumed to be
true. In Hoch’s case (as in Phillips) the evidence of each of the three boys was
direct evidence of the commission of the offence alleged against him and propensity
evidence in relation to the offences alleged to have been committed against the other
two. In other words all of the evidence was both propensity evidence and direct
evidence. If one assumes the truth of the evidence of all of the boys, one assumes
that the offences have been committed. There could have been no reasonable
inference consistent with innocence. Nowhere in the judgments in Pfennig, Hoch,
Boardman, Kilbourne, Sims, or Moorov is it suggested that the Court must assume
the truth of the propensity evidence.
[176]
In Harriman there was direct evidence from an accomplice Martin that he and
Harriman travelled to Thailand, purchased heroin and sent it to Australia. It was
direct evidence which, if believed, proved Harriman’s guilt of the offence of being
knowingly concerned in the importation of heroin. The propensity evidence was
that Martin and Harriman had been involved in a joint enterprise selling heroin in
Australia shortly before they travelled to Thailand. Harriman agreed that he had
travelled to Thailand and met up with Martin but denied any involvement in the
purchase and sending of the heroin to Australia. If it was assumed that the
propensity evidence was accepted and assumed that the other evidence was accepted
(that is Martin’s evidence) then it was assumed that Harriman was guilty. There
could have been no reasonable inference consistent with innocence.
71
[177]
[178]
In my respectful view, the High Court failed to appreciate that the reasoning process
involved in the application of the Pfennig test in cases where there is direct evidence
of the material fact in issue, is different to that involved when the prosecution case
in respect of the material fact in issue is wholly circumstantial. As Brennan J
pointed out in his judgment in Sutton it is not logical to assume the truth of the
material fact in issue. Although the passage in Phillips above is expressed in
mandatory terms in my view it is a matter of logic rather than a matter of law as
Brennan J pointed out. In my respectful view even the High Court of Australia
cannot mandate an illogical reasoning process.
The High Court remarked that “neither the courts below nor counsel for the
respondent cited any case in which similar fact evidence of complainants who said
that they did not consent was led to show that another complainant had not
consented.” The High Court judgment itself cited a case in which the material fact
in issue was the absence of consent. That case was R v Handy [2002] 2 SCR 908.
In that case the accused was charged with offences of vaginal and anal rape alleged
to have occurred during what was essentially a one-night stand. The woman said
that she had met Handy and they had gone to premises where she was willing to
engage in consensual sexual activity. However, she said that even though she was
consenting initially Handy became violent and this hurt and frightened her. Over
her protests he proceeded to have vaginal and anal intercourse with her. Handy’s
account admitted the vaginal and anal intercourse. His account was that the
complainant was a consenting and enthusiastic participant. Therefore the material
fact in issue was that of the absence of consent. The propensity evidence came from
Handy’s former wife. She gave evidence that over a number of years during their
marriage he behaved in the same sort of way. He would treat her roughly and have
intercourse with her without her consent and ignoring her objections. The Supreme
Court of Canada ultimately ruled that the evidence of the wife should not have been
admitted. However this was not on the basis that evidence could not be admitted in
relation to the absence of consent in a case of rape. It was because the evidence did
not have the high probative force required to make it admissible so as to overcome
the potential prejudice of receiving it. The Supreme Court of Canada applied a test
similar to that applied in the English cases. Most importantly it had regard to the
risk of collusion and in that case there was evidence of a risk of collusion. There
was nothing in Canadian law comparable to s 132A of the Evidence Act. However,
there can be no doubt that the Supreme Court accepted that with sufficient probative
value evidence would be admissible on the issue of consent. At [117] the following
appears:“If the jury could legitimately infer sexual intransigence in closely
comparable circumstances from the respondent’s past behaviour and
refusal to take his wife’s no for an answer, the present complainant’s
testimony that intercourse occurred despite her lack of consent gains
in credibility. The issue broadly framed is credibility, but more
accurately and precisely framed, the “issue in question in this case
was the consent component of the actus reus and in relation to that
issue the respondent’s propensity to refuse to take no for an answer.”
Further, in the English case of R v Wilmot [1989] 89 Cr.App.R. 341 the Court of
Appeal ruled in favour of the admissibility of propensity evidence in relation to the
issue of consent.
72
[179]
To borrow an expression used by Thomas JA in R v O’Keefe (2000) 1 QdR 564, I
regret to say that this judgment of the High Court is an unintended boon to serial
rapists. (See R v Marshall (2006) QCA 220 discussed at Appendix F).
Relationship evidence
[180]
It is probably trite to say that not all relationship evidence is propensity evidence
and not all propensity evidence is relationship evidence. However, in my view, it is
clear that the majority in Pfennig intended the rule for the admissibility of
propensity evidence to apply to relationship evidence which discloses the
commission of offences other than those with which the accused is charged. At p
464 the judgment of the majority opened with the following:“This appeal raises questions as to the admissibility of what has been
described as propensity or similar fact evidence and the use to which
it can be put. There is no one term which satisfactorily describes
evidence which is received notwithstanding that it discloses the
commission of offences other than those with which the accused is
charged. It is always propensity evidence but it may be propensity
evidence which falls within the category of similar fact evidence,
relationship evidence or identity evidence.”
[181]
Such a view was confirmed by the Queensland Court of Appeal in R v Wackerow
[1998] 1 QdR 197. At p 200 Macrossan CJ said as follows:“In the present case in deciding on the probative force of the
additional episodes alleged apart from those charged on the
indictment, the trial judge, and after admission of the further
evidence, the jury were not called upon to concentrate upon any
search for striking similarity, underlying unity or signature shared by
the two bodies of evidence. It would have been appreciated that
proof of the Crown case charged, although assisted by some
supplementary pieces of evidence, depended fundamentally upon
acceptance of the complainant’s word against the denials of the
accused. In considering that issue the judge and the jury not only
had her description (and his denials) of two episodes, but also her
allegations of additional occasions of sexual interference. The
common experience of the courts (cf McHugh J in Pfennig at 523525) has been that evidence of that kind is admitted in these
circumstances. It is justified by a description of the class of evidence
as going to show “guilty passion” or constituting “background”
clarifying the relevant relationship between the two protagonists.
Cases in this category should now, following Pfennig, be seen, not as
ones where the additional evidence will routinely be admitted, but as
ones where the legal admissibility will need to be determined by
resort to the single test stated in that case and referred to above. It
can be expected that the form in which the test is stated in the joint
judgment will enjoy particular authority.”
Pincus JA said at p 203:“The test for admission of such evidence at trial appears to have been
altered, if statements in the principal judgment in Pfennig [1995] 182
CLR 461 are to be treated as authoritative as to circumstances of the
present sort.”
73
And at p 204:“The distinction between the relevance of the Pfennig evidence and
that which is issue here is that Pfennig’s later criminal acts showed a
propensity to commit certain types of attacks on boys; here the
propensity relied on does not relate to girls generally but to a
particular girl and of course the acts which the propensity is alleged
to lead to are of a rather different character from those relied on in
Pfennig. Nevertheless, it is, as it seems to me, improbable that the
principle stated in the main judgment in Pfennig was not intended to
cover propensity cases of the present kind; I find it difficult to
discern a convincing means of distinguishing the rule laid down in
Pfennig so as to make it inapplicable to this appeal.”
[182]
In Wackerow’s case the appellant was charged with two offences of indecent
dealing with the same girl. The first offence was alleged to have occurred in late
1989 when the girl was aged 11. It was alleged that one night when they were
sleeping in a double bed together he parted her legs and licked her vagina. The
second count alleged that on a night in April 1992 when the girl was aged 13 the
appellant entered her bedroom and put his penis into her mouth. She told her father
about this incident the next day.
[183]
The complainant gave evidence of other incidents which were not the subject of
charges. Her parents separated in January 1990. She remained living with her
father. Her mother began living with the appellant. She would visit them and stay
overnight. For a time she would sleep between her mother and the appellant in the
double bed. He regularly attempted to put his finger into vagina. Eventually she
started to sleep in a single bed in an adjacent room. The charged incident involved
him putting his penis into her mouth and was said to have occurred in April 1992.
After that she stopped staying over with her mother and the appellant for a
considerable time but resumed doing so. She described waking up one night to see
the appellant looking at her and playing with his penis. As may be observed the
uncharged conduct of the appellant attempting to put his finger into her vagina and
looking at the complainant and playing with his penis were different to the charged
conduct of licking her vagina and putting his penis into her mouth. Even the
charged acts were different as between themselves.
[184]
The probative value of relationship evidence cannot be rationally explained by
reference to a modus operandi because identity is not an issue. It cannot be
rationally explained by reasoning towards the improbability of similar lies. That
reasoning process depends upon the improbability of different witnesses hitting
upon similar allegations independently of each other. Pincus JA at p 204 explained
the reasoning process as follows:“Applying then the principle that the evidence here in question was
inadmissible unless there was no reasonable view of it “other than as
supporting an inference that the accused is guilty” (Pfennig at 481)
and keeping in mind that this support must be strong or cogent, I
have come to the conclusion that the evidence was properly
admitted. If the jury believed the evidence about the uncharged
occasions it must have come to the conclusion that the appellant had
a marked sexual interest in the complainant child and an inclination
to manifest that interest physically; that conclusion if accepted must
74
have made a guilty verdict on the offences charged which a rational
jury would much more readily reach.”
At p 209 Byrne J said:“On the other hand her testimony about the other incidents had
probative worth beyond its tendency to prove a relevant propensity.
It may have helped to persuade the jury of the accuracy of her
account of the two charged offences for a reason other than that it
portrayed the appellant as someone disposed to deal indecently with
her. The other sexual activity indicated an ongoing sexual attraction.
It could have resolved any doubts concerning the reliability of her
account of the two incidents charged that might otherwise have
arisen from restricting the evidence to telling of isolated acts
occurring some time apart. In that interval there were opportunities
for the appellant to have indulged his inclinations were he attracted
to the girl. She revealed to the jury that he had exploited these
moments as might have been expected if her story about the charged
incidents were true. Her evidence about the uncharged incidents was
distinctly capable of bolstering the credibility of her account in
relation to the offences. The judge was right to admit it.”
[185]
Most of the cases dealing with the issue of relationship evidence concern evidence
of uncharged conduct of a sexual nature. However, relationship evidence is not
confined to this class of case. For instance, uncharged acts of violence by a man
towards his wife may be admissible to prove a particular offence of violence against
the wife with which the man is charged because it shows an animosity towards the
wife and a willingness on the part of the husband to express that animosity with
actual violence. If accepted, it may mean that the only reasonable inference to draw
is that the complainant wife is probably telling the truth about the charged occasion.
[186]
For completeness, I should add that in my respectful view the Supreme and District
Court Bench Book Direction on uncharged sexual (or violent) acts contains an error
of law. Relevantly, it directs the jury as follows:“Those incidents are not the subject of any charges before you, and
you can use the evidence of them for one purpose only: if you accept
the evidence it shows, so the prosecution says, the true nature of the
relationship between the defendant and the complainant, thus placing
the alleged events the subject of the charges in their proper context.”
In my view, such a direction is too favourable to the prosecution. If the relationship
evidence is admitted it can only be admitted on the basis that there is no reasonable
view of it, if believed, other than that the complainant is probably telling the truth
about the charged conduct. In my view a jury must be told that is the way they may
use it and the jury must be told that it is the only way in which they may use it.
Conclusion
[187]
The majority judgment in Pfennig is authority for one proposition and one
proposition only –
The trial judge must apply the same test as a jury must apply to
circumstantial evidence and only admit the propensity evidence if he
75
or she is satisfied that there is no reasonable inference consistent
with innocence.
[188]
The reasoning process involved in applying the test is not a principle of law; it is a
process of drawing inferences from facts. That reasoning process will vary from
case to case depending on the material fact in issue to which the propensity
evidence relates, whether the prosecution case in respect of that material fact in
issue is circumstantial or if there is direct evidence of the material fact in issue, and
most of all the actual evidence in the particular case under consideration.
[189]
The reasoning process is not about similarities or dissimilarities. It is not about
striking similarity, pattern, system or underlying unity although such features may
be relevant in a particular case. But they are not an end in itself.
[190]
In some cases the judge should assume the truth of the propensity evidence. In
other cases to do so would be illogical. In some cases the number of propensity
incidents will be relevant, in other cases not. In many instances guidance as to the
reasoning process applicable may be obtained from judgments of appellate courts in
cases involving similar circumstances and issues. Ordinarily considerable weight
would be given to the judgments of appellate courts. But the reasoning process is
not a statement or determination of legal principle; it is an exercise of drawing
inferences from facts. It may well be persuasive but it is not binding.
[191]
The Pfennig test is all about objective improbability, that is, improbability
according to logic, reason, common sense and experience. If the trial judge
determines that innocence is so objectively improbable, that there is no reasonable
inference consistent with innocence, then the evidence is admissible.