R v Dupas

"There [was] no sufficient identity of factors, before the death of each of the victims, which invest[ed] those circumstances with such strong probative value as to justify admitting the evidence in support of a contention that, because the accused man murdered Nicole Patterson, he also murdered Margaret Maher".

8 However, the trial judge allowed the admission of the evidence on the second basis, that is, for the sole purpose of establishing that it was the applicant who excised Margaret Maher's left breast after she died. By doing so, the trial judge permitted the Crown to argue that as the applicant mutilated Nicole Patterson, he may also have performed the post-mortem mutilation of Margaret Maher. Having established that fact, the Crown could then seek to convince the jury that the person who mutilated Margaret Maher had also murdered her. In allowing the admission of the evidence on this basis, his Honour accepted that the cutting of the breasts from Nicole Patterson was of such a rarity as to make it a "striking and highly probative fact" in establishing that it was the same person who cut away Margaret Maher's left breast, notwithstanding the dissimilarities which could otherwise be identified between the two cases.

9 In essence, the applicant argues that in admitting the evidence, the judge erred in three key respects. Firstly, it was submitted that the trial judge failed to properly accord due weight to the "considerable" dissimilarities surrounding the deaths of Margaret Maher and Nicole Patterson in assessing the probative weight of their "strikingly similar" or unusual post-mortem mutilations. The applicant said that the trial judge erred in concluding that the differences surrounding both women's deaths were of limited "relevance". Second, the applicant argued that the trial judge failed to properly appreciate the "irreparable" prejudice to the applicant of the admission of the evidence as was "evident" in his Honour's conclusion that the directions to the jury could assuage any such prejudice and prevent any misuse by the jury of the evidence. Finally, it was argued that the trial judge erred in holding that he was bound by authority not to entertain discretionary exclusion of the Nicole Patterson evidence.

10 Section 398A of the Crimes Act directs the courts on the admissibility of similar fact evidence, a category of "propensity" evidence, in the Victorian jurisdiction. It provides as follows:

(1) This section applies to proceedings for an indictable or summary offence.

(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.

(3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2).

(4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness.

(5) This section has effect despite any rule of law to the contrary.

Callaway J.A. succinctly stated in R. v. Best[5] that the test of admissibility under s.398A(2) of the Crimes Act is that similar fact evidence will be held to be inadmissible unless its probative value can be proved sufficiently great to make it just to admit the evidence despite the potential for unfair prejudice to the accused in showing that he or she was guilty of another offence.[6] The test contained in s.398A(2) would appear to have adopted the English test of admissibility set out by the House of Lords in Director of Public Prosecutions v. P.[7] Subsection (2), in particular, was intended to override the common law doctrines which at that time had begun to emerge in Australian case law in cases such as Sutton v. R.,[8] Pfennig v. R.[9] and Hoch v. R.;[10] namely, that similar fact evidence was not admissible where there was a "reasonable view" of the similar fact evidence which was consistent with the innocence of the accused. According to Callaway J.A. in Best, the result of the adoption of the English test of admissibility for propensity evidence in s.398A was that:[11]

"... questions of collusion and unconscious influence are left to the jury. I need not rely on the Attorney's express reference to R. v. H. in the second reading speech in order to reach that conclusion. It is entirely consonant with the common law as understood in Australia to leave the reliability of evidence to a jury. They are able, and in some cases better qualified than a judge, to assess the weight of an argument that evidence has been concocted or is the product of unconscious influence."

Accordingly, a more flexible criterion for admissibility now applies in Victoria. That being so, a court which must decide on the admissibility of propensity evidence must make a value judgment as to whether in all the circumstances it is just to admit the evidence despite any potential prejudicial effect upon the accused. The court must also keep in mind however that similar fact evidence, as with all propensity evidence, should be received with great caution, and admit it only where its probative value exceeds prejudicial effect.[12]

11 The applicant contended that the trial judge erred in assessing the probative weight of the post-mortem mutilations pursuant to the test set out in s.398A of the Crimes Act by failing to give due weight to the dissimilarities surrounding the deaths of the two women. Counsel for the applicant who argued this point, Mr Carter, argued that the post-mortem treatment of the deceased could not be compartmentalised or kept separate from the murder itself. On this view, the trial judge had, in other words, failed to consider the "entirety of circumstances" of the two murders and had artificially separated the methods of murder from the post-mortem acts of mutilation. In support of this stance, the applicant contended that "very grave dangers arise from narrowing the looking-glass"; that any initial impression of similarity would be overwhelmed by the totality of evidence. The only authorities cited by the applicant as relevant to this particular point were Markby v. R.[13] and Festa v. R.,[14] which were used to support the general proposition that, in any event, the admission of similar fact evidence is rare and may be viewed as the exception rather than the rule.

12 Nevertheless, it is difficult to see why, as a matter of commonsense, the post-mortem acts of mutilation cannot be viewed in isolation. Where similar fact evidence is sought to be adduced, emphasis is upon finding a common characteristic or "hallmark" which will somehow identify an alleged offender. Indeed, the stamp of a killer may not be represented in the totality of the murder itself. Accordingly, whilst the probative value of the evidence does not depend on there being a striking similarity in the separate accounts, there must be "some unusual feature common to the events in question, or some underlying unity, system or pattern"[15] where "it renders it improbable that two or more persons would give an account of particular conduct if that conduct did not, in fact, occur".[16]

13 It is also a principle of the common law that similar facts will be admissible, even where the similar facts occurred after the offence which they are adduced to prove, as here: see Pfennig v. R;[17] Thompson v. R.[18]

14 In D.P.P. v. P, Lord Mackay of Clashfern L.C. stated that a "signature" or "other special feature" must be found for similar facts to be received.[19] As a matter of course, the "signature" may become a focus of the trial once it is let in. However, before its admission, the dissimilarities will form a natural consideration when making an assessment on admissibility under s.398A of the Crimes Act. Although the judge must review any similarities which may be evident, he or she must also take into account the differences which may lessen the probative force of the evidence in question. In other words, comparisons between both similarities and dissimilarities form a natural part, and may not be divorced from, the balancing exercise contained in s.398A, which is often put in terms of an appraisal of the probative weight as against the prejudice to the defendant. Therefore, where the trial judge's value assessment under that section of the Act is attacked on the basis that the judge failed to take into account the "striking dissimilarities", what is essentially attacked is the first side of the equation, namely the judge's assessment of the probative force of the evidence.

15 It is to be kept in mind that the propensity evidence in question is only admitted in those rare cases where the propensity in question has a specific connection with the crime.[20] Absent the connection in question, the rule is as stated in Dawson v. The Queen:[21]

"It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused."

In determining whether there was such a specific "connection" and whether the evidence should be admitted, the trial judge took into particular account the evidence of Ms Jenny Mouzos, a research analyst employed by the Australian Institute of Criminology who at the time of the trial managed the National Homicide Monitoring Programme. Ms Mouzos gave evidence that of all homicides committed in Australia between 1 July 1989 and 30 July 1998, the only two cases found involving the removal of a breast or breasts were those of Nicole Patterson and Margaret Maher. The trial judge assessed the evidence adduced by Ms. Mouzos as having significant probative value, given the fact that the statistics were national and covered the period of an entire decade.[22] Significance was also placed on the fact that the two instances of breast excision occurred within 18 months of each other and both in the northern suburbs of Melbourne.[23] His Honour thereby reasonably concluded from this evidence that it could be fairly said that, in Australia, excision of the breast or breasts from a woman following her death was a rare and unusual occurrence. These were just some of the principal similarities relied upon for admitting the evidence.

16 An implicit part of making the trial judge's determination on whether to admit propensity evidence of this sort also includes an assessment of the dissimilarities. It is apparent from his Honour's pre-trial ruling[24] that the applicant's counsel in his submissions and argument regarding the admissibility of the similar fact evidence drew great attention to two particular dissimilarities relating to the post-mortem excision of the breasts of the women that, according to the applicant, seriously reduced the probative force of the similar fact evidence and which he took into account in making a value judgment. Firstly, the applicant's counsel referred to the removal of just one breast in the case of Margaret Maher and both breasts in the case of Nicole Patterson. Second, the fact that the breasts were entirely removed from the crime scene in the case of Nicole Patterson, whereas tissue from Margaret Maher's left breast was stuck in her mouth. With respect to these dissimilarities, the trial judge stated in his pre-trial ruling that:[25]

"... the two differences adverted to by [defence counsel] Mr Montgomery do not necessarily mean that the removal of the two breasts in the case of Nicole Patterson does not have a high probative value in the present case. Those differences only mean that the probative value of the evidence relating to Nicole Patterson is not as high as if the two cases were completely identical".

It is therefore clear that the judge carefully considered the differences highlighted by the defence before allowing the admission of the evidence.

17 Indeed, his Honour exhibited the same fair approach when he excluded

similar fact evidence on the Crown's first basis for admissibility, i.e. to establish that the applicant both murdered and mutilated the deceased, where the differences surrounding the actual murders themselves were determined to be so cogent as to overwhelm the alleged similarities. In the outline of submissions, the applicant contended that the trial judge "concluded that the differences disclosed by the circumstances surrounding both women's deaths were for the purposes of his task, 'of limited relevance'".

18

However, in the pre-trial ruling on the admissibility of the evidence, his

Honour referred to the differences between the two cases as of "limited relevance" only with respect to the removal of the breast or breasts. In other words, the differences were of "limited relevance" only when determining the fact in issue, namely, the identity of the person who excised Margaret Maher's left breast.[26] That question was, in any case, ultimately one for the jury to decide. His Honour's observation did not apply in the context of other issues arising in the case, the methods of murder, nor any of the other circumstances surrounding the two cases. In actual fact, it was the sum total significance of the differences with respect to the methods of murder which was a major consideration as to why the trial judge confined the admission of similar fact evidence to the issue of breast excision alone.[27]

19 Thus, given the nature of the test of admissibility for propensity evidence under s.398A(2), it is difficult to see how the judge made an error in assessing the similarities and differences. There are many difficulties inherent in assessing the admissibility of propensity evidence and there is no precise, formulaic approach in the way a judge approaches an evaluation of the probative force of the evidence in question. The trial judge accordingly did not err in concluding that failure to admit the Nicole Patterson evidence would have been an "affront to the commonsense". In applying the test of admissibility, the question is, as Gibbs A.C.J. said in Markby v. The Queen,[28] "... one of degree, and in answering it the judge must apply his [and here I interpolate 'her'] experience and commonsense...". In my opinion there is no obvious misjudgement here on the part of the trial judge which acted to inflate the probative force of the Nicole Patterson evidence to an unacceptable level. On the contrary, the trial judge showed great consideration for both sides of the argument. As Lord Mackay of Clashfern L.C. held in D.P.P. v. P. when discussing the application of admissibility principles in relation to similar fact evidence:[29]

"These matters raise questions of law but also involve judgments on matters of degree. Judgments properly made in the light of the appropriate principles should not, I think, yield results which could properly be described as a lottery".[30]

20 I do not however entirely accept the submission of the Crown on this particular point. The Crown attempted to sidestep any difficulties presented by the argument that the two post-mortem mutilations were conducted in different ways by submitting that the force of the evidence in question was not related to the manner in which the breasts were mutilated but rather the "fact" that such mutilation had occurred. In my opinion however, and on the evidence presented before and during trial, the manner in which the mutilation of the deceased occurred following death was inseparable from the fact that it did occur. In order for the judge to admit the evidence in the first place, it is clear that the method of mutilation formed an integral part of assessing both similarities and differences. Likewise, by the time of trial, for the jury to reach a conclusion on the identity of the murderer, it is clear that they would first have to reach a conclusion on the identity of the mutilator. It follows that in order to identify the mutilator, it was a crucial part of the jury's reasoning to know something of the manner in which the breast or breasts were excised.

21 In any case, the Crown's submission in this regard does not affect the outcome on the point. As I have stated, the trial judge was clearly correct in focussing on the fact in issue sought to be proved by the Crown. There can be no support for the view that his Honour did not also sufficiently consider the dissimilarities in post-mortem mutilations. His Honour was also not wrong to isolate the post-mortem mutilations from the methods of murder in the two cases.

22 On the admissibility question, the applicant also contended that, in allowing the admission of the similar fact evidence, the trial judge erred in failing to appreciate the effect of the "irreparable" prejudice caused to him. The question whether to admit the Nicole Patterson evidence before trial was essentially approached as a sort of balancing exercise between probative force and prejudicial effect pursuant to s.398A of the Crimes Act. In short, the task before the court was to determine whether, on the evidence, the probative value of the similar fact evidence outweighed the prejudicial consequences of admission and whether it was just to accede to its admission into evidence. The applicant argued however that, in making an appraisal pursuant to s.398A of the Crimes Act, the trial judge erred in that he "under-valued" the degree of prejudice flowing from the admission of the evidence itself and also over-estimated the ability of the jury to comply with judicial directions as to the permissible use of that evidence. Compounding the issue was the extensive media coverage of the applicant's profile and pending case. It was submitted that these inter-related factors simultaneously rendered a miscarriage of justice with the applicant in the end receiving an unfair trial.

23 Whilst the trial judge acknowledged the very real risks of prejudice in this case before admitting the evidence, it was thought that strict and detailed directions to the jury would curtail much of the prejudice stemming from the admission of the evidence. Given the notoriety of the applicant and the high profile of the case in the media, it was expressly conceded by the judge that it was doubtful whether such directions would be able to entirely allay all prejudice.[31]

24 In R. v. Tektonopoulos, Winneke P. discussed the need to proceed with great caution in cases where similar fact evidence is sought to be adduced, observing that it is in such cases that the risk of prejudice is highest.[32] This would appear to be particularly the case where the evidence is tendered for the purpose of ascertaining the identity of the accused as the offender.[33] The President went on to say that:[34]

"In such cases the risk is high that the jury will reason, from the mere fact of established criminal propensity, that the accused is the offender. That is why the courts have insisted in such cases that there should be something in the evidence, in the nature of 'striking similarity' with the offences charged which strongly points to the accused as the offender".

25 It is true that, once the evidence sought to be adduced by the Crown was admitted in this case, there would almost certainly be prejudice to the defendant. As was acknowledged at trial, the very nature of the Nicole Patterson evidence had an inherent prejudicial intention.[35] The existence of prejudice is in any event nearly always a foregone conclusion in similar fact cases.

26 Nevertheless, it should be remembered that the test in s.398A(2) is flexible.[36] It applies "whatever the reason that gives the evidence its probative value and whatever the nature of the prejudice that is apprehended".[37] Propensity evidence will be admissible whenever it is just to do so "in all the circumstances". Those circumstances will sometimes include the impracticality of conducting the trial in a sensible manner unless the evidence in question is admitted.[38]

27 This was a trial where it would be difficult to see the conduct or subsequent conviction of the applicant without the admission of the similar fact evidence in question. Nevertheless, there will be no error on the part of the trial judge where a value judgment has been made in accordance with the strictures set out in s.398A(2). The application of the rule itself requires a precise balance between probative force and prejudicial effect. I have already canvassed the likelihood of prejudicial effect; probative force depends on relevance and cogency. Counsel for the applicant, correctly in my opinion, did not attack the trial judge's reasoning on the basis of relevance; for once admitted, the identity of the person who excised the breast or breasts of the women after their deaths was clearly relevant.[39] Rather, the case made was that the effect of prejudice to the applicant flowing from its admission was that it was "undervalued".

28 Although, as discussed, propensity evidence in general inevitably carries with it some degree of prejudice, the question may be put in terms of whether the degree of prejudice is such that it can only be dealt with by exclusion of the evidence. The applicant has not, as far as I can make out, pointed to any substantive reason as to why the trial judge erred in the application of the rule apart from making the assertion that his Honour "undervalued" the effect of the prejudice. On the contrary, there is evidence that his Honour thought long and hard about the prejudice to the applicant should he admit the evidence in question. In the end, he concluded that the probative force of the evidence superseded the prejudicial effect and that it was just in all the circumstances that the evidence be let in. In essence, there was no error in the trial judge's reasoning process in that respect. Indeed, counsel during argument ran through many of the same arguments pertaining to prejudice as contended at trial. There was accordingly little that was "new" in their arguments which would allow for the applicant to be treated as a special case.

29 In addition, as I noted above with respect to the applicant's argument that the judge failed to take into consideration the "striking dissimilarities", it should be remembered that there is no one formulaic approach to the admissibility test contained in s.398A(2). Although the potential for a miscarriage of justice as a consequence of the admissibility of propensity evidence is always present, it is ultimately a question for the trial judge to determine the degree of risk and the appropriate manner in which it should be addressed depending on the facts of a given case.

30 With regard to prejudice, the applicant also highlighted the extensive media coverage the applicant and his pending trial received. Nevertheless, if all cases for serious crimes were dismissed as a result of claimed prejudice as exhibited by the media, there would barely be a serious criminal case in this jurisdiction which could go ahead. Trial directions must therefore suffice in many instances, though not in cases where the trial amounts to an unfair one. For the applicant to succeed on this ground, there must be special cause. However, as I have stated, there was no error in the way in which the judge assessed the admissibility of the evidence pursuant to s.398A(2), nor was there a miscarriage of justice as a result of the way in which the prejudice aspect was handled. For these reasons, the applicant fails to make out any error on the part of the trial judge with respect to the assessment of prejudice compared to the given probative force of the evidence in question.

31 Relevant to the prejudice argument under the admissibility ground, the applicant also argued that it was "inevitable" that the jury would have reasoned impermissibly. This ground directly relates to the applicant's assertion under the next ground ("Ground 1B"), namely, that the directions of the trial judge to keep the evidence of the Nicole Patterson similar fact evidence discrete were insufficient in the circumstances. I intend to more fully explicate this argument when I address the applicant's "Ground 1B".

32 I turn next to deal with the applicant's final contention under Ground 1A that the trial judge erred in considering that he was bound by authority not to entertain discretionary exclusion of the Nicole Patterson evidence. The Crown on the other hand contended that, having regard to the terms of s.398A of the Crimes Act, there was no room for this residual discretion, known as the "Christie" discretion, to operate.

33 In support of their contention, counsel for the applicant cited several cases in the Australian jurisdiction where the operation of the residual discretion has been unresolved. For instance, the court in R. v. T.J.B.[40] left open the possibility as to whether the section leaves any room for the operation of a "Christie" discretion.[41] In other cases, guarded statements have been made by judges leaving open the possibility: see Markby v. R.;[42] Perry v. R.;[43] Sutton v. R.;[44] Harriman v. R.;[45] R. v. Tektonopoulos;[46] R. v. Debs and Roberts.[47]

34 Nevertheless, the general position is that there is little room, if any, for a "Christie" discretion to operate in conjunction with s.398A.[48] As McHugh J. pointed out in Pfennig:[49]

"[O]nce it is accepted that the prejudicial effect of the evidence is a matter going to admissibility, no scope remains for the exercise of the discretion to reject probative evidence in criminal trials on the ground that it is unduly prejudicial to the accused".[50]

McHugh J.'s observation in Pfennig is reflected, consistently, in a later statement made by Callaway J.A. in R. v. T.J.B.[51] Although the court in T.J.B. eventually left open the possibility that the discretion still operated, his Honour also said that s.398A "prescribes a rule that must be satisfied before a particular class of evidence is admissible, not a discretion to exclude evidence that is admissible".[52]

35 Moreover, as Winneke, P. in Tektonopoulos observed, though it is open to an appellate court to review and overturn a trial judge's ruling on the facts before it, "it would be loath to do so if it were apparent that the trial judge had reached his determination in accordance with proper principle".[53]

36 That view would also appear to be in line with the stance in New South Wales, where the general discretion contained in s.135 of the Evidence Act 1995 (NSW) is subsumed by the broader discretion contained in s.137. Accordingly, once the court has found that the probative value of the evidence is outweighed by the danger of unfair prejudice, there is no residual discretion; the evidence must be excluded: see Blick v. R.[54]

37 In any event, as the proper principle has been applied in this case, there would be no argument for such a residual discretion to operate even if it was possible for it to apply in the Victorian jurisdiction. Having determined that the evidence was admissible, it is unnecessary to determine whether a miscarriage of justice in fact occurred here. It follows that in my opinion, the applicant has failed to make out any of the arguments constituting "Ground 1A".

38 I turn now to a consideration of the applicant's "Ground 1B".

39 Essentially, counsel for the applicant both argued the jury's inability to follow directions and pointed to the artificiality of the law and the (supposed) inadequacy of the trial judge's directions with regard to the Nicole Patterson evidence. Mr Carter argued this in relation to the admissibility point under the heading of prejudice and attempted to demonstrate there was inevitable misuse of such evidence by the jury and therefore the evidence should not have been admitted. I briefly alluded to that line of reasoning earlier. Mr Boyce on the other hand argued that the trial judge's directions with respect to the similar fact evidence were faulty, effectively leaving the jury without appropriate instruction with the result that the trial miscarried. As the arguments are in effect dealing with the same matter, I intend to deal with their arguments just the once. Mr Carter submitted that his argument had a "dual aspect"; on the one hand, the ability of jurors to follow a permissible line of reasoning with respect to the similar fact evidence, and on the other, the ability of jurors to disregard media publicity they may have been exposed to.

40 At heart, both arguments are relevant to the function of juries and their ability to operate under legal "fictions". As for Mr Carter's first argument, it was argued that the jury would be incapable of ameliorating the evidence as they were requested to do - in this case, to separate the mutilation from the fact of the murder - and could not be trusted to reason, despite directions, that the murderer of Nicole Patterson was ipso facto not just the mutilator, but also the murderer, of Margaret Maher. He emphasized the "artificiality" of the judge's instructions to the jury in this regard. He stated that the jury were not able to comply with a permissible line of reasoning with respect to the evidence, despite frequent repeated instructions. At one point he stated that "it simply pushes too far to say that the Nicole Patterson evidence... could have been simply intellectually filed away by the jury...". And again: "It is submitted that it was impossible for the jury, even in the face of strong and repeated directions, to quarantine the evidence in that way and to avoid engaging in pure propensity reasoning". Mr Carter also referred to the comment made by Mr Montgomery, who represented the applicant at trial but not on appeal, who said that it would require the jurors to perform "gold medal mental gymnastics".

41 As for Mr Carter's second "aspect", he argued that the admission of the similar fact evidence only served to "reinforce" the negative publicity which the jury may have been exposed to. Counsel cited R. v. Glennon[55] as an example of a case which underscored the difficulties commonly confronting juries in the face of antecedent publicity. In Glennon, the respondent was convicted of a sexual offence of a minor in 1978. Seven years later when he was a witness in a case, he was cross-examined about his earlier conviction and questioned about the alleged sexual assault of one of the accused. The allegation received wide publicity in the media. When investigated, the respondent (Glennon) was charged with numerous other offences. Prior to his trial, however, a well-known radio commentator launched a series of attacks against the respondent, alleging serious criminal conduct and sexual impropriety. Mention was also made of his previous conviction. The commentator was subsequently convicted of contempt of court regarding the allegations made and was imprisoned. Court proceedings against the commentator and his unsuccessful appeals and imprisonment were the subject of much public interest and extensively dwelt upon by the media at the time. The respondent later sought a stay of his trial at the County Court claiming that he had been denied a fair trial owing to the prejudicial effect of the pre-trial publicity. That application was dismissed, as was his application for a stay of trial by a single judge of the Supreme Court of Victoria. The Court of Criminal Appeal however overturned that decision, quashing the convictions and ordering verdicts for acquittal. The Crown subsequently applied to the High Court for special leave to appeal; the appeal was allowed by a majority.

42 Relevantly, Brennan J., after quoting reasons given by Crockett J. in the Court of Criminal Appeal for refusing a stay, in Glennon said:[56]

"In my respectful opinion, his Honour's conclusion was clearly right either on the ground that the present case is not an 'extreme case' or on the ground - which, in my respectful opinion, is a ground better founded on principle and more realistic in practice - that the trial of the applicant, provided it was as fair as the Court could make it, would produce no miscarriage of justice."

Dawson J. was in full agreement with the reasons of Brennan J.; both of whom formed part of the majority. Although the applicant in this case earlier sought a stay of proceedings, which was rejected, that same principle must be applied to the point in question. Namely, it is only in extreme cases that pre-trial media coverage will cause a miscarriage of justice to the point where jury directions will not suffice. I would suggest however that Glennon provides an example of a case where the respondent and circumstances surrounding the case received even more publicity than that which the applicant received. It is a moot point; the upshot was that the High Court determined that jury directions should have been adequate in preventing an unfair trial for the respondent in Glennon. In light of the decision in Glennon, in my opinion the applicant should fail for much the same reasons.

43 The applicant's argument with regard to the publicity received by the applicant also fails for another reason. It was fundamentally flawed in that the contention submitted by counsel for the applicant assumed that all the jurors, or at least a significant number of them, were exposed to media reports about the applicant and the applicant's alleged crime. Second, it assumed that, even if they had been exposed, they were necessarily influenced by what they read, and third, even if they were influenced by what they had read, they were wholly unable to heed the judge's instructions at trial to disregard it. In my opinion, there was no basis for making any of these assumptions.

44 In any case, his Honour was meticulous in his verbal instructions to the jury. So that they might better comprehend their instructions, they were even provided with a kind of road map in writing containing the permissible lines of enquiry. The approach of the trial judge in this regard was thorough and scrupulous to say the least.

45 The trial judge also indicated his clear confidence in the ability of the jurors to follow all instructions. His Honour obviously gave great thought to the issue when he said:[57]

"I am concerned that the evidence, if admitted, will cause the jury to recall, or be affected by, publicity they have already read about the accused man concerning his other alleged offending. On the other hand, it is important not to overlook, or underestimate, the capacity of juries and the increasing sophistication of our juries. Historically juries have shown, time and again, the ability to focus on the evidence and the issues which are at large in a trial before them, unaffected by negative or sensational publicity which might have preceded the trial. Particularly in more recent decades, verdicts of juries, both in criminal and civil cases, have reflected the fact that juries do take seriously judicial directions given to them that they must bring in a verdict according only to the evidence, and not according to any prejudice which they may have about the parties or the cause which is before them. Certainly, it would be naïve to contemplate that juries are entirely impervious to the type of publicity to which Mr Dupas has been subjected. Nevertheless I do consider that, properly directed, any such prejudice can be sufficiently allayed so as not to deny the accused man a fair trial."

46 In my opinion and experience also, the applicant's argument in this respect gravely underestimates the ability of jurors to follow directions. Although neither the courts nor the public are privy to the inner workings of jury deliberations,[58] it must be evident that prejudice was such that the jury could not possibly have reached the conclusion they did without being unfairly influenced by antecedent external influence. For the reasons given above, the applicant has not made out his case with respect to Mr Carter's argument.

47 On a different tangent, Mr Boyce argued that the trial judge's directions with respect to the similar fact evidence were faulty, effectively leaving the jury without appropriate instruction with the result that the trial miscarried. He attacked the structure of the charges and the content of them. With regard to the judge's directions on dissimilarities, Mr Boyce contended that his Honour did not clearly direct the jury to consider the similarities in the overall context of the evidence. He submitted on the authority of Vaitos v. R.,[59] that in similar fact cases of this sort, the judge must instruct the jury that they are to weigh into the balance such dissimilarities as they might find proven. Counsel said that such was not the case at the applicant's trial.

48 A related complaint was that the trial judge had waited until after directing the jury on the Nicole Patterson evidence at least three times before giving a "complete and adequate summary of the dissimilarities relevant to the jury's assessment of the cogency of the similar fact evidence". In considering whether the jury directions were unbalanced in this respect, regard must be had to the fact that the Crown's case was a strong one once the similar fact evidence was adduced. There were three experts which the Crown in particular relied upon in drawing similarities between the two cases.[60] Their evidence was extensive. When summarising the evidence presented at trial, the trial judge thoroughly detailed the dissimilarities highlighted by Mr Montgomery, usually following a summary of the Crown submissions. There were numerous references made to the differences and the order they were delivered in was for the sake of clarity and logic. I am satisfied that that was the case and there is no need to explore that particular argument any further.

49 As for the contention that the trial judge failed to instruct the jury to weigh the dissimilarities into the balance, that was not the case in my opinion. His Honour expressly stated in the charge:

"When I use the word 'unique', I do not mean it in the strict literal sense of it being the only incidence ever in the world. Rather, I use the word 'unique' in the more common meaning in order to convey to you that the removal of the breasts or breast after death must be so rare and so unusual as a feature. In other words, did in each case the removal of the breasts or breast of each woman constitute the signature or stamp of the one and the same person?

"Now, when you look at that step, that critical step in the Crown's case, you carefully and critically scrutinise and examine the similarities and dissimilarities relating to the excision of the breasts or breast and the scissor cuts."

Such express instructions aside, the jury could not have failed to realise that their task was to weigh the dissimilarities into the balance. Given the repeated references to dissimilarities, that this was the task of the jurors was implicit.

50 Another complaint was that "significant differences" between not only the post-mortem mutilations but also the deaths of Patterson and Maher ought to have been "woven into" the judge's directions. However, earlier I discussed that the judge was not incorrect to ameliorate the post-mortem mutilation of Nicole Patterson from the circumstances of her death. Although the applicant contended that the circumstances of the death of Nicole Patterson should have been introduced at trial so that the jury could have formed a better view of the differences in methods of murder, that would have amounted to the admissibility of similar fact evidence on the Crown's first basis (and which the defence at trial vociferously objected to), namely, the Crown's attempt to enter into the facts of the Nicole Patterson murder in order to establish that the applicant both murdered and mutilated the deceased. The applicant cannot have it both ways. If the introduction of similarities in evidence regarding the actual murder of Nicole Patterson were rejected for sound reasons by the trial judge, he cannot then say that the judge was wrong for not alluding to the differences in murder methods.

51 For these reasons, the applicant fails to meet the test set out in Glennon and does not succeed in demonstrating that his case was an extreme one in terms of publicity affecting the outcome of his trial.[61] Nor was there anything in this case to indicate that the verdict was the result of the inability of the jury to follow directions through adherence to a permissible line of reasoning and disregard the publicity factor. As I have said, I find that the trial judge was meticulous in his directions and charge to the jury.

52 Accordingly, the applicant fails to make out Ground 1B.

53 The applicant further submitted that the trial judge incorrectly directed the jury on the compression applied to the deceased's neck as one of three possible causes of death. The pathologist, Dr Lynch, who performed the autopsy placed the likely time of the deceased's death between 9pm on 3 October 1997 and 7am on 4 October 1997. He identified three possible causes of death; advanced coronary artery disease, the effect of drug toxicity and/or compression of the neck. Dr Lynch was however unable to elevate any one or combination of them as the final operating cause of death. At trial, the issue of causation was part of the "no case" submission made by the applicant. Mr Montgomery on behalf of the applicant at trial submitted that as there was "no case" the trial judge should direct the jury to acquit. In his ruling on the "no case" submission,[62] the trial judge noted that there were three principal issues between the parties at trial. Firstly, whether the Crown could establish beyond reasonable doubt that a person killed Margaret Maher by compression of the neck. Second, whether the person who caused the death of Margaret Maher through compression of her neck did so with intent to kill. Third, whether the Crown could establish beyond reasonable doubt that it was the applicant who caused the death of Margaret Maher.[63] His Honour observed that the "no case" submission and causation issue focussed on the first of these three issues, and primarily, the evidence of Dr Lynch. The question before the trial judge on the submission was framed in the following terms:[64]

"The authorities make it plain that the question for me is not whether on the evidence the accused man should be convicted. That is essentially an ultimate question of fact for the jury. Rather, the question which I must determine at this stage is a more refined one of law, namely, whether on the evidence so far led by the Crown, and as it stands, the accused man could lawfully be convicted. I refer to May v. O'Sullivan;[65] Zanetti v. Hill[66]".

In the end, the trial judge ruled that in exercising his role, he could not conclude on the evidence that the jury would be acting irrationally or unreasonably if they rejected the hypothesis of innocence put forward by the defence as unreasonable.[67]

54 On appeal, the applicant argued that the trial judge's directions with respect to Margaret Maher's cause of death "fell short" of what was required. It was submitted that the trial judge was obliged on the authorities[68] to direct that the compression to the deceased's neck "substantially or significantly contributed to" and was "an operating cause of" Margaret Maher's death for the jury to be satisfied that that was the actual cause of her death. Counsel also urged that directions of this kind would have "alleviated" concerns voiced by the trial defence counsel and would have "better assisted" the jury to decide the issue. It was contended that the absence of use of these terms by the trial judge "contributed to the trial's miscarriage".[69]

55 I do not accept that submission for several reasons. So that they might better comprehend the legal issues in question, the trial judge provided the jurors with a document, referred to in the transcript as a "road map". That document contained in summary form the order in which he suggested the jury should determine the issues and the principles that had to be applied. His Honour read out that document in court, noting nine issues in total. The first issue was relevant to causation. With respect to that, his Honour said:

"Firstly, you must consider whether you are satisfied beyond a reasonable doubt that the act or acts of a person caused the death of Margaret Maher in the sense that the act or acts of that person was or were a substantial cause of her death." [Emphasis added]

Not only that, the trial judge in discussing the three elements of murder in issue in this case - cause, intent and identity - referred to the evidence of the pathologist Dr Lynch:

"Dr. Lynch's evidence, as you will recall, was that there were three possible causes of death which he could not elevate beyond the status of possibilities. That was drug toxicity, the heart condition which she had, or compression of the neck. In a nutshell what the Crown says is, look, Dr. Lynch was not addressing the same question that you are addressing. He had used phrases such as the "sole cause", "the cause". The test for you is, is it the substantial cause or a substantial cause?"

"... the prosecution must prove beyond a reasonable doubt that the act or acts of some person caused the death of the deceased. As I have said, that is a real issue in this case. In order that you be satisfied beyond reasonable doubt that an act or acts of a person caused the death of the deceased, you must be satisfied beyond reasonable doubt that an act or acts of a person was a substantial cause of the death of the deceased."

The trial judge went on to inform the jurors that they need not be satisfied that the act, or acts as the case may be, was or were the only cause or the principal cause of the deceased's death. They had to be satisfied that the act or acts was or were a substantial cause.

56 It is in this way difficult to see how the trial judge's directions "fell short" on the issue of causation. The jurors must have been intensely aware of the causation principle and the relevant facts they were to apply it to. They moreover had in their possession a document to which they could refer during deliberations advising them of the issue to be decided with respect to causation. It was not necessary for the trial judge to adopt the exact wording put forward by counsel provided the principle espoused was correct in the circumstances. In any event, the words and phrases used by the trial judge were in fact very similar, as I have shown. It is unnecessary to discuss the assertion that the trial judge's directions with respect to causation effected a miscarriage of justice.

57 Ground 2 therefore fails.

58 Finally I come to the applicant's last ground, the assertion that if the matters relied upon in the other grounds listed above did not result in a miscarriage of justice, their "aggregate effect" did. However, there is no opportunity in this case for the application of the principles enunciated in R. v. Kotzmann.[70] I am satisfied that whether the applicant's appeal grounds are viewed in isolation or in combination, that no miscarriage of justice has resulted.

59 In my opinion, the application for leave to appeal should be dismissed.

60 On 16 August 2004 Peter Norris Dupas was convicted of the murder of Margaret Josephine Maher on 4 October 1997. He now seeks leave to appeal against his conviction on a number of grounds. He contends that the trial miscarried due to the admission of similar fact evidence concerning the murder and mutilation of another woman, Nicole Patterson, or alternatively because the trial judge did not direct the jury adequately as to the use which they could and could not make of that evidence. He also says that the trial miscarried because the judge did not direct the jury adequately on the question of causation. He argues that any jury properly instructed should have had a reasonable doubt about his guilt and therefore that the verdict of guilty was unsafe and unsatisfactory

The judge's ruling.

61 The Crown's case at trial was that the applicant had murdered Margaret Maher by strangulation and then mutilated her body by slicing off one of her breasts. The evidence was that her body had been found lying on the side of Cliffords Road, Somerton on 4 October 1997 at about 1.45 pm. Her pants had been pulled down and

her upper clothing had been pulled up, thus exposing her torso. Her left breast had been cut off after death and placed in her mouth. On post mortem examination, pathologist Dr Matthew Lynch found a number of injuries including lacerations to the right breast, a small laceration above the right eye, a small area of skin loss near the right eye, a small incised injury to the left wrist, and a superficial incised injury to the left middle finger. Dr Lynch also noted on the right lateral neck a lineal area of petechial haemorrhage, and on dissection a small amount of haemorrhage was found within the muscles adjacent to the thyroid cartilage. Margaret Maher's clothing was examined by a forensic scientist, Ms Taupin. Ms Taupin found that there was a cut which completely severed the centre front of the deceased's windcheater, commencing from the neckband and terminating through the hemline. The T-shirt worn beneath had also been completely severed with scissor cuts that commenced from the neckband and terminated through the hemline. Ms Taupin concluded that the most feasible scenario was that the windcheater and T-shirt were cut together in the one action and by the one implement. Features of the cuts revealed that they had been produced by a pair of sharp smooth bladed scissor with medium to long blades.

62 The evidence concerning Nicole Patterson was that her body had been found in her home at 21 Harper Street, Northcote, on 19 April 1999, naked from the waist down. Her skirt had been removed and was found in an adjacent room. Her upper clothing and her skirt had been cut. The cause of death was determined to be multiple stab injuries to the chest. A total of 27 stab wounds were located on her chest and back. The stab wounds included damage to the lungs and heart with fatal loss of blood. Both her breasts had been cut off and were missing. The forensic pathologist, Dr Ranson, found that part of Nicole Patterson's left breast had been removed after death and that there was tissue of the breast present in her mouth. He examined photographs of the excised breast and the residual breast tissue in the trunk of the body and noted a number of "dog-eared tags" which gave the edges of the excised portion of the breast a sawtooth appearance. That feature was said to be characteristic of the excision of skin by means of a sawing motion with a sharp object such as a knife. The forensic scientist, Ms Taupin, also examined Nicole Patterson's clothing. She found a large number of stab-type cuts to the cardigan and the back of the T-shirt worn beneath. Ms Patterson's T-shirt had been cut down the centre front, commencing from the neckline and extending to above the hemline. The severance was described as consisting of scissor cuts with a slight extension of tearing towards the hemline. Beneath the T-shirt was a singlet. Ms Taupin observed that the singlet had also been severed, commencing from the neckline and extending down to above the hemline. The severance consisted of scissor cuts with a slight extension of tearing towards the hemline. There was a cut in the right shoulder strap of the brassiere which had detached the strap from the front of the garment. Nicole Patterson's skirt had been severed commencing from the waistband and extending down the skirt almost to the edge of the hemline. The severance consisted of scissor cuts which extended to a tear towards the lower part of the skirt.

63 The Crown contended that the evidence concerning Nicole Patterson was admissible as similar fact evidence pursuant to s.398A of the Crimes Act 1958. It argued that the similarities between her death and mutilation and the death and mutilation of Margaret Maher were so striking as to lead ineluctably to the inference that the applicant murdered and mutilated Margaret Maher. Alternatively, the Crown submitted that the evidence that the applicant mutilated Nicole Patterson after death was admissible on the more limited basis that similarities between the mutilation of both women were so striking as to yield the inference that it was the applicant who mutilated both women and hence the applicant who murdered Margaret Maher.

64 The judge rejected the first of those contentions but accepted the second. In his Honour's opinion, the first was tantamount to saying that the appellant had a propensity to murder and mutilate women and therefore that it was likely it was he who had murdered and mutilated Margaret Maher. His Honour considered that it was impermissible to reason in that fashion because the two women were killed in different ways[71] and because there not a great deal of similarity between the circumstances in which each was killed. Nicole Patterson was killed and left in her home after the applicant responded to an advertisement that Nicole Patterson had placed in a local newspaper in respect of her services as a psychotherapist. Margaret Maher was a prostitute working the Hume Highway. Her body was left at the side of the roadway.

65 The judge accepted, however, that the similarity between the way in which each woman had been mutilated was so striking as to enable the jury to infer that the same man had mutilated each woman. It followed in his Honour's opinion that it would be open to infer that the applicant was both violently disposed towards Margaret Maher and with her at or about the time of her death. It followed in turn that the evidence concerning Nicole Patterson was circumstantial evidence [72] which, in conjunction with proof of other facts,[73] was capable of supporting the conclusion that the appellant killed Margaret Maher. As his Honour put it:

"As I have stated, the primary focus of the Crown's submission was on the excision of a breast (of Margaret Maher) or the breasts (of Nicole Patterson) after death. Based on the evidence of Ms Mouszos and Dr Ranson, the Crown contended that such a feature is rare if not unique. Further the fact that the two instance of breast excision after death occurred with 18 months of each other, each in the northern suburbs of Melbourne was particularly significant. In addition, the Crown also relied on the cutting of the front of the clothing of each deceased woman by scissors and on the distinctive features which attended the cutting of that clothing which I have already referred to...

...

[Defence counsel]...pointed to a number of differences in the cases of the two deceased women. First he pointed to differences in the circumstances leading up to the deaths. For example, the evidence is that the accused man met Nicole Patterson when she advertised her services as a psychotherapist. The Crown case is that, pursuant to a pre-arranged appointment, he visited her at her home and murdered her there. By contrast, as I have stated, Margaret Maher was a prostitute. She was last seen at 12:15 a.m. departing the Safeway store and heading for the Hume Highway, where she normally worked. Secondly, Nicole Patterson was murdered and left in her own home. Margaret Maher's body was apparently dumped by the side of a roadway in Somerton. Thirdly, the means and causes of death in each case were quite distinct and different. As I stated, Nicole Patterson was murdered by multiple stab wounds. The cause of death of Margaret Maher is contentious. If the Crown establishes beyond reasonable doubt that she was murdered, then she was strangle by pressure being applied to the neck. Fourthly, after the death of each of the women, their bodies were quite differently arranged. Nicole Patterson was lying face up, with her right foot over her left ankle and her hands outspread. Margaret Maher was left lying on her side.

...In this instance, the Crown seeks to establish one fact which is in issue, namely, the identity of the person who excised the left breast of Margaret Maher after her decease. In determining that fact the differences to which I have already referred in the two cases are of limited relevance. The fact which is of central relevance is the excision of the breast or breasts. It is that factor which is of particular probative force, given its rarity, and given its inherently striking and distinctive character."[74]

Ground 1 A - Striking similarity.

66 The applicant's principal contention in support of his application for leave to appeal is that the judge erred in holding that differences between the circumstances in which each woman died were "of limited relevance". Counsel for the applicant submitted that it was necessary to look at the mutilation of each woman in context and that when viewed in context there were significant differences between them. Counsel argued that the extent of the differences was such that it would plainly not be "an affront to common sense" to exclude the evidence concerning the mutilation of Nicole Patterson.

67 I do not accept the argument. The "affront to common sense" test owes its origins in this country to its adoption by Gibbs, A.C.J. in Markby v The Queen.[75]. His Honour took it from the speech of Lord Hailsham in Reg v Boardman [76] and in turn Lord Hailsham adopted it from the speech of Lord Simon in Reg. v Kilbourne[77]. In Reg v Kilbourne evidence of the accused's buggery of one young boy was held admissible to prove that he had buggered others. Lord Simon reasoned that provided the jury were able to "discern such an underlying unity between the offences as to make coincidence an affront to common sense," the evidence of one young boy was capable of corroborating evidence of another as to the manner of his assault. Despite significant differences between the circumstances surrounding each offence, the so-called "underlying unity" was found to inhere in the fact that the accused was a homosexual "whose proclivities in that regard took a particular form", namely, that in each case "he had got [the boy] on the floor face downwards, had lain on top of [him], moving up and down"[78]. Similar reasoning informs in the judgment of Brennan, C.J. in B.R.S v The Queen. [79]

68 In the same way here, and despite such differences as there may have been between the circumstances surrounding the mutilations of Nicole Patterson and Margaret Maher, I consider that the judge was right to conclude that there was underlying unity in the extraordinary nature of the method and incidents of the mutilation of each woman. In terms of the Markby analysis, that was enough to make it an affront to common sense to reject the evidence of the mutilation of Nicole Patterson.

69 Counsel for the applicant argued that it was logically artificial to confine the comparison to the methods and incidents of the two excisions. They submitted that it was the syllogistic equivalent of putting to one side all of the things which make two events dissimilar in order to support a conclusion that because all of the differences have been put to one side the two events are similar. I accept that submission up to a point. As will be seen, there was some evidence that Margaret Maher and Nicole Patterson were the only known cases of post-homicide breast excision. But generally speaking the fact that there has never before been an instance of a post-homicide phenomenon does not necessarily imply that an assessment of the similarity of the first two instances of the phenomenon to occur can be undertaken without regard to the methods and incidents of the homicides. In principle at least, significant differences between the homicides may result in a conclusion that there are significant differences between the post-homicide phenomena; despite the use of near identical techniques.

70 That said, however, overly scrupulous concentration on logic in this area of the law runs the risk of losing sight of the wood for the trees. Similar fact evidence is as much an art as a science and in most cases its application calls for a considerable amount of common sense and ordinary human experience. For example, the act of burying a dead baby in the back garden of a house may be viewed as strikingly similar to the act of burying a dead baby in the back garden of another house,[80] but dissimilar to the act of burying a dead baby in a cemetery. Contrastingly, the fact of a woman's husband dying from the ingestion of rat poison may appear strikingly similar to the fact that other men to whom she was married died from the same cause,[81] even if the former died at home and the latter while out on a picnic. At one level of analysis there is no logical reason why there should be a difference between those cases. But when analysed at the level of common sense and ordinary human experience it is obvious that the difference is due to the acts or events which are the subject of comparison. In the first case, the acts or events - burying the dead - are commonplace apart from the circumstances in which they occur. In the second case, the acts or events - dying of rat poison - are inherently so extraordinary that they appear strikingly similar regardless of the circumstances or at least across of a broad range of circumstances.

71 Evidently, the judge considered that the post-mortem mutilations of Nicole Patterson and Margaret Maher fell into the latter class of case. I agree. It strikes me that non-medical post-mortem excision of a woman's breast is so extraordinary that two instances of the phenomenon are likely to present as strikingly similar in almost any circumstances. Furthermore, that impression is supported by evidence presented to the judge on the voire dire. As the judge recorded in his ruling, review of the Australian Institute of Criminology data base of all 2821 homicides in Australia between 1 July 1989 and 30 July 1998 and all 3723 homicides in Australia between 1 July 1989 and 30 June 2000 showed that the case of Nicole Patterson was the only one involving the removal of a breast. There was also evidence given by Dr Ranson that in his experience in Victoria since 1998 and in the United Kingdom before that, he had never seen breast removal as part of a homicide case except in the cases of Patterson and Maher. As the judge observed, the only known instance of breast removal occurred in the fundamentally different circumstances of a mortuary burglary and the defilement of cadavers within it .

72 It is also necessary to bear in mind that similar fact or propensity evidence is not admissible simply or only because of striking similarity or only if there is striking similarity between every aspect of the offence charged and every aspect of the uncharged act of which evidence is sought to be adduced.[82] Depending upon the context, which is to say all the circumstances of the case, uncharged conduct may need be similar in only one or some respects to make it compellingly probative of an accused's involvement in the offence alleged. DPP v P[83] provides a useful illustration. Evidence that a dominating father had practised incest on one daughter was admissible in proof of counts of incest committed by him on another despite that the methods of domination in each case were different.

73 It is true that if the identity of an offender is in issue similar fact evidence will usually lack the requisite degree of probative force unless it possesses the character of striking similarity or underlying unity or something of that nature. But, as has already been observed, the context may be such that striking similarity as between only one or some aspect of the offence charged and the act of which evidence is sought to be given may be sufficient. In the end, as Gibbs, C.J. noted in Perry v The Queen,[84] the question of whether similar fact evidence is admissible is one of degree and therefore to some extent discretionary (in the sense that it involves a value judgment).

74 The facts and process of reasoning in Pfennig v The Queen [85] illustrate the point. Pfennig was charged with the murder of a ten year old boy, Michael Black, at or near Murray Bridge in South Australia on or about 18 January 1989. The child had last been seen on that day at Sturt Reserve on the Murray River. His body was never found. The prosecution case was based on circumstantial evidence including similar fact evidence that Pfennig had abducted and raped another young boy, H, about a year later at Port Noarlunga. The trial judge admitted the similar fact evidence on the basis that it revealed Pfennig's propensity to abduct a young boy for sexual purposes and by means which were likely to have been adopted in the case in question. The judge instructed the jury that the similar fact evidence could not be used to resolve doubts on the question of whether Michael Black had been abducted but that if the jury were satisfied by other evidence that Michael Black had been abducted and murdered, they could then take account of the similar fact evidence in deciding whether Pfennig had committed the abduction and murder. Ultimately, the High Court upheld that ruling. As Mason, C.J. and Deane and Dawson, JJ. put it, the evidence of what Pfennig had done on the later occasion demonstrated not only criminal propensity and criminality but also established Pfennig's modus operandi in abducting a young boy for sexual purposes. The evidence of what Pfennig had done on the later occasion tied in with other evidence that Pfennig had been at Murray Bridge at or about the time in question and had sought to inveigle other children to accompany him, and so showed that those steps were taken to give effect to that propensity. It was therefore logical to assume that Pfennig had abducted Michael Black by means of similar steps and with the same purpose. The value judgment made was that once the similar fact evidence was taken into account with the other evidence there was no reasonable hypothesis which explained Michael Black's death other than that it was due to Pfennig.

75 The value judgment made in this case was not dissimilar. The evidence concerning Nicole Patterson demonstrated not only propensity and criminality but also the appellant's extraordinary modus operandi of hacking off a woman's breasts after he had killed her. Apart from the evidence concerning Nicole Patterson, the Crown presented a powerful circumstantial case that the applicant had been present at or about the time that Margaret Maher died at the scene where her body was found. It included that the applicant worked and shopped in the same area as Margaret Maher; that he shopped at Bi-Lo and that a Bi-Lo shopping docket was found at the crime scene attached to Margaret Maher's cheek; that Margaret Maher's death occurred between 9.00 pm on 3 October 1997 and 7.00 am on 4 October 1997; that the applicant started work on 4 October 1997 at 6.48 am; and that a glove was found by police at the crime scene, some 6.2 metres to the south of Margaret Maher's body, from which was extracted DNA 450,000 times more likely to have come from the applicant and one other unknown person than from any two other unknown persons drawn from the Victorian population. It was therefore logical to assume that applicant had been with Margaret Maher at the time of her death and had mutilated her in the same way as he had mutilated Nicole Patterson.

76 In the result, and despite such differences as there may have been between the circumstances surrounding the death of each woman, I consider that the judge was right to admit the evidence concerning the applicant's mutilation of Nicole Patterson. Judged in the context of the evidence which put the applicant at the crime scene at or about the time that Margaret Maher's breast was cut off, and assessed in accordance with the sort of reasoning which was countenanced in Pfennig, the evidence concerning Nicole Patterson was highly probative that the appellant cut off Margaret Maher's breast and therefore that he killed her.

Prejudice.

77 Counsel for the applicant argued in the alternative that even if the evidence concerning Nicole Patterson were relevant and admissible it was so prejudicial to the applicant that it should have been excluded.

78 I disagree. As was explained in R v Best [86] and R v Tektonopoulos,[87] s.398A of the Crimes Act 1958 abrogated the common law test of admissibility laid down by the High Court in Hoch v The Queen [88] and replaced it with the test of whether it is just to admit the evidence despite its prejudicial effect. As was also explained in Best and Tektonopoulos that is close to the test customarily applied in Australia before Hoch (and the same as the test which is applied in England) and means in effect that similar fact evidence may be admitted despite its prejudicial effect if it has strong and cogent probative force beyond proof of disposition. The judge considered the question of prejudice in accordance with that test and found that the evidence of Nicole Patterson's mutilation was of such high probative value that, in the circumstances, it was just to admit it. As his Honour put it:

" ...The evidence relating to the excision of the breast or breasts in each case, and the evidence relating to the rarity of that phenomenon, is of particularly high probative value in relation to the issue as to who excised the left breast of Margaret Maher after she died. That evidence is given additional probative force by the scissor cuts to the clothing which I have described. The evidence goes well beyond showing that the accused man had a 'disposition' to mutilate the deceased bodies of women in the manner described. Rather the evidence shows a specific mark or signature left by the accused man in the case of Nicole Patterson which is of such unusual or rare occurrence as to make it a striking and highly probative fact in establishing that the same person also excised the left breast of Margaret Maher after she died. The evidence ... is, on my estimate, of strong and high probative force, notwithstanding the submission of [defence counsel] relating to the differences which can be identified between the two cases..."

In my opinion that analysis is correct.

79 The applicant complains that a substantial part of the evidence admitted as similar fact evidence showed that the applicant murdered Nicole Patterson as well as mutilating her body and, despite directions given by the judge that the jury were not to draw any conclusions from the fact of the murder, the applicant says that the jury would have done so. In the applicant's submission it was inevitable that the jury would have reasoned that, because the applicant murdered Nicole Patterson, he also murdered Margaret Maher, and the applicant contends that the prejudice thereby caused him was compounded by the notoriety he had acquired as a result of the press coverage of him and his trial for the murder of Nicole Patterson. In the applicant's submission, the prejudice was so great as to outweigh the probative value of the similar fact evidence or in any event to make it unjust that it be admitted.

80 I do not accept that submission either. Clearly enough, the evidence of the excision of Nicole Patterson's breasts was inextricably intertwined with evidence relating to the circumstances in which Nicole Patterson was murdered. Just as clearly, the jury had to consider it, as his Honour held. The more alike the circumstances the more likely that the applicant was responsible on both occasions, and to some extent vice versa. The fact that the applicant was shown to have hacked off the breasts of Nicole Patterson shortly after her murder made it very probable that he had also hacked off Margaret Maher's breast shortly after she died. No doubt the evidence that the applicant had murdered Nicole Patterson had the potential to cause the applicant prejudice. But the judge was alive to the difficulty. His Honour considered that appropriate directions would go a sufficient way to ensuring a fair trial as to make it just to admit the evidence, and I agree with that assessment.

81 The direction which the judge gave to the jury was in substance that they were not to use the evidence of the murder of Nicole Patterson in order to conclude that Margaret Maher had been murdered. They had first to be satisfied on the basis of the other evidence that she had been murdered and only then could use the evidence of the mutilation of Nicole Patterson as a basis for concluding that the applicant had mutilated Margaret Maher and thus was the murderer. It was therefore not unlike the direction given in Pfennig v The Queen [89] that the jury were not to use the Murray Bridge evidence to resolve doubts on the question of whether Michael Black had been abducted. It was not suggested in that case that such a direction would be inadequate to guard against the risk of prejudice. Perhaps there was not the same degree of press coverage in Pfennig as in this case, and I accept that press coverage has the potential to cause serious prejudice. But that is not a basis to exclude similar fact evidence. The law can only do so much to counter the effect of pre-trial publicity prejudicial to an accused. A trial judge may make orders and give directions as necessary to protect the integrity of the criminal trial. But such protective mechanisms must be kept within ordinary procedural constraints and cannot guarantee perfect impartiality. Of necessity the courts must rely on the integrity and sense of duty of the jurors and, although the experience of the courts is that the reliance is not misplaced, our system of protecting jurors from external influences such as the press is not perfect. Despite those shortcomings, a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial. [90]

The Christie discretion.

82 Counsel for the applicant next submitted that even if it were open to the judge to admit the similar fact evidence under s.398A of the Crimes Act, his Honour had erred in failing to consider the possibility of exclusion of the evidence in the exercise of the Christie discretion.[91] They argued that inasmuch s.398A has been held to prescribe a rule that must be satisfied before a particular class of evidence will be treated as admissible - as opposed to a discretion to exclude evidence that is admissible - the section left room for the exercise of the Christie discretion, [92] and that the judge was wrong to fail to consider it. Further, in their submission, this court ought now consider the question itself and conclude that it was appropriate to exclude the evidence in the exercise of the discretion.

83 I do not think that the judge made any error of the kind alleged. In the circumstances of this case there was no room for an exercise of the Christie discretion. Under the rule prescribed by s.398A, propensity evidence is not admissible unless it is just to admit it and, as has been seen, it is not just to admit it unless it has sufficient strong and cogent probative force beyond proof of disposition to outweigh its prejudicial effect. It follows in this case that the criteria for exclusion pursuant to the Christie discretion were the mirror image of the criteria for admission pursuant to s.398A and therefore added nothing. The point is made in the Australian Law Reform Commission's recent discussion paper on the review of the Uniform Evidence Acts, as follows:

"Bearing in mind the language of ...s.398A of the Crimes Act 1958 (Vic), if evidence passes the admissibility tests contained in [that provision], it is difficult to envisage a situation in which there would be scope for the common law Christie discretion (although left open by the authorities) ...If evidence fails to satisfy the admissibility tests where tendered for propensity, tendency or coincidence purposes, but is tendered and admissible for other purposes, the Christie discretion, in common law jurisdictions...will have operation. Again, however, it is difficult to conceive of a situation where the result would differ depending on which regime is applied." [93]

Similar fact directions.

84 Counsel for the appellant further contended that the judge erred in failing to direct the jury on differences between the deaths and mutilations of Nicole Patterson and Margaret Maher. They complained that the judge had referred three times to similarities between the cutting off of each woman's breasts or breast and the cutting off of each woman's clothing but only once to dissimilarities associated with the post mortem treatment of Nicole Patterson and Margaret Maher. Furthermore, it was said, the judge had even then only referred to the "dissimilarities relating to the excisions of the breasts or breast and scissor cuts" and had done so only as an aside as part of an instruction to heed the relevant similarities and to assess critically the evidence relating to the rarity of the phenomenon of post-homicidal breast removal, And, it was said, his Honour had even prefaced that direction with a statement that he was summarising how the applicant put his case. Thus it was contended that the judge had deprived the direction of the full weight of his authority and left the jury without proper instruction on probably the most important issue at trial.

85 That is not how I read the relevant parts of the judge's charge. I see them as follows:

1. In the judge's directions to the jury on matters of law (which were given early in the charge) the judge explained in detail the way in which the evidence concerning Nicole Patterson could and could not be used. At that point his Honour reminded the jury that the evidence concerning Nicole Patterson could only be used for the purpose of establishing that it was the applicant who cut off Margaret Maher's breast after she died on 4 October 1997 and that it could only be used in that way if the jury were satisfied beyond reasonable doubt that the applicant cut off Nicole Patterson's breasts and that "...the removal of the breast of Margaret Maher was so strikingly similar to the removal of the breasts of Nicole Patterson and was so unique that you are satisfied beyond reasonable doubt that they were carried out by one person".

2. His Honour next explained the path of reasoning which it was said might be followed in order to conclude that the applicant cut off Margaret Morgan's breast and, as part of that explanation, warned the jury that they could not use such a process of reasoning unless satisfied beyond reasonable doubt that the same person had cut off the breasts or breast of both women, and that the removal of breasts or breast and cutting of clothing were so strikingly similar and unique as to make it an affront to common sense not to conclude that the same culprit was responsible in each case.

3. Thereafter his Honour emphasised the point again by telling the jury that it was not sufficient to think that the two were "pretty similar" and therefore that the jury had to look carefully at the similarities and differences. As his Honour put it:

"Now, when you look at that step, that critical step in the Crown's case, you carefully and critically scrutinise and examine the similarities and dissimilarities relating to the excisions of the breasts or breast and the scissor cuts. Equally, you carefully and critically assess the evidence of Ms Mouzos and Dr Ranson as to the rarity of the phenomenon of the removal of a breast after a homicide. In essence, the Crown must persuade you, as I have stated, beyond reasonable doubt that it would be an affront to your commonsense to suggest that two different people were responsible for the removal of the breast or breasts of the two women and the cutting of their clothing. That is as high as a test goes. [94]

4. Thereafter, following a further warning against propensity reasoning (namely, that because the applicant murdered Nicole Patterson he must also have killed Margaret Maher), the judge turned to the identification of the issues arising out of the way in which each side had put its case and in that context the judge identified again that the issue was one of striking similarity:

"On the other hand, on behalf of the accused, [defence counsel] says, 'Look, there is only one similarity, that is the fact of the removal [of] a breast or breasts, but from then on the cases are markedly dissimilar' and he refers to factors such as one breast was removed in one case, two in the other; in one case Margaret Maher's breast was left in her mouth: in Nicole Patterson's case they were missing and have never been found. He refers to matters such as the stab wounds to Nicole Patterson. He says, 'Look, these cases are vastly different. You can't say they are strikingly similar.'.

Similarly, he refers to the cuts to the clothing. He says, "Well, Margaret Maher, the scissor cuts went right through the hem. With Nicole Patterson that did not occur. Nicole Patterson's skirt was cut. Margaret Maher's leggings weren't: They are matters such as that and he says that are not strikingly similar circumstances.

In relation to uniqueness, he says, 'Well, there is this phenomenon of copycat crime and ideas do travel internationally'.

5. Towards the end of the charge, in the summary of the evidence, the judge returned again to the difference between the mutilation of Nicole Patterson and the mutilation of Margaret Maher.

6. Finally, at the end of the charge, when summarising counsel's arguments, his Honour returned yet again to the question of differences, thereby reminding the jury once more of the need to consider the differences when determining whether there was striking similarity.

86 As well as putting the full weight of his authority behind those directions, the judge specifically directed the jury that:

"The evidence of the death of Nicole Patterson and the evidence relating to the excision of her breasts may not, and I emphasis the word 'not', be used by you [the jury] to conclude that the accused man is the type of person who would have committed the offence for which he is on trial, or that he is of a bad character or general disposition or propensity to commit such an offence..."

"...[you] must also be satisfied that the removal of the breast of Margaret Maher was so strikingly similar to the removal of the breasts of Nicole Patterson and was so unique that you [the jury] are satisfied beyond reasonable doubt that they were carried out by the one person."

"...[ in order to make that determination it was necessary for] you to carefully and critically scrutinise and examine the similarities and dissimilarities relating to the excisions of the breasts or breast and scissor cuts. Equally, you must carefully and critically assess the evidence of Ms Mouzos and Dr Ranson as to the rarity of the phenomenon of the removal of a breast after a homicide."

87 So far therefore from leaving the jury without proper instructions on the use of the similar fact evidence, it seems to me that the judge was assiduous in ensuring that the jury understood that the similar fact evidence was to be disregarded unless they were satisfied that there was striking similarity and that, in considering whether they were so satisfied, the jury had to bear in mind the differences identified by defence counsel.

88 I need hardly add that it was not for the judge to tell the jury which similarities and differences they should regard as important. That was a question for them as the tribunal of fact. The most that the judge could properly do, in addition to explaining the need to scrutinise the evidence for similarities and differences, and the legal principles which the jury were to apply in determining whether the two mutilations were strikingly similar, was to identify for the jury's consideration the similarities and differences upon which each party relied. [95] As it appears to me, his Honour did just that.

Ground 2 - Causation.

89 Ground 2 of appeal centres on the issue of causation said to have been at the forefront of defence counsel's final address to the jury. The Crown's case at trial was that subtle compression applied to the deceased's neck was "a substantial cause of her death". The judge thus directed the jury that they could not convict unless satisfied that the subtle compression applied to the deceased's neck was "a substantial cause of her death". In the applicant's submission, however, it was necessary for the judge to go further and direct the jury that the compression of the deceased's neck "substantially or significantly contributed to and was an operating cause of her death" and that the judge was in error in not explaining the issue in terms of whether the compression of the neck "significantly contributed" to or "accelerated" the deceased's death. Counsel for the applicant contended that the judge's failure to use terms of that kind created the distinct possibility of the jury being left with the false impression that the evidence of the examining pathologist (Dr Lynch) was sufficient of itself to establish that compression of the deceased's neck amounted to a substantial cause.

90 I do not consider that there is anything in that point either:

1. Early in the charge, when explaining the elements of the offence of murder, the judge directed the jury that:

"The first element which, as you will have well appreciated, is well and truly in issue is this: first, the prosecution must prove beyond reasonable doubt that the act or acts of some person caused the death of the deceased. As I have said, that is a real issue in this case. In order that you be satisfied beyond reasonable doubt that the act or acts of a person caused the death of the deceased, you must be satisfied beyond reasonable doubt that an act or act[s] of a person was a substantial cause of the death of the deceased.

In this case, of course, the Crown contends that you should be satisfied beyond reasonable doubt that there was compression to the neck of Margaret Maher before she died, and that that was a cause of her death. Taking that as the cause argued for by the prosecution as a first step in your reasoning, you must be satisfied beyond reasonable doubt that compression by a person of the neck of the deceased was a substantial cause of her death.

In relation to that element, you do not have to be satisfied that that act was the only cause of her death, or indeed the principal cause of her death, but you must be satisfied that it was a substantial cause of her death. That is the first element, what [defence counsel], right at the beginning of the case, really said is the first base, and he says you cannot get there. I will return to that, but that is your first element and that is well and truly in dispute..."

A little later, in his explanation to the jury of the elements of the offence, the judge said:

"The fifth element, and this of course has loomed large and [is something] which I will return to, requires that the prosecution prove beyond reasonable doubt that it was the accused man who killed Margaret Maher. That is also an issue in this case.

I will take you through it if I might, the three primary elements which have been in dispute in this case to pull all that together at this stage.

The prosecution must establish beyond reasonable doubt, firstly, that the act or acts of a person were a substantial cause of the death of Margaret Maher. If they cannot prove that beyond reasonable doubt, that is the end of the case.

Secondly, the prosecution, if they do prove that beyond reasonable doubt, the first step, must prove beyond reasonable doubt that the person who so caused the death of Margaret Maher did so with the intention to kill her or to cause her really serious injury. If you have reasonable doubt on that, having got to what you can call stage two, then your verdict will be one of not guilty of murder. But if you have got to those two stages you then move to the third stage, the third element which is alive: you have to be satisfied beyond reasonable doubt, if you have reached those first two stages, that it was the accused man who so caused the death of Margaret Maher. If we put a label on that, that is the identity issue..."

2. Having completed his explanation of the elements, the judge turned next to the issues to which they gave rise. His Honour said:

"Now, the first issue, has the Crown established beyond reasonable doubt that the act or acts of a person was or were a substantial cause of the death of Margaret Maher? As I said to you, the Crown says that it has established beyond reasonable doubt that a person compressed the neck of Margaret Maher and that that was a substantial cause of her death.

The Crown says, well, the starting point for that is the evidence of Dr Lynch, and I will be summarising that for you this afternoon. Dr Lynch's evidence, as you will recall, was that there were three possible causes of death which he could not elevate beyond the status of possibilities. That was drug toxicity, the heart condition which she had, or compression of the neck. In a nutshell what the Crown say is look, Dr Lynch was not addressing the same question that you are addressing. He had used phrases such as 'the sole cause', 'the cause'. The test for you is, is it the substantial cause or a substantial cause?

The second point which the prosecution make about Dr Lynch's evidence is that he did not have before him all the facts that you do because he performed a different role to what you do. The prosecution say, well, you can draw inferences in the way I have described to you as to the dumping of the body and the like which were not within the realm of Dr Lynch.

The prosecution then go on to place before you a number of facts from which they say you should draw the inferences, evidence such as the eye witness evidence as to her general state of health...evidence as to the sightings of Ms Maher on the night of 3 October...evidence about the circumstances in which her body was found, the condition it was in, the injuries and evidence about the mutilation...

Now, in a nutshell, what [defence counsel] on behalf of the accused man says is, well, that is just not so. Dr Lynch knew all the facts that you know of. He visited the crime scene, so you will listen to the evidence as to what he saw at the crime scene. He did the post-mortem and yet he could not conclude that neck compression was any more than one of three possible causes of death.

It will be for you what you make of Dr Lynch's evidence. You will see there the competing ways the parties address that and what he said. So you will have to recall what he said. I will assist you by paraphrasing his evidence this afternoon...."

3. Next, after identifying each of the issues, the judge suggested a way in which the jury might approach their consideration of the issues without slipping into impermissible propensity reasoning, as follows:

"...may I suggest that you approach your deliberations in this case by taking the following steps.

Firstly, you must consider whether you are satisfied beyond reasonable doubt that the act or acts of a person caused the death of Margaret Maher in the sense that the act or acts of that person was or were a substantial cause of her death."

4. The third stage of the judge's charge was comprised of a detailed summary of the evidence. It included close attention to Dr Lynch's testimony and in particular his concession that he could not say which of the three possible causes of death was the cause of death.

5. In the last stage of the charge, the judge gave the jury the benefit of a thorough summary of counsel's arguments. It included a recitation of the prosecutor's argument that the jury should be satisfied on the basis of all of the evidence that neck pressure was a substantial cause of death and as part of that the following:

"[The prosecutor] said it is clear that one and the same person inflicted injuries on [the deceased], including the injury to the neck, dumped her by the side of the road. She said it is the injury to the neck that caused death.

She referred to the principle that the Crown has to prove beyond reasonable doubt that an act or acts of a person was a substantial cause of death. It does not have to be the principal cause of death. Those are matters that Dr. Lynch addressed himself to, therefore his role was different to yours. You determine whether the act of a person was a substantial cause of death. Thus, even though [the deceased] was a drug addict and so on, she did not die until someone put pressure on her neck and inflicted those other injuries upon her. When she dies it is the same person who duped her and so forth. It is one and the same person...

...

[The prosecutor] said while Dr Lynch only remained by postulating possibilities, you can go further because you can draw inferences from the surrounding facts which have been gone through from the evidence...

6. Finally, the judge outlined defence counsel's response to that part of the prosecution argument, as follows:

"[Defence counsel] started by saying ...there is no homicide in the case of Margaret Maher. It has not been proven to you.

He said the prosecution called Dr. Lynch, an experienced pathologist. Dr. Lynch says there were three possible causes of death. He does not say that any of those three was a significant contributor to death. He cannot and does not go that far.

[Defence counsel] said there is nothing in what Dr. Lynch looks at that you as the jury do not see in the evidence. He reminded you that Dr. Lynch attended the crime scene. He observed the injuries on the body at the crime scene. He observed the removal of the breast and that it was placed in the mouth. He said the rest of his observations are of what he saw at the post-mortem.

[Defence counsel] said that Dr Lynch knows all the things that the Crown say should lead you as the jury to conclude that there is a murder. Dr Lynch says he takes into account in deciding the cause of death all the surrounding circumstances, but in doing that he cannot elevate drug toxicity, coronary artery disease or neck compression above the status of a possible cause of death. That is evidence on which you should act and thus there is only one conclusion: namely, you cannot be satisfied beyond reasonable doubt that there is a homicide..."

91 In my opinion those parts of the charge were more than adequate to make clear to the jury that the question was whether the neck compression was a substantial cause of the deceased's death, even if not the sole or principal cause, and

drug addiction and so on, she did not die until someone put pressure on her neck and inflicted those other injuries upon her." The notion that the jury would or may have been led to believe the Dr Lynch's evidence was sufficient of itself is untenable. The judge told the jury repeatedly that the issue was whether, despite the equivocal nature of Dr Lynch's testimony, the other evidence on which the Crown relied was sufficient to persuade them beyond reasonable doubt that neck pressure was a substantial cause of death. I reject the contention that it was necessary for the judge to use terms such as "significantly contributed to death" or "accelerated death". The judge was free and bound to use whatever words were appropriate to the facts of the case to convey to the jury the issue to be decided. In my opinion, his Honour's instruction that the jury had to be satisfied that despite the deceased's other ailments she did not die until someone applied the neck pressure, was calculated to do just that .

Ground 4 - Aggregate of Errors.

92 The fourth ground of appeal is that the aggregate of errors alleged in Grounds 1A, 1B and 2 resulted in a miscarriage of justice.[96] It will be appreciated from what I have already said that I do not accept that there were such errors.

Conclusion.

93 It follows for the reasons which I have given that I would refuse the application.

94 I have had the advantage in this application of reading, in draft, the separate

reasons for judgment of the Chief Justice and of Nettle J.A. I do not differ in any material respect from either. I add that which follows only because this is an application with special features following a trial with special difficulties; and a third perspective may be helpful.

95 To a community seeking justice following the commission of an horrendous crime, the conviction of someone for that crime will generally be a source of satisfaction. That satisfaction might not be greatly affected by concern that, in their desire to bring the perpetrator to justice, the investigative techniques adopted by the police may perhaps have been faulty. Nor might the public be keenly appreciative of the truth that a mistaken guilty verdict is not only a grave injustice to an innocent person, but most often also results in the real perpetrator escaping any punishment. But no civilised society could live happily for long with a conviction which was based upon no surer foundation than the proposition that, the accused having committed crimes in the past, even crimes of a particular kind, he or she was likely to have committed the similar crime for which he or she was most recently tried. Experience and the application of commonsense both point to the conclusion that an inference of present guilt, such as to satisfy the required standard of proof (which, of course, is beyond reasonable doubt) cannot generally be drawn on the basis of a past criminal record. It is not simply that knowledge of the criminal record might so prejudice the mind of the tribunal of fact that speculation would replace the process of logical deduction without which inferences cannot properly be drawn. It is also that the presumption of innocence would lose a significant portion of its content. Moreover, a past record is not only a very unreliable indicator of later behaviour, but if it were available as evidence, the prosecuting authorities might be tempted to put it to unjust use.

96 On the other hand, a particular crime might be committed in such a strikingly similar way to another that the signature of a particular perpetrator can readily be seen in both. It would in those circumstances defy commonsense to remove from a court's consideration of the accused's guilt on a charge relating to one of those crimes a comparison between that crime and the other, similar, offence of which the accused had already been found guilty.

97 Even so, the admission of "similar fact" or "propensity" or "tendency" evidence[97] is fraught with the danger that it will result in injustice. Every trial judge, faced with the necessity to decide whether, and if so in what circumstances, propensity evidence should be adduced, has the grave responsibility of ensuring that its prejudicial effect is not, and will not become, greater than its probative value. On occasions, the imbalance will be such that the decision is relatively easy. On others, the opposite will be true. In the latter circumstances, the correctness of the decision to admit or not to admit may depend on the means open to the judge to minimise or eliminate the risk of injustice, and on his or her success in putting them into effect. Also important may be the relationship between those aspects of the case to which the propensity evidence directly relates and those to which it has no relevance save for its tendency prejudicially to infect the jury's consideration of them.

98 This case provides an unusually powerful illustration of these points. The applicant was tried for the murder, committed on 4 October 1997, of a prostitute, Ms Margaret Maher. After her death, her body had been horribly mutilated. As the Crown initially submitted, the propensity evidence admissible at the trial extended not merely to evidence of the applicant's mutilation on 19 April 1999 (some 18 months after the death of Ms Maher) of the dead body of his treating psychologist, a woman named Nicole Patterson, but also of his infliction on her of the multiple stab wounds from which she died. This evidence was prejudicial in the extreme. It was admitted nevertheless, but only as tending to prove that the man who mutilated the body of Ms Patterson was also the man who mutilated the body of Ms Maher - and that that man was the applicant. It was not admitted to prove that the applicant murdered Ms Maher. It is with this distinction that this application is principally concerned. The measures conceived by the trial judge, Kaye J, to ensure that the distinction was preserved, and his success in the implementation of those measures, together justify the hope that this case will provide useful guidance for trial judges in the future.

99 The relevant facts are comprehensively set out in the judgment of the Chief Justice, and I do not need to repeat them. For my purposes it is only necessary to note that, at trial, the Crown case was that Ms Maher was murdered, and that one person, the applicant, was her killer. Three issues were hotly contested, although if the first was resolved in the negative the remaining two would disappear; and if the second was likewise resolved, the last would similarly fall away. The first contested issue was whether a person caused the death of Ms Maher. If the jury accepted that the prosecution case on this point had been made good to their satisfaction beyond reasonable doubt, then the second issue had to be addressed: was her death intended by that person? If the answer to this was yes, then the question of identity arose.

100 It is at this point that the propensity evidence assumes its importance. In the absence of any evidence that the applicant mutilated the body of Nicole Patterson, her death would have been irrelevant to the applicant's trial for the murder of Ms Maher. The two women died in quite different circumstance. It was what happened immediately afterwards that was strikingly similar.

101 As a matter of reality, the applicant's best hope was that the prosecution would fall at the first hurdle. Dr Matthew Lynch, the pathologist who conducted the post mortem examination of Margaret Maher, found a number of injuries to the body of the dead woman. These are described in the judgment of Nettle J.A. None of them pointed directly to the cause of death. The most significant was a lineal area of petechial haemorrhage on the right lateral neck which, on dissection, was seen to be associated with a minor haemorrhage within the muscles adjacent to the thyroid cartilage. This was consistent with Ms Maher having been the victim of compression of the neck; and it was possible that that compression was a cause, or indeed the cause, of her death. But there were two other possible causes: drug toxicity and heart failure. Dr Lynch could elevate none of the three above the status of possibilities. While the evidence remained at that point, no jury could convict on a charge of murder.

102 But there was, of course, more. The other, vital, piece of evidence was the fact of the mutilation; and this was evidence the relevant significance of which it was for the jury, not Dr Lynch, to assess. If the trial was to be fair, that assessment had to be effected carefully and rationally. It did not necessarily follow that, because Ms Maher's body had been mutilated after death, she had been murdered. The possibility remained that the mutilator was not with her when she died. It was also possible that, although in her presence, he (we may, for present purposes, assume it was a male) in no way contributed to her death. She was a drug-dependent prostitute in very poor health, including in the functioning of her cardiac system. Death by natural causes might have occurred at any time. Her post-mortem attacker may have been a client. Clients of prostitutes are not necessarily lovely people. Expectations disappointed by the sudden and unanticipated death of the service provider might induce in those clients unlovely responses.

103 This, of course, is no more than supposition. But it may have been enough to create a reasonable doubt in the jury's mind. A further possibility was that the mutilator's actions caused or contributed to Ms Maher's death, but that he did not intend either to kill her or to cause her really serious injury. A final possibility was that her mutilator was also her murderer. He was certainly violently disposed towards her after her death; and, that being so, it was of course possible to infer that his disposition arose during her life.

104 A "no case" submission was put to his Honour. The judge was in my opinion entitled, if not bound, to reject it, which he did. Nevertheless, if one puts the Patterson evidence to one side, as the jury were bound to do when considering whether a person caused the death of Ms Maher and, if so, whether that person intended to kill her, the prosecution case was not so strong as to be overwhelming. On the strictly limited evidence upon which, as the judge correctly instructed them, the members of the jury were constrained to base their conclusion on these points (that is, putting entirely to one side the evidence relating to Nicole Patterson), they might properly have returned a verdict of not guilty on the ground that one or other of those elements of the prosecution case had not been made out to the requisite standard.

105 It is certainly true that the jury were not entitled simply to assume that Ms Maher was murdered. It follows as of course that it was equally impermissible for them to assume that a particular person was the murderer. They were similarly not entitled to conclude that the applicant, being the person that he was, must be guilty of the crime. It was their duty to examine the evidence - but only the relevant evidence - with scrupulous care before deciding whether they were satisfied beyond reasonable doubt that Ms Maher's death was attributable to an unlawful act; and, if so, who was responsible.

106 Acceptance by the trial judge of the Crown's submissions on the use to be made of the propensity evidence would have prevented the jury giving effect to this duty. The Crown initially sought to persuade the judge that the propensity evidence was all of a piece. Ms Patterson had been murdered and then mutilated. Ms Maher had suffered the same fate. The applicant was on trial for the latter's murder. The propensity evidence was relevant in his trial. The Crown submitted that it should be used by the jury as evidence of the applicant's role not only as the mutilator but also as the murderer.

107 This approach was flawed. It assumed that which had to be proved: that Ms Maher was murdered. It also glossed over the reality that Ms Patterson met her death in strikingly different circumstance to Ms Maher. The differences were many. The most significant was that the former suffered multiple stab wounds from which she died, whereas Ms Maher's injuries were relatively slight; and her attacker - if she was attacked - did not use a knife. The striking similarity in the post-mortem dealings with each body could not properly be extended so as to overwhelm the differences in the manner of the two deaths.

108 His Honour was at pains to make this clear. He correctly informed the jury that they should not consider the "Patterson" evidence at all, but rather put it out of their minds, unless and until they were satisfied beyond reasonable doubt that Ms Maher had died at the hands of someone who intended to kill her, or cause her really serious injury, or (since a verdict of manslaughter was open) who unlawfully committed an act which (as the wrongdoer ought to have realised) exposed Ms Maher to an appreciable risk of really serious injury.

109 When the members of the jury retired to consider their verdict, the Patterson evidence was nevertheless before them. It could not but have made a deep impression. They could not have divorced themselves from it. And its prejudicial effect would have been at its most powerful when the jury came to decide whether they were satisfied beyond reasonable doubt that Ms Maher's death was caused by a person and, if so, whether that person intended to kill her. This was the weakest aspect of the case against the applicant. It would have been tempting for the jury to throw aside a doubt they might otherwise have had on the basis that, if they were satisfied that the applicant murdered Ms Patterson, then they could accept without rigorous analysis that he also murdered Ms Maher. He was that kind of man.

110 Thus, when deciding whether the prejudicial effect of the evidence outweighed its probative value, and therefore whether or not the evidence should be admitted, it was to this aspect of the case that attention had most carefully to be drawn.

111 In my opinion, his Honour made the right decision for the right reasons. Under s.398A of the Crimes Act 1958, propensity evidence is admissible in a criminal trial if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the accused. One measure of such effect is the nature of the propensity evidence itself. But it is not the only measure. Another is the likelihood that any prejudice will or will not be sufficiently counteracted by the directions of the trial judge. It may be that, in some instances, neutralisation, or something sufficiently close to it, will not be the result, no matter how careful the directions might be. In others, careful directions will suffice. The applicant submitted (Ground 1A in his application for leave to appeal) that, in this case, the risk could only be avoided if the jury were not exposed to it at all: otherwise, the jury would not - perhaps could not - put out of their minds the highly prejudicial evidence concerning Nicole Patterson upon the correct or incorrect admission of which this appeal turns. Put at its highest, the argument is that, with that evidence influencing their deliberations, the jury gave an affirmative answer to the question whether Ms Maher was murdered. Had they not been so influenced, a real possibility is that the answer would have been in the negative. At the very least, the trial judge's directions were not good enough (Ground 1B); and, on that basis, leave to appeal should be granted.

112 I agree that the propensity evidence was prejudicial. But I do not agree that the directions given to the jury by the trial judge were inadequate. On the contrary, his Honour's directions were in my opinion clear, accurate and sufficient. It was necessary that the jury be told that, before they could turn to the identity of Ms Maher's killer, they must be satisfied to the criminal standard that Ms Maher had died at the hands of some person, and that he or she intended to kill her or cause her really serious injury. The jury were so instructed. The jury were also told, as was necessary, that the evidence concerning Ms Patterson was relevant only on the question of identity, and on that point all the dissimilarities, as well as all the similarities, in the two post-mortem excisions, including the evidence about the cutting of the clothes, were relevant. The instructions given to them by the trial judge included a clear warning that they must not accept that the person who mutilated Ms Patterson and he who mutilated Ms Maher were one and the same, and that the applicant was that person, unless they were satisfied beyond reasonable doubt that the similarities when seen against the dissimilarities left no other conclusion open. They were instructed not to draw any conclusions from the circumstances in which Ms Patterson met her death, circumstances that had to be revealed to them because they were inextricably intertwined with the evidence of the latter's mutilation.

113 In my opinion, Kaye J was justified in concluding that these directions could (and therefore, despite any adverse effect of media publicity, would) be followed by the jury, and that in all the circumstances it was just to admit the propensity evidence despite its prejudicial effect. Indeed, this case is a good example, it seems to me, of the truth of the proposition that, given the probative value of some propensity evidence, it may be just to admit it despite its very prejudicial effect. It will always be necessary to ensure that the latter is dissipated as much as is possible by appropriate directions from the trial judge to the jury.

114 The similarities and differences between the post-mortem fate of Ms Patterson and that of Ms Maher have been described in the judgment of Nettle, J.A. I need not recount them. Once the jury were satisfied that Ms Maher was murdered, the question of the identity of the murderer became the sole remaining issue. I agree with his Honour that the inference that the man who mutilated the body of Nicole Patterson was the same person who had earlier mutilated the body of Margaret Maher is supported by the underlying unity in the extraordinary nature of the method and incidents surrounding the two cases. Thus supported, the inference becomes so strong as to be capable of removing any reasonable doubt. It already having been established that Ms Maher was murdered, the conclusion that her mutilator was also her murderer was then almost inevitable.

115 The applicant submitted that in any event the propensity evidence should have been excluded by the proper application of what has become known as the Christie discretion. I agree with what the Chief Justice has written on this point. I also agree with Nettle J.A. The argument that there remains room for that discretion in the face of s.398A could only be attractive, if at all, in very special circumstances. They do not obtain here.

116 I am in agreement with the separate judgements of my colleagues on Grounds 2 and 4 of appeal. Like Nettle J.A., I also am in agreement with the conclusion reached by the Chief Justice. I would refuse the application for leave to appeal.

[1] R. v. Peter Norris Dupas [2001] V.S.C.A. 109.

[2] [1984] HCA 5; (1984) 152 C.L.R. 528.

[3] [1984] HCA 5; (1984) 152 C.L.R. 528 at 551-2.

[4] [1989] HCA 30; (1989) 169 C.L.R. 1 at 17.

[5] [1998] 4 V.R. 603.

[6] Ibid. See also Pfennig v. R [1995] HCA 7; (1995) 182 C.L.R. 461 at 464.

[7] [1991] 2 A.C. 447.

[8] [1984] HCA 5; (1984) 152 C.L.R. 528.

[9] [1995] HCA 7; (1995) 182 C.L.R. 461.

[10] [1988] HCA 50; (1988) 35 A. Crim. R. 47.

[11] [1998] 4 V.R. 603 at 611.

[12] R. v. Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412 at 417; R. v. Best [1998] 4 V.R. 603 at 607; R. v. Alexander & McKenzie [2002] VSCA 183; [2002] 6 V.R. 53 at 70-72, per Winneke P.; and R. v. Rajakaruna [2004] V.S.C.A 114 at [81]- [94].

[13] [1978] HCA 29; (1978) 140 C.L.R. 108 at 117, per Gibbs C.J., citing Lord Cross in R v. Boardman [1975] A.C. at 456; and Lord Hailsham of St Marylebone at 452-3.

[14] [2001] HCA 72; (2001) 208 C.L.R. 593 at [91].

[15] B.R.S. v. R. [1997] HCA 47; (1997) 191 C.L.R. 275 at 299; see also generally Hoch v. R. [1988] HCA 50; (1988) 165 C.L.R. 292 at 294-295, per Mason C.J., Deane and Dawson J.J.

[16] Ibid.

[17] (1995) C.L.R. 461 at 490.

[18] [1989] HCA 30; (1989) 169 C.L.R. 1.

[19] Director of Public Prosecutions v. P. [1991] 2 A.C. 447; as quoted in R. v. Rajakaruna [2004] VSCA 114; (2004) 8 V.R. 340 at 345.

[20] Pfennig v. The Queen [1995] HCA 7; (1995) 182 C.L.R. 461 at 485.

[21] [1961] HCA 74; (1961) 106 C.L.R. 1 at 16, per Dixon C.J.

[22] R. v. Peter Norris Dupas (Ruling No. 1) [2004] V.S.C. 253 at [31].

[23] R. v. Peter Norris Dupas (Ruling No. 1) [2004] V.S.C. 253 at [37].

[24] R. v. Peter Norris Dupas (Ruling No. 1) [2004] V.S.C. 253.

[25] R. v. Peter Norris Dupas (Ruling No. 1) [2004] V.S.C. 253 at [43].

[26] R. v. Peter Norris Dupas (Ruling No. 1) [2004] V.S.C. 253 at [41].

[27] Along with the fact that, in any case, its admission into evidence on that basis would offend the principle set out in Sutton v. R., because it would assume the fact that the accused murdered the deceased.

[28] [1978] HCA 29; (1978) 140 C.L.R. 108 at 117.

[29] [1991] 2 A.C. 447 at 462-3; also cited in R. v. Rajakaruna 8 V.R. 340 at 361.

[30] D.P.P. v. P. was a case where a father was charged and convicted with the sexual assault of his two daughters. Before making the comment quoted above, Lord Mackay discussed the lack of "striking similarity" in the testimony of the two girls, however, noted that there was "sufficient connection" between the circumstances spoken of by the two girls for their testimonies "mutually to support each other". The appeal was allowed and conviction restored. Ibid. at 462-3.

[31] R. v. Peter Norris Dupas (Ruling No. 1) [2004] V.S.C. 253 at [50].

[32] [1999] VSCA 93; [1999] 2 V.R. 412 at 418.

[33] Ibid.

[34] Ibid.

[35] R. v. Peter Norris Dupas (Ruling No. 1) [2004] V.S.C. 253 at [52].

[36] R. v. Best [1998] 4 V.R. 603 at 613, per Callaway J.A.

[37] Ibid.

[38] Ibid.

[39] This is in contrast, for example, to the evidence the Crown sought to lead against the accused in R. v. Alexander and McKenzie [2002] V.S.C.A. 183.

[40] [1998] 4 V.R. 621.

[41] See R. v. Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412 at 419, per Winneke P., where his Honour referred to

an article by J. Clough, "A Rational View of Propensity Evidence?" [1998] AdelLawRw 22; (1998) 20 Adel. L.R. 287 at 306-8.

[42] [1978] HCA 29; (1978) 140 C.L.R. 108 at 116-117, per Gibbs A.C.J.

[43] [1982] HCA 75; (1982) 150 C.L.R. 580 at 585, per Gibbs C.J. and 605, per Wilson J.

[44] [1984] HCA 5; (1984) 152 C.L.R. 528 at 534, per Gibbs C.J. and at 565, per Dawson J.

[45] [1989] HCA 50; (1989) 167 C.L.R. 590 at 594-595, per Brennan J.

[46] [1999] VSCA 93; [1999] 2 V.R. 412 at 419.

[47] [2005] V.S.C.A. 66.

[48] Ibid.

[49] Pfennig v. R. [1995] HCA 7; (1995) 182 C.L.R. 461 at 515.

[50] In R. v. Debs and Roberts, Winneke P., at 5, again referred to what McHugh, J. had held in

Pfennig but did not consider whether that was the final position. Vincent, J.A., with whom I agreed, at 87 (footnote 28), indicated that he agreed with the President in Tektonopoulos that though the courts had left it open, there would be little room for the exercise of the discretion.

[51] [1998] 4 V.R. 621.

[52] Ibid.; my italics.

[53] [1999] V.S.C.A. 93 at 419.

[54] [2000] NSWCCA 61; (2000) 111 A. Crim. R. 326.

[55] [1992] HCA 16; (1992) 173 C.L.R. 592.

[56] Ibid. at 605.

[57] R. v. Peter Norris Dupas (Ruling No. 1) [2004] V.S.C. 253 at [53].

[58] Persons or parties soliciting or otherwise attempting to obtain disclosures on past or present jury deliberations face two legal sanctions in this jurisdiction: contempt of court under the common law and criminal sanctions under the Juries Act 2000 (Vic.), see s.78.

[59] (1981) 4 A. Crim. R. 238.

[60] Professor Ranson, Ms Mouzos and Ms Taupin.

[61] Unlike the situation in Demirok v. R. [1977] HCA 21; (1977) 137 C.L.R. 20 , where the High Court allowed the special leave application in that case owing to prejudice to the accused, quashing the conviction for murder and refusing the Crown's application for a re-trial. According to Gibbs J.: "an accused who goes to a third trial is under an enormous handicap compared to one facing a first trial. The danger that the jury will know of his earlier convictions is high. Repeated trials increase the possibility that even an innocent accused may be found guilty".

[62] R. v. Dupas (Ruling No 6) [2004] V.S.C. 287.

[63] Ibid. at [11].

[64] Ibid. at [14].

[65] [1955] HCA 38; (1955) 92 C.L.R. 654 at 658.

[66] [1962] HCA 62; (1962) 108 C.L.R. 433 at 442.

[67] R. v. Dupas (Ruling No 6) [2004] V.S.C. 287 at [77].

[68] See for instance Arulthilakan & Mkoka v. R. [2003] HCA 74; (2003) 78 A.L.J.R. 257; R. v. Moffatt [2000] NSWCCA 174; (2000) 112 A. Crim. R. 201; Royall v. R. [1991] HCA 27; (1991) 172 C.L.R. 378.

[69] Ibid.

[70] [1999] VSCA 27; [1999] 2 V.R. 123.

[71] As has been seen, Nicole Patterson was killed as the result of stab wounds to her upper body. Contrastingly, the Crown's case was that Margaret Maher was killed as the result of compression to her neck.

[72] See Harriman v The Queen [1989] HCA 50; (1989) 167 C.L.R. 590 at 628-631, per McHugh, J.

[73] Shepherd v The Queen [1990] HCA 56; (1990) 170 C.L.R. 573 at 579, per Dawson, J.

[74] Emphasis added.

[75] [1978] HCA 29; (1978) 140 C.L.R. 108 at 117.

[76] [1975] A.C. 421 at 455.

[77] [1973] A.C. 729 at 759.

[78] [1972] 1 W.L.R. 1365 at 1367 C to D.

[79] [1997] HCA 47; (1997) 191 C.L.R. 275 at 283

[80] cf. Makin v The Attorney-General for N.S.W. [1894] A.C. 57

[81] cf. Reg. v Grills (1954) 73 W.N. (N.S.W.) 303; Perry v The Queen [1982] HCA 75; (1982) 150 C.L.R. 580.

[82] Director of Public Prosecutions v P. [1991] 2 A.C. 447 at 460; Pfennig v The Queen [1995] HCA 7; (1995) 182 C.L.R. 461 at 483-4.

[83] [1991] 2 A.C. at 462, per Lord Mackay, L.C.

[84] [1982] HCA 75; (1982) 150 C.L.R. 580 at 585.

[85] [1995] HCA 7; (1995) 182 C.L.R. 461 at 489.

[86] [1998] 4 V.R. 603 at 611.

[87] [1999] VSCA 93; [1999] 2 V.R. 412 at 416 [18]-[21].

[88] [1988] HCA 50; (1988) 165 C.L.R. 292 at 296.

[89] [1995] HCA 7; (1995) 182 C.L.R. 461 at 474.

[90] The Queen v Glennon [1992] HCA 16; (1992) 173 C.L.R. 592, at 614-5, per Brennan, J.

[91] R. v Christie [1914] A.C. 545 at 564, Cross on Evidence, Aust. Ed. at [1030]

[92] cf. R. v T.J.B. [1998] 4 V.R. 621 at 631-2, per Callaway, J.A.; R v Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412 at 419, per Winneke, P.

[93] ALRC Discussion Paper 69, Review of the Uniform Evidence Acts, July 2005 at [10.106].

[94] My emphasis.

[95] Cf. B v The Queen [1992] HCA 68; (1991) 175 C.L.R. 599 at 602-3, per Mason, C.J.

[96] R v Robertson [1998] 4 V.R. 30 at 42, per Callaway, J.A.; Kotzmann v R. [1999] VSCA 27; [1999] 2 V.R. 123 at 157, per Batt, J.A.

[97] I will hereafter refer to evidence of this kind as "propensity" evidence, that being the term adopted by Parliament in s.398 of the Crimes Act 1958.