The Queen v Carne[1997] QCA 176

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A.  No. 553 of 1996

Brisbane

[R. v. Carne]

THE  QUEEN

v.

DAVID NICHOLAS CARNE

Appellant

Fitzgerald P

de Jersey J

Dowsett J

Judgment delivered 24 June 1997

Separate reasons for judgment of each member of the Court, Fitzgerald P dissenting.

APPEAL ALLOWED. CONVICTION QUASHED. RETRIAL ORDERED.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 24 June 1997

The circumstances giving rise to this appeal are set out in the reasons for judgment of de Jersey J.

At its broadest, the appellant's submission was that evidence of the earlier killing of Jacobson and the New South Wales convictions of the appellant and Harris in respect of that killing was inadmissible at his trial for murder for the second killing of Mrs Heather Edgerton in Queensland;  it is his conviction of the murder of Mrs Edgerton which is the subject of the present appeal.  Alternatively, the appellant submitted that evidence of his connection with the killing of Jacobson was limited to his involvement as an accessory after the fact to a murder by Harris in accordance with his New South Wales conviction in respect of that killing.  It is convenient to put the appellant’s second submission, and all questions related to the New South Wales proceeding concerning the killing of Jacobson including the convictions of the appellant and Harris in that proceeding, to one side initially, and to consider first whether, but for that proceeding, evidence of the killing of Jacobson would have been admissible against the appellant on the charge of murdering Mrs Edgerton.

The prosecution case was that the appellant was present when Mrs. Edgerton was shot, and that he is guilty of murder pursuant to a combination of s. 7 or s. 8 and sub-s. 302(1)(a) or sub-s. 302(1)(b) of the Criminal Code.  The bases upon which the appellant might be guilty of Mrs. Edgerton's murder were raised by the trial Judge for the jury's consideration as follows:

1. the appellant shot Mrs. Edgerton;

2. the appellant, knowing of Harris' intention to kill or cause grievous bodily harm to Mrs. Edgerton:

1. aided Harris to kill her by encouraging him by his presence;  or

2. counselled or procured Harris to kill her;  or

3. Harris killed Mrs. Edgerton in the prosecution of an unlawful purpose, namely, a drug transaction of which Harris gave evidence, and the appellant and Harris had a common intention to engage in that unlawful purpose and Harris' shooting of Mrs. Edgerton with intent to cause death or grievous bodily harm was committed in the prosecution of, and a probable consequence of, that unlawful purpose.

The appellant gave evidence denying his involvement in the killing of Mrs Edgerton and Harris gave evidence that he murdered Mrs. Edgerton by shooting her, that the appellant was not present, but that Harris was accompanied by an unidentified person whom he refused to name in his evidence but on an earlier occasion had said was “Tim Ferris”.  In summary, the prosecution evidence against the appellant was that, after Mrs. Edgerton was shot at close range and her body placed in the boot of her white Ford Fairlane motor vehicle and later dumped, the appellant and Harris were seen in the locality with Mrs. Edgerton's vehicle and a brown Morris 1100 motor vehicle.  After Mrs. Edgerton's vehicle was abandoned, the appellant and Harris returned to Woodenbong (in northern New South Wales) in the Morris 1100 vehicle.  Further, there was evidence of lies by the appellant to the effect that neither he nor Harris had left Woodenbong for any length of time on the day when Mrs. Edgerton was killed.

The evidence in relation to the killing of Jacobson which the trial Judge ruled was admissible against the appellant on the count charging that he had murdered Mrs. Edgerton was that, on the previous day, Saturday 27 October 1990, while in the company of the appellant and with his encouragement, Harris shot and killed Jacobson at Woodenbong.  The appellant, his de facto wife, Jenny Robinson, Harris and Jacobson had been residing on a property near Woodenbong during the previous week, in the course of which the male members of the group purchased the Morris 1100 vehicle, which was driven back to the Woodenbong property.  On Friday night, 26 October 1990, the three men went shooting on the property.  Harris and Jacobson went shooting again on the afternoon of Saturday 27 October.  The appellant followed in the Morris 1100 vehicle and, after he had caught up with Harris and Jacobson and given them a lift, all three men alighted from the vehicle.  It was then that Harris shot Jacobson with the appellant's encouragement.  The appellant and Harris then returned to the house, told Ms. Robinson of the killing, went with her to the pictures, and then drove to where Jacobson's body lay.  The body was loaded into the boot of the Morris 1100 vehicle and taken and dumped in a State Forest.  After cleaning the boot of the Morris 1100 on the morning of Sunday 28 October, the appellant and Harris drove that vehicle to Queensland, where Harris shot Mrs. Edgerton, a stranger.

The jury was instructed that the evidence of the appellant's involvement in the killing of Jacobson was relevant to the nature and extent of his relationship with Harris, including whether he was present when Harris killed Mrs. Edgerton, and that the relationship between the appellant and Harris was material to the possible bases of the appellant's guilt of Mrs. Edgerton's murder which the jury had to consider.  For example, his Honour said:

“... You may think that [the appellant’s] involvement, depending on what you determine it to be, in Jacobson’s death tells you a great deal about the relationship between he and Harris which is useful to you if you are satisfied that they were together when Mrs Edgerton died.

If they were together when Mrs Edgerton died, then the relationship between them is of significance in a number of respects, and I will mention some of them later if they are not obvious to you, but it may well be significant, for example, to determine whether they were acting together, whether they were acting in concert at the time that Mrs Edgerton was killed, to know what [the appellant’s] role was vis-a-vis Harris’ role in the murder of Jacobson.  So that if he was there then you are perfectly entitled to reach your conclusion as to his role in the murder of Jacobson and ask yourself, ‘What does that tell us about his role, his relationship the way in which the murder of Edgerton was carried out?’

The other consideration which arises is that if you are satisfied that the similarities between the two events are so strong that you can infer that whoever did one did the other, and if [the appellant] did one, then because of those striking similarities you might infer that he did the other.  Of course, whether or not you do that and how far you take it and the significance of it to your overall deliberations will depend very much on the view that you take as to the role that [the appellant] played in the Jacobson murder.  The point is, as I say, it has those aspects of it.  If the striking similarities are such that you can be quite satisfied that if he did one he was implicated in the other, or if the role that he played in one assists you in determining the relationship between the two men which you can then apply to the murder of Edgerton.”

The directions to the jury concluded:

"... you will bear in mind the way in which you can use whatever you conclude to be his involvement in the murder of Jacobson for the purpose of establishing whether there was a joint enterprise or in deciding whether the two persons acted in concert in the murder of Heather Edgerton."^[1]

The importance of the evidence of the appellant’s involvement in the killing of Jacobson to the prosecution case against him on the charge of murdering Mrs Edgerton is obvious, as is the difficulty faced by a trial judge in ruling upon the admissibility of such evidence at a time when it is unknown whether an accused person will testify or whether, if he or she fails to do so, a direction may be given that that is a circumstance which the jury may take into account in evaluating the evidence.^[2]  In the present case, in which both Harris and the appellant gave evidence seeking to exonerate the appellant, the obvious prejudice to the appellant from the evidence of his involvement in the killing of Jacobson included not only the fact that he had been involved in another killing on the previous day but that he had told lies concerning that killing and the near certainty that the appellant and Harris would be disbelieved in their denials that the appellant was not a party to Mrs Edgerton’s murder.  Hence, as is established by Pfennig v. R.,^[3] evidence of the appellant’s involvement in the killing of Jacobson was inadmissible unless it was capable of acceptance by the jury and, if accepted, of persuading the jury to the requisite standard that the appellant had been involved in the manner referred to in the evidence in the killing of Jacobson; further, if accepted as persuasive to the requisite standard by the jury, the evidence of the appellant’s involvement in the killing of Jacobson must leave open no rational inference in the context of the prosecution case except that the appellant was guilty of Mrs Edgerton’s murder.  The rationale for the admission of the evidence of the killing of Jacobson in those circumstances is that, because the specified requirements were satisfied, its probative value of the appellant’s involvement in the killing of Jacobson sufficiently outweighed its prejudicial effect.

It is sufficient for immediate purposes to cite two extracts from the majority judgment^[4] in Pfennig.  At pp. 482-483, their Honours said:

“... 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 C.L.R., at p. 296 (where Mason C.J., Wilson and Gaudron JJ. expressed agreement with the remarks of Dawson J. in Sutton (1984), 152 C.L.R., at p. 564).  See also Harriman (1989), 167 C.L.R., at p. 602].  Here ‘rational’ must be taken to mean ‘reasonable’ [See Peacock v. The King (1911), 13 C.L.R. 619, at p. 634; Plomp v. The Queen (1963), 110 C.L.R. 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. ...”

At p. 485, they continued:

“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] 1 S.C.R. 717; (1990) 55 C.C.C.(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 C.L.R., at p. 564; Hoch (1988), 165 C.L.R., at p. 296; Harriman (1989), 167 C.L.R., at p. 602]”.

Those passages appear in a section of the judgment in Pfennig which is concerned with the admissibility of evidence of uncharged criminal conduct which is disputed.^[5]  The judgment proceeded on the basis that there would be direct evidence of uncharged criminal acts by different witnesses, and it was said that “[t]he probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred”.  That statement involved an implicit assumption that evidence of the uncharged criminal conduct would be capable of acceptance by the jury.  It is inherent in the test of admissibility which applies that, in determining whether evidence of uncharged criminal conduct is capable of proving the accused’s guilt of the offence charged beyond reasonable doubt in the context of a prosecution case, a trial judge must assess the credibility and reliability of the evidence of the uncharged criminal conduct.  In Pfennig and the earlier High Court cases which it endorses, reference is made to “probative value” and “cogency”, which involve both the materiality of the subject matter of evidence and its quality.  Whatever the standard of proof required in respect of uncharged criminal acts, if evidence of their commission by an accused is to be admitted on the basis that it meets the test in Pfennig, the trial judge must be satisfied that the evidence is capable of (i) acceptance by the jury and (ii) persuasion of the jury to the requisite standard that the accused committed those acts.

Evidence of uncharged criminal activity to prove a different offence which is charged is “circumstantial evidence”, i.e., evidence of circumstances other than the constituent elements of the offence as the basis for an inference that the accused is guilty of the offence charged.  Unless a matter to be proved is indispensable to a conclusion of guilt, in which case it must be proved beyond reasonable doubt, circumstances relied on for an inference of guilt need ordinarily only be proved on a balance of probabilities, provided that in combination such matters make the accused’s guilt the only rational inference.^[6]  However, evidence of uncharged criminal activity  is circumstantial evidence of a special kind because of the potential for its prejudicial effect to exceed its probative value.  The question arises whether, in consequence, evidence of uncharged criminal conduct which is capable of proving that that conduct probably occurred but leaves open the possibility that it did not is admissible, or whether evidence of uncharged criminal conduct must be capable of proof of that conduct beyond reasonable doubt.

The passage quoted from p. 485 of Pfennig states that, in deciding whether evidence of uncharged criminal conduct is admissible, a trial judge must not (i) use such evidence to draw an inference adverse to the accused “unless it is the only reasonable inference in the circumstances” or (ii) admit the evidence “if ..., viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence”.  The language of the passage, especially the words “More than that”, suggest that the two requirements are intended to be cumulative, with the consequence that, while “innocence” in (ii) refers to innocence of the offence charged, the inference adverse to the accused which is referred to in (i) is an inference that he committed the uncharged criminal acts.  If that is so, one condition of admissibility of evidence that the accused engaged in uncharged criminal conduct is that the only reasonable inference from such evidence, if accepted, is that the accused did commit the uncharged criminal acts.  Another requirement, to which reference has earlier been made, is that the evidence of the uncharged criminal conduct, if accepted, leaves open no rational inference in the context of the prosecution case except that the accused committed the offence charged.  Because of my view concerning the cogency and probative value of the evidence of the appellant’s complicity in Jacobson’s murder, referred to below, I need not pursue these matters further on this occasion.

When considering the admissibility of evidence of uncharged criminal conduct, it will usually be appropriate for a court to compare and contrast that conduct with the conduct involved in the offence with which an accused person is charged.  When joint offenders are allegedly involved in both the offence charged and the uncharged criminal conduct of which the prosecution seeks to lead evidence, it might be necessary in undertaking such a comparison to focus on the conduct alleged against a particular accused or it might be permissible to consider the combined conduct of one or more of those allegedly involved.  It is unnecessary to pursue that here.  In my opinion, the admissibility of the appellant’s involvement in the killing of Jacobson did not depend solely on a comparison of the conduct involved in the respective killings, but on the probative value of the evidence implicating the appellant in the killing of Jacobson in proof of his guilt of the murder of Mrs Edgerton.  If the evidence of the appellant’s involvement in the killing of Jacobson was capable of acceptance and, if accepted, proved beyond reasonable doubt that he was guilty of Jacobson’s murder and, when taken with the other prosecution evidence, that he was guilty of Mrs Edgerton’s murder, it was admissible.

In my opinion, the tests to which I have referred were satisfied, and the appellant’s first submission should be rejected.

The appellant’s second submission was founded on the New South Wales proceeding in which he was convicted and sentenced to a term of imprisonment for an offence of being an accessory after the fact to Harris’ murder of Jacobson by receiving, harbouring, maintaining and assisting Harris after Jacobson had been murdered.  Unfortunately, the details of the New South Wales proceeding are far from clear.  It seems from statements in the transcript that the appellant was first charged with the offence of which he was convicted, i.e., of being an accessory after the fact to the murder of Jacobson,^[7] and that a count of murder of Jacobson was later added.^[8]  If both charges remained in the indictment at the commencement of the New South Wales trial, it does not appear whether a nolle prosequi^[9] was entered in respect of the charge against the appellant of murdering Jacobson, or whether some other procedure was followed in the New South Wales proceeding to dispose of that charge.  Whatever the means adopted, the appellant’s plea of guilty to the offence of accessory after the fact to the murder of Jacobson was accepted in discharge of the indictment, notwithstanding that the New South Wales prosecutor had evidence implicating the appellant in Jacobson’s murder; namely, statements by Harris to police and statements by the appellant to a man named Walker, whom he knew, at the Woodenbong Police Station after the appellant had been arrested; the appellant told Walker that he was present when Harris murdered Jacobson and that the appellant had bet Harris $1,000.00 that he would not shoot Jacobson. 

At the trial at which the appellant was convicted of the murder of Mrs Edgerton which has given rise to the present appeal, the prosecutor adduced not only the evidence implicating the appellant in the murder of Jacobson which had been available to the New South Wales prosecutor but also additional evidence which had only become available later; the appellant’s estranged wife, Louise Carne, said that, after he had been sentenced to imprisonment in New South Wales for his offence of being an accessory after the fact to Jacobson’s murder and been released from prison, the appellant told her that he “nudged [Harris] on ... like to do it, edged him on to do it”, i.e., kill Jacobson, and “got done with accessory after the fact when it should have been accessory before the fact”.  It was not disputed that Mrs Carne’s testimony was “fresh evidence”.^[10]

Both parties accepted that, for the purpose of deciding whether the evidence of the appellant’s complicity in the murder of Jacobson was admissible at his trial for the murder of Mrs Edgerton, the legal position was not materially affected by the circumstance that Jacobson’s murder, and the convictions of Harris and the appellant in connection with that murder, occurred in New South Wales, not Queensland.  I propose to act on that mutual concession, without tracing the steps necessary to reach such a conclusion.^[11]  Nonetheless, the uncertainty concerning what occurred in the New South Wales proceeding is unsatisfactory.

The appellant did not submit that the reception of the evidence of his complicity in the murder of Jacobson was an abuse of process because it was unfair to the accused^[12] on the footing that his plea of guilty to an offence of being an accessory after the fact was, or might have been, influenced by the prosecution not proceeding with the count charging him with Jacobson’s murder.^[13]   However, it was submitted for the appellant that it was an abuse of process for the prosecution to use the evidence of complicity in Jacobson’s murder by reason of its inconsistency with the appellant’s New South Wales conviction.  Particular reliance was placed on Rogers v. R.^[14]  The prosecution response was that an exception was recognised in Rogers when there was fresh evidence.^[15]

However, there is a wider question to be considered by reference to the appellant’s submission, in the context of abuse of process, that the prosecution evidence that he was a participant in Jacobson’s murder involved the relitigation of a matter already disposed of by the New South Wales proceeding.  While such a consideration is material to whether there has been an abuse of process,^[16]  it is unnecessary to consider abuse of process if there is a more absolute objection^[17] to the reception of evidence of the appellant’s complicity in the murder of Jacobson.

Although the entry of a nolle prosequi does not establish innocence,^[18] a conviction for a lesser offence than that contained in an indictment pursuant to a statutory power^[19] permitting that course “necessarily involves an acquittal on the offence charged in that indictment”.^[20]  In practice, a jury verdict of acquittal on the offence charged would ordinarily precede the verdict of guilty on the lesser charge.  While this is not such a case,^[21] nor is it similar to Rogers, in which the material decision at the earlier criminal proceeding (at which Rogers was acquitted on some charges and convicted on others) was a ruling that admissions in a number of records of interview were involuntary, and therefore inadmissible.  That issue was not permitted to be relitigated at a later proceeding involving different charges

Mraz v. R. [No. 2]^[22] is more directly relevant to the present case.  Despite the dissenting view of Brennan J. in Rogers^[23] that Mraz involved issue estoppel, not res judicata, the majority in Rogers rejected the application of a doctrine of issue estoppel to criminal proceedings.  It is consonant with that view, and with the language of the judgment of the Court in Mraz [No. 2], to regard it as an instance of the application of res judicata in criminal proceedings.

Mraz was acquitted of felony-murder but convicted of manslaughter.  The felony alleged was rape; it was alleged that Mraz killed his victim during or immediately after raping her.  Later, he was tried and convicted of the rape.  The High Court, which unanimously held that the conviction for rape could not stand, said:^[24]

“On a subsequent indictment the Crown would be precluded upon any issue which could not be found consistently with the negative of the proposition.  For the Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings.”

Immediately following that passage, the Court in Mraz referred to R. v. Wilkes^[25] and Sambasivam v. Public Prosecutor of Malaya,^[26] although the latter^[27] is more clearly based on res judicata than the former.^[28]  While the correctness of Mraz [No. 2] was doubted by some members of the High Court in R. v. Storey,^[29] other members of the Court in Storey did not question Mraz [No. 2], although differing explanations were given for its conclusion.  In Storey, Mason J., who was one of the majority in Rogers, regarded Mraz [No. 2] as a decision based on res judicata, and expressed the opinion^[30] that that doctrine requires that a verdict of acquittal of an offence “precludes the Crown from raising the guilt of the accused for [that offence] in proceedings for another offence” because “the binding consequence of the verdict requires that it be accorded a full and unqualified recognition for all purposes in the criminal law”.  Similarly, in Sambasivam, Lord MacDermott, speaking for the Privy Council, said:^[31]

“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.  To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.  The maxim ‘Res judicata pro veritate accipitur’ is no less applicable to criminal than to civil proceedings.”

Although the position is clearer where there is a formal acquittal, logically any judgment in a criminal proceeding in favour or against an accused person which is inconsistent with the accused’s guilt of another offence must have the same consequence, which obviously extends to precluding evidence of an offence which is inconsistent with the judgment.^[32]  However, it is plain from the quoted statements from Sambasivam,^[33] Mraz [No. 2]^[34] and the judgment of Mason J. in Storey,^[35] that res judicata in the criminal context is not a rule of evidence but a substantive principle of the criminal (common) law.

I did not understand the argument for the prosecution on this appeal to submit that the appellant could now be tried and convicted in New South Wales for Jacobson’s murder, even if defences of autrefois acquit^[36] or autrefois convict^[37] could not be raised and there would be no double jeopardy^[38] or, if he was convicted of Jacobson’s murder, punished twice for the same offence.  Other considerations aside, such a prosecution would not be open because it would be inconsistent with the appellant’s conviction of being an accessory after the fact to Jacobson’s murder,^[39] and the doctrine of res judicata would prevent the appellant’s conviction.

Whether that doctrine also operated to require the exclusion of evidence that the appellant was a party to Jacobson’s killing at his trial for Mrs Edgerton’s murder for the same reason, namely, inconsistency with his conviction of an offence of being an accessory after the fact to Jacobson’s murder, depends on the operation of the Criminal Code.

The material provisions of the Code are ss. 16,^[40] 17, 598(2)(c), (d) and (e), and 602, which respectively provide:

“[s 16]Person not to be twice punished for same offence

16A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission.

“[s 17]Former conviction or acquittal

17It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.

598(1)...

(2)If the accused person pleads, the person may plead either -

...

3. that the person has already been convicted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been convicted of an offence of which the person might be convicted upon the indictment;

4. that the person has already been acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment of an offence of which the person might be convicted upon the indictment;

5. that the person has already been tried and convicted or acquitted of an offence committed or alleged to be committed under such circumstances that the person cannot under the provisions of this Code be tried for the offence charged in the indictment;

...

“[s 602]Plea of autrefois convict or autrefois acquit

602In a plea that the accused person has already been convicted or acquitted, it is sufficient to state that the accused person has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment, or of the other offence of which the person alleges that the person has been convicted or acquitted, and, in the latter case, to describe the offence by any term by which it is commonly known.”

The language of those provisions did not require that evidence of the appellant’s complicity in the murder of Jacobson be excluded from his trial for the murder of Mrs Edgerton.  It remains to be considered whether the Code provisions should nonetheless be construed so as to accord them a broader operation which would have that effect or, if not, whether the common law doctrine of res judicata in criminal proceedings supplements the provisions of the Code.

Although it referred to both Wilkes and Mraz [No. 2] as decisions based on issue estoppel, the Full Court in O'Mara v. Litfin, ex parte O'Mara^[41] held that what is, in my opinion, correctly described as res judicata applies to summary prosecutions in the Magistrates Court.  No reference was made to the Code or to the Justices Act 1886, notwithstanding that both the driving offence of which the respondent had been acquitted and the further driving offence with which he had been charged^[42] were offences for the purposes of the Code,^[43] and s. 17 is not exclusively concerned with prosecutions on indictment, although it only provides a basis for a plea of autrefois acquit if the acquittal was on indictment.^[44]

Speaking of the identical provision in the Western Australian Criminal Code^[45] in O'Halloran v. O'Byrne, Wickham J. said:^[46]

“The precise application of this [s. 17] to simple offences remains to be worked out, but s. 16 and s. 734 of the Code and s. 142 of the Justices Act afford relief in principle.”

Section 16 of the Western Australian Criminal Code is identical to s. 16 of the Code in this State and s. 734 of the Western Australian Code, which has since been repealed, was identical with s. 700 of the Queensland Code, which provides:

“[s 700]Certificate of dismissal by justices

700(1)When justices dismiss a complaint of an offence punishable on summary conviction, whether an indictable offence or not, they may, if required, and if they think fit, give the accused person a certificate of dismissal.

(2)Such a certificate is a bar to any further prosecution of the accused person for the same cause.”

Section 142 of the Western Australian Justices Act is identical with s. 149 of the Justices Act, which provides:

"149.If the justices dismiss a complaint, they may, if required so to do, and if they think fit, make an order of dismissal, and give the defendant a certificate thereof, which certificate shall upon production and without further proof be a bar to any subsequent complaint for the same matter against the same person.”

It has subsequently been held that a “dismissal” for the purposes of s. 700 of the Code or s. 149 of the Justices Act is a dismissal after a hearing on the merits.^[47] 

However, even if that is correct, and, if contrary to my tentative view, the initial acquittal in O'Mara v. Litfin, which followed a successful submission at the close of the prosecution evidence that the accused had no case to answer, was not a dismissal after a hearing on the merits,^[48] it is difficult to comprehend why neither the Code nor the Justices Act was even referred to in that decision.  In my opinion, consideration of the material Code and Justices Act provisions, and the possibility that they were intended to be exhaustive, was unavoidable before it could be concluded that there was an issue estoppel, or, as I would prefer, that the second charge was res judicata.

R. v. Gordon, ex parte Attorney-General^[49] involved s. 16 of the Criminal Code, which the Court of Criminal Appeal held had no application to the respondent, who had been convicted of one offence in the Magistrates Court and another in the District Court arising out of the same motor accident.  Hanger C.J. said^[50] that ss. 16 and 17 do not deal with the same subject matter, and that s. 16 differs from the relevant common law.  The other member of the Court,^[51] Williams J., said^[52] that it was necessary to consider s. 16 in conjunction with s. 17, and that the English cases “exemplify the difficulty of keeping pleas based on these two maxims [underlying ss. 16 and 17] in separate compartments”.^[53]

After stating that such compartmentalisation was “probably never ... intended and seldom attempted”, his Honour continued:^[54]

“The pleas of autrefois convict and autrefois acquit as known to the English common law dealt with situations where the offences concerned were the same or substantially the same.  See R. v. Barron [1914] 2 K.B. 570; 78 J.P. 311, a much cited decision.

It can be seen that there is a distinction between such decisions and those decided under s. 17.  That section applies, not necessarily to cases where the offences are the same or substantially the same, but rather where, because of the particular provisions of our Criminal Code on certain charges, convictions for specific offences are also open and consequently a person in standing his trial is in jeopardy or at risk of being convicted of one or other of the various offences not specifically named in the charge.

Cases like Wemyss v. Hopkins (1875) 10 Q.B. 378; 39 J.P. 549 and The Queen v. Miles (1890) 24 Q.B.D. 423; 54 J.P. 549 indicate clearly that at common law there was another rule of law applied where there had been a previous conviction as distinct from a previous acquittal.  In the first mentioned of those cases Blackburn J. said at p. 381:

‘The defence does not arise on a plea of autrefois convict, but on the well established rule at common law, that where a person has been convicted and punished for an offence by a Court of competent jurisdiction, “transit in rem judicatem”, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished twice for the same matter; otherwise there might be two different punishments for the same offence.’

In Miles, Hawkins J.  said at p. 430:

‘With regard to the common law defence relied on as an answer to this indictment, it is not strictly a plea of autrefois convict ... because the defendant has never previously been actually convicted of either of the offences in the form in which they are charged ...’

He went on then to quote the above passage from Wemyss v. Hopkins (supra).

...

With great respect to the many learned judges who have written upon this subject it is from The Queen v. Miles (1890) 24 Q.B.D. 423, and particularly the judgment of Hawkins J., that I have received most assistance.  At pp. 430-435 he deals with this particular defence and gives a guide, in my view, to the true meaning to be given to s. 16.  I make no apology for setting it out at length since this particular passage deals with many of the principles relied on and the arguments raised before us and answers them in words more appropriate than I could command:

‘With regard to the common law defence relied on as an answer to this indictment, it is not strictly a plea of autrefois convict (except as to the fourth count, which charged a mere common assault), because the defendant had never previously been actually convicted of either of the offences in the form in which they are charged in the first three counts; but it was a defence grounded, as Blackburn J. said in Wemyss v. Hopkins (Law Rep. 10 Q.B. 378) “on the well-established rule at common law that whenever a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judicatem - that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence” (Law Rep. 10 Q.B. at p. 381).  This rule of law so stated has never been doubted or qualified in any one of the numerous authorities which are to be found in the books upon the subject, though it has not always been found easy to apply the rule to the facts of particular cases under discussion. ...  The difficulties which have arisen in the application of the rule have most frequently occurred in cases where a conviction or acquittal for a simple offence has been set up as a bar to a subsequent charge against the same person in a more aggravated form, and the law, as deducible from the numerous cases to be found on the subject, seems to be this - that where a criminal charge has been adjudicated upon by a Court having jurisdiction to hear and determine it, that adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence, whether with or without circumstances of aggravation, and whether such circumstances of aggravation consist of the offence having been committed with malicious or wicked intent, or by reason that the committal of the offence was followed by serious consequences.  In this respect the criminal law is in unison with that which prevails in civil proceedings.  Who ever heard of a new action prevailing  after a verdict and judgment for damages for the same cause of action, simply on the ground that the damages were insufficient, or that the conduct of the defendant was, since the verdict and judgment, discovered to be more malicious than it was deemed to be at the trial?  Judgment recovered in a former action was always a good plea in bar. ...’ ”

Later,^[55] his Honour referred to an “examination of the cases decided under ss. 16 and 17 of The Criminal Code and like sections throughout Australia and upon pleas of autrefois acquit and autrefois convict and of issue estoppel in criminal cases”, and, after reference to authority, said:^[56]

“The several decisions in our Courts since that time do nothing to narrow down or clarify the meaning of the words ‘the same act or omission’ in s. 16.  Like many of the English decisions the facts involve a consideration of issue estoppel, autrefois convict and autrefois acquit, and no one being liable to be punished twice for the same act or omission, at times all bound up in one without any clear distinction being attempted or for that matter, necessary for the decision.

...

Although as I have said, it is not strictly necessary for my decision, it does seem to me that our s. 17 which is referred to as the autrefois convict and autrefois acquit section is not identical with that plea at common law.  Section 17 is precise in its terms and leaves no scope for arguments that emanate from Li Wan Quai v. Christie (1905-1906) 3 C.L.R. 1125 and other cases, namely whether the subsequent charge ‘must be substantially the same’ or whether it must be that in the second charge the evidence necessary to support it would have been sufficient to procure a legal conviction on the first.  See the discussion on this by Philp J. in Kilcullen v. Sammut (supra).

Cases that do not fall precisely within s. 17 may yet be appropriately dealt with under s. 16 depending upon the particular facts.

It seems to follow that it was never intended that s. 16 should be interpreted as exclusively covering those matters dealt with in Miles’ case which purports to deal with situations based on the maxim nemo debet bis puniri pro uno delicto.  It does seem to me however that the reasoning in Miles’ case, when applied to what Sir Samuel said in Hull and in Connolly v. Meagher, does give a guide to what the legislature intended.”

At least part of what was said by Williams J. in Gordon was expressly endorsed in R. v. Viers^[57] by Thomas J., who said:^[58]

“I shall first consider the plea of ‘already convicted’.  In Queensland the  Code provides the system under which we operate.  Section 17 is the section which provides the substance of any defence that permits such a plea.  Section 16 deals with punishment and appears to be concerned with matters that arise after conviction.  Compare R. v. Gordon, ex parte Attorney-General [1975] Qd.R. 301.

Section 17 states as follows:

‘It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which he might have been convicted of the offence with which he is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which he might be convicted upon the indictment or complaint on which he is charged.’

I firmly agree with the statement of Williams J. in R. v. Gordon, ex parte Attorney-General (supra) that s. 17 is not identical with the common law.  At p. 322 His Honour said:

‘Section 17 is precise in its terms and leaves no scope for arguments that emanate from Li Wan Quai v. Christie (1905-1906) 3 C.L.R. 1125 and other cases, namely whether the subsequent charge “must be substantially the same” or whether it must be that in the second charge the evidence necessary to support it would have been sufficient to procure a legal conviction on the first.’

In short, s. 17 has the advantage and disadvantage of a mechanical application of the offences of which he might be convicted on the present indictment to the offence of which he has actually been convicted.

Sir Samuel Griffith thought that s. 17 somewhat extended the common law rule, but in some respects I think it narrows it.  The present case affords a good example.

The question here must simply be, ‘Has the accused already been convicted of an offence of which he might be convicted upon this indictment?’

A close perusal of the section shows that whilst most of it is limited to former convictions or acquittals upon indictment, the final alternative is not so limited.  It covers a former conviction ‘of an offence’ of which he might be convicted upon the indictment on which he is charged.  Many alternative counts or offences open on an indictment are offences capable of summary trial.  In my opinion an earlier conviction of such an offence can be raised whether it was recorded summarily or on indictment. ...”

Gordon was also considered in R. v. Tricklebank [1994] 1 Qd.R. 330.

Macrossan C.J. said:^[59]

“In some decisions the principles involved in autrefois acquit and autrefois convict (dealt with in the Code by s. 17) and against double punishment and double jeopardy are not fully differentiated.  Perhaps in other jurisdictions these principles may not in all cases have called for separate treatment but, under the Code, s. 16 separately provides a prohibition against a second punishment ‘for the same act or omission’  except in the case where death is caused by the act or omission.  Section 17 is thus seen to deal with different situations, not simply the prohibition or restriction caused by prior punishment.  Since s. 16 deals separately with this subject-matter it must be given its appropriate effect.  The principles applied in cases in jurisdictions where the Code does not have operation cannot be fully transposed to Queensland.  It is hard to find a uniform thread among those cases and, although a rule preventing subsequent conviction or punishment is recognised as being broader than the rules of autrefois acquit and autrefois convict, the cases often do not draw exact distinctions between, on the one hand, identity and substantial similarity in what is charged and, on the other, as between the offences, acts, facts and evidence which may have been the basis of previous proceedings.  Cases illustrating this variety of approach are collected in Archbold (44th ed., 1991), Vol. 1 at 475 ff.  The modern English decision of Connelly v. Director of Public Prosecutions [1964] A.C. 1254 shows that the debate about the scope of the rules relevant in this context and about their true basis still continues.”

Further, his Honour later cited R. v. Miles^[60] with approval.^[61]

McPherson J.A. also referred to Gordon, apparently with approval.^[62]

Demack J., who agreed generally with McPherson J.A., made additional observations in which he expressly accepted the approval adopted by Hanger C.J. in Gordon at 316.

In R. v. Ward,^[63] myself and Mackenzie J. held that, when an appeal was allowed on the ground that a conviction of one offence was inconsistent with an acquittal of another offence, the accused could not be tried again for the offence in respect of which the appeal had been allowed because another conviction of that offence would again be inconsistent with the accused’s acquittal of the other offence.  Pincus J.A. dissented by reference to the Court’s power to order a retrial under s. 669; however, that power was not doubted by the majority judgment which was directed to why an order for retrial should not be ordered in the circumstances.  Although Pincus J.A. made reference to a number of cases in which retrials were ordered after convictions were quashed, none of the judgments in Ward provide significant assistance with respect to the question now under consideration.  However, Pincus J.A. noted that in R. v. Callaghan^[64] an appeal from a State with a criminal code, Western Australia, the High Court implicitly assumed that, in the circumstances there material, which are significantly different from the present circumstances, s. 17 of the Code is not different from the common law.  That appears to have been the view of Jackson C.J. in O'Halloran v. O'Byrne.^[65]  However neither Callaghan nor O'Halloran v. O'Byrne contains a considered statement that the Code provisions coincide with the common law; on the contrary, the judgment of Wickham J. in O'Halloran v. O'Byrne suggests that his Honour was of opinion that there are differences between the common law and the Code.^[66]

Although neither clear nor entirely satisfactory, the balance of authority favours the conclusions that the material provisions of the Code should not be construed so as to have required the exclusion of evidence of the appellant’s complicity in the murder of Jacobson from his trial for the murder of Mrs Edgerton, and the common law doctrine of res judicata in criminal proceedings does not supplement the provisions of the Code and did not operate to require the exclusion of that evidence.  Those conclusions are also, in my opinion, in conformity with the orthodox approach to the interpretation of a code.^[67]

The outcome of this appeal therefore depends upon the application of the principles relating to abuse of process.  The prosecution accepted that those principles apply, quite correctly in my view.  There has been no judicial suggestion that those principles might be inapplicable because they are not provided for in the Code, and they have been applied on prior occasions.^[68]  The jurisdiction and power of the Supreme Court to prevent abuse of process is both inherent and statutory.^[69]

Once this point is reached, it is my opinion that the appeal should fail.  Especially having regard to the fresh evidence of Mrs Carne, the strength of the case against the appellant of complicity in the murder of Jacobson, the significance of that evidence to proof of his participation in Mrs Edgerton’s murder, and the absence of any submission of unfairness to the appellant, I consider that the admission of the evidence implicating the appellant in Jacobson’s murder did not involve an abuse of process.

The appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A.  No. 553 of 1996

Brisbane

[R. v. Carne]

THE  QUEEN

v.

DAVID NICHOLAS CARNE

Appellant

REASONS FOR JUDGMENT - de JERSEY J

Judgment delivered 24 June 1997

The appellant was convicted of the murder of Mrs Heather Edgerton at Darlington (or elsewhere) in Queensland on Sunday, 28 October 1990.  He appeals against the conviction on grounds relating to the use, in his trial on that charge, of evidence concerning his role in another murder.  That was the murder of one Jacobson at Woodenbong, New South Wales, on Saturday, 27 October 1990.

The appellant was indicted in the Supreme Court of New South Wales on charges of the murder of Jacobson, or being an accessory after the fact to that murder.  The Crown accepted his plea of guilty to the latter.

At the instant trial, the appellant was charged as principal offender, with one Harris, in the murder of Mrs Edgerton by shooting.  Harris pleaded guilty to the murder, and admitted at the appellant's trial, through his counsel, that it was he who fired the shot which killed the deceased.

Harris had been jointly charged with the appellant in New South Wales in relation to the murder of Jacobson committed the day before, again as the consequence of shooting.  The learned trial Judge permitted the Crown to lead evidence of the appellant's role in the murder of Jacobson, and that evidence, if accepted, put the appellant into the category of principal offender, not merely accessory after the fact.  That is because the evidence showed that the appellant encouraged Harris to fire the shot which killed Jacobson.

Hence the two grounds of appeal:

“1. The learned trial judge erred in allowing the Crown to call inadmissible evidence of the murder of one Richard Jacobson and because of the misreception of that evidence, a substantial miscarriage of justice occurred.

2. The learned trial judge erred in allowing the Crown to call evidence implicating Carne as a principal offender in the murder of Richard Jacobson, in the light of the acceptance of a plea of guilty by Carne in the jurisdiction of New South Wales, to being an accessory after the fact to that murder."

To facilitate a proper assessment of the rulings made by the learned Judge, one must of course appreciate the factual background.  The evidence, if accepted, established these following matters, as taken (substantially) from the respondent's counsel's submissions:

"In the week leading up to the weekend of 27 and 28 October, 1990, persons residing at Downhams Property, Woodenbong (in northern New South Wales) were the appellant, his de facto wife Jenny Robinson, their 2 children, Harris and Jacobson.

On Thursday, 25 October, the 3 adult males were involved in the purchase of a brown Morris 1100 with New South Wales licence plates from persons in Kyogle. The vehicle was then driven back to the property at Woodenbong.

On the Friday night 26 October, the 3 men went shooting on the property.

On the afternoon of Saturday, 27 October, 1990 Harris and Jacobson left the house to go shooting. After a short time, the appellant drove after them in the Morris 1100, caught up and gave them a lift to the fence line. Jacobson went to shoot a bird in a tree, Harris pointed the .303 at him, the appellant nudged Harris (‘edged [sic] him on to do it’) and Harris shot Jacobson in the head from close range. I note that this latter evidence was not available when the appellant pleaded guilty to being an accessory after the fact.

The appellant and Harris went back to the house and told Jenny Robinson about the killing, and then the 3 of them went to the pictures in Woodenbong.

After leaving the pictures, the appellant and Harris dropped Robinson at the house and drove the Morris to where Jacobson's body lay.  They took one foot each and dragged it 10 metres where it was loaded into the boot of the car.  Harris then drove the car to the Urbenville State Forest where the body of Jacobson was dumped.

The next morning, Sunday 28 October, the boot of the Morris was cleaned out - the appellant suggesting to Harris that petrol would be a better choice than soapy water, and then burning the carpet and rubber from the boot while Harris did the cleaning.

Later on that Sunday morning, at a site in South-east Queensland, Mrs Edgerton was shot in the head from close range, her body placed in the boot and later dumped under lantana bushes.

Around lunchtime on the same day, the Morris 1100 together with the appellant and Harris and the white Fairlane belonging to the deceased, Mrs Edgerton were seen in various locations in Southeast Queensland between Palen Creek Prison and Lost World.

Her car was driven some distance and abandoned near Palen Creek Prison.  The appellant and Harris drove the Morris 1100 back to Woodenbong - approximately 1 hour 8 minutes drive at 70 to 75 kph.

On 31 October, 1990 the appellant spoke to Wayne Walker and told him, in effect, that there had been a $1,000 bet on the murder of Jacobson between him and Harris.

The appellant told ... lies aimed at giving both himself and Harris an alibi for the murder of Mrs Edgerton: essentially that neither he nor Harris nor the Morris had left Woodenbong for any length of time on Sunday, 28 October, 1990."

The evidence of the appellant's involvement in the murder of Jacobson was admissible at this trial only if the test confirmed in Pfennig v. R. (1994-5) 182 CLR 461 was satisfied.  I will return to the content of that test.

The Crown contended before the learned judge that the circumstances of the first killing were so closely related to those of the second, in the particular aspects of timing, manner and parties, as to satisfy that test. The Judge analysed the similarities and differences between the two killings, as disclosed by the evidence to be called. He noted these similarities:

1. both victims were shot in the head;

2. they were probably shot from the right hand side (although the evidence ultimately was that the bullet struck Mrs Edgerton in the right temple and that Jacobson was shot in the back of the head);

3. the shootings took place at quite close range;

4. the rifle used in NSW high powered, and in Queensland, medium to high powered;

5. Crown alleged no reason of substance for the killings: it was "killing for killing's sake";

6. the Morris 1100 motor vehicle was involved in both murders.

He also noted these matters of contrast:

1. Jacobson was known to the accused men, whereas Mrs Edgerton was a stranger;

2. Jacobson was killed at or near to the property where Harris and appellant resident;

3. Jacobson was initially left where he was shot and later collected and placed in the Morris 1100;

4. Jacobson's body was disposed of by Harris alone;

5. disposal of Jacobson's body was by dumping over the edge of a road or embankment, whereas Mrs Edgerton's body was placed in the boot of her own vehicle and driven some distance off the road and concealed under a Lantana bush.

He concluded the test in Pfennig was met, and that the evidence might therefore be led.

Counsel for the appellant submitted before us that there were in fact "striking differences" between the two killings, especially as to familiarity with the victim, motive, and whether the killing was premeditated or spontaneous.  As to the last matter, he pointed for example to evidence that Harris had told the appellant's de facto wife of his intention to shoot Jacobson before the event, so that the earlier killing was premeditated.  As to possible motive, there was evidence, from Harris, that Jacobson had spoken indiscreetly about Harris's drug dealing.

The approach to be taken to situations like this was analysed by the High Court in Pfennig.  I should set out the following lengthy passage from the joint judgment of Mason CJ and Deane and Dawson JJ (pp. 480-484):

"... 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. It was also accepted that, in order to be admissible, propensity evidence must possess ‘a strong degree of probative force’ or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity. Very often, propensity evidence is received when there is a striking similarity between different offences or between the evidence of different witnesses. 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 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 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. Mason C.J., Wilson and Gaudron JJ. said:

‘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:

‘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. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here ‘rational’ must be taken to mean ‘reasonable’ 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 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 suggested in Boardman, 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."

There are two parts of that lengthy passage I wish to highlight.  First, the expression of the test at pp. 481-2:

"... 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."

Second, the further elucidation of that test at pp. 482-3:

"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. Here ‘rational’ must be taken to mean ‘reasonable’ 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."

The issue, then, is whether evidence of the appellant's involvement in the New South Wales killing could, when added to other evidence of the appellant's complicity in the Queensland killing, found the inference - as the only reasonable inference open - that the appellant committed the Queensland killing.  In my view that test was not satisfied here, because the evidence of the appellant's involvement in the New South Wales killing did not go beyond establishing his propensity to that sort of crime. Take, by contrast, a situation where on five consecutive days two persons jointly commit five murders, then on the sixth day, in the same geographical area, one of them commits a sixth and there is evidence implicating the other.  It is readily conceivable that in that situation, the jury could reasonably regard that other alleged offender's involvement in the preceding five murders as supporting the inference beyond reasonable doubt that he was also guilty of the sixth.  But to my mind, in this very different case, a jury could not reasonably use evidence of the appellant's involvement in the earlier murder as proof of his guilt of the second, because on my assessment that evidence, when added to the other evidence implicating him in the second murder, could not be used as the basis for a conclusion, as the only reasonable conclusion, that he was guilty of that second murder.

The learned Judge, as I have indicated, compared the two incidents. While "striking similarity", "unusual features", "underlying unity", "system" or "pattern" are not essential prerequisites for admissibility, their presence will often, as a matter of common sense and experience, exclude the possible reasonable explanation to which Pfennig and Hoch refer.  On my assessment, and with due respect to that of the Judge, those features were not present here. The aggregation of similar and different features suggests no shared, significant deviation from the common norm of criminal acts of murder, no significant departure from the "stock in trade" of persons who kill and dispose of their victims' bodies. Put another way, the appellant had not left any unique "signature" (cf. Pfennig, p. 488) on the first incident which, through reappearance in the second, would warrant the jury's saying: "adding to what we already know of his complicity in the second, his involvement in the first - of course he must have murdered again, it is the only conclusion we can reasonably reach".

I would allow the appeal, quash the conviction and order that there be a further trial of the appellant on this charge. (It has not been necessary for me to deal with the second ground of appeal.)

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 24th June 1997

I have read the reasons for judgment prepared by de Jersey J.  As his Honour sufficiently rehearses the facts of the case it is not necessary that I do so.  I am in agreement with the conclusion reached by his Honour and with the orders proposed.  I will however make a few short comments concerning the process by which I reach that conclusion.

de Jersey J has referred to the relevant extracts from the decision of the High Court in Pfennig v R (1994-5) 182 CLR 461.  Many of the difficulties in applying the decision in Pfennig arise from a tendency to concentrate upon the fact that the disputed evidence constitutes a criminal offence.  Although this is the reason for special rules relating to admissibility, it is not the quality which renders it relevant.  Unless the Crown can advance a logical basis for concluding that the evidence proves a fact in issue other than merely by demonstrating propensity, the particular problems dealt with in Pfennig do not arise as the evidence is inadmissible because it is irrelevant.

In the present case, the Crown asserts that there are facts about the Jacobson killing so strikingly similar to that of the Edgerton killing as to render it objectively improbable that the appellant did not commit the latter offence, taking into account the other evidence linking him to both killings.  The learned trial judge referred to a number of factors in this regard.  These appear in the reasons of de Jersey J.  The first four establish nothing more than that the deceased in each case was shot with a rifle at relatively close range.  This may be a similarity, but it is hardly a striking similarity sufficient to lead to the inference that the accused was involved in both killings.  It is also suggested that absence of motive is a similarity.  There was actually some suggestion of motive in the case of Mrs Edgerton in that it was said that she had come upon Harris in circumstances associated with his involvement in a drug deal.  However, even assuming that no motive was shown for either murder, that does not mean that both were shown to be without motive.  I suspect that this failure of logic led the Crown to wrongly identify the evidence of the Jacobson killing as being relevant.  It suggests that both murders were "thrill killings" - killings for fun, without motive.  However, that the Crown is unable to prove a motive in a particular case does not mean that there was no motive.  Absence of evidence of motive cannot be a point of similarity.

Finally, reliance is placed upon the involvement of the Morris 1100 motor vehicle in both incidents.  There is no doubt that the Morris was an important aspect of the Crown case.  It was associated with both Harris and the appellant and was seen being driven in convoy with Mrs Edgerton's motor vehicle on the day of her death.  This significance, however, had nothing to do with its involvement in the Jacobson killing, nor did that involvement in any way enhance its significance in connection with the Edgerton killing.

The real basis of the attempt to lead evidence of the appellant's involvement in the Jacobson killing lay in Harris' admitted involvement in both killings.  The appellant was involved with Harris in the Jacobson killing, and he was seen with Harris on the day of the Edgerton killing.  In effect, the Crown suggests that this is sufficient to justify leading evidence concerning the former in the present matter.  That is merely to suggest that Harris and the appellant together have a propensity to kill and that it is improbable that Harris killed alone.  The evidence goes only to propensity and should not have been admitted.

I agree that the conviction must be quashed.

As to a re‑trial, in DPP v Fowler (1984) 154 CLR 627 at p. 630 the High Court said:

"The power to grant a new trial is a discretionary one and in deciding whether to exercise it a court which has quashed the conviction must decide whether the interests of justice require a new trial to be had.  In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case.  ... Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused."

In this case, the appellant gave evidence at his trial.  It is not difficult to imagine circumstances in which it would be an injustice to require an appellant in that position to subject himself to a re‑trial.  This problem had not occurred to the appellant's legal advisers until I raised the matter and in any event, the charge is a very serious one.  There should be a new trial.  However, one of the factors which the Crown should take into account in determining the way in which it will conduct a criminal trial is the possibility that any conviction may be upset on appeal and that the appellate court may conclude that there would be injustice in ordering a new trial if the appellant has given evidence.