R v Tektonopoulos [1999] VSCA 93

23. The premises at Kennedy Street and Gardiner Street were tested for fingerprints. No fingerprints of the applicant were found either in the bedroom or on the window of the Kennedy Street premises; nor were any prints of his found on the window of the Gardiner Street premises.

26. A search was made of the applicant's own premises. No clothing of the type described by the complainant as having been worn by her assailant was found.

29. The interview conducted between the police and the applicant on 5 December at the police complex was suspended whilst an identification parade was conducted. The complainant identified the applicant as the person who was in the bed-room at Kennedy Street. In her evidence she said that the applicant:

"got straight away my attention because I saw the man who had broken into my room."

There was evidence from the officer who conducted the parade that the complainant had said words to the effect:

but requested that the man so identified spoke to her. The applicant was then asked to say "I am looking for a man" and "if you do what I want you to do I will not hurt you". In her evidence, the complainant said that she had previously indicated to police that she would recognize the assailant "better by voice than sight" because she was, by training, equipped to recognize voices.

36. At the conclusion of the interview on 5 December, the applicant was charged with the offences that had occurred at Kennedy Street. They included "entering the premises as a trespasser with intent to commit a sexual assault" (burglary) and two counts of indecent assault. These were the three counts of which he was convicted by a jury in June 1998.

39. Much of the evidence led at the trial related to the events which had occurred at Gardiner Street on 5 December. Thus evidence was given by the police (some of whom described themselves as members of the "Rape Squad") of their observations of the applicant's movements in the Gardiner Street premises; of the recovery and search of the applicant's car including the finding of the torch and the knife; and of the denials by the applicant that he had been on the Gardiner Street premises.

42. The applicant's trial counsel had strenuously objected to the admissiblity of this evidence on the grounds that it had no probative value and certainly none which clearly transcended its prejudicial effect. The Crown sought to tender the evidence as "propensity evidence" pursuant to s.398A of the Crimes Act 1958, submitting that it was "corroborative" of the complainant's direct identification of the applicant. It could therefore be used by the jury, so it was submitted, to "support and confirm" her evidence.

45. In ruling that the evidence was admissible, the trial judge referred to the provisions of s.398A and to certain remarks concerning the purpose of the section made by the Attorney-General in her speech introducing the Crimes (Amendment) Bill into Parliament in 1997. His Honour then said:

"The test which I am to apply ..., accordingly, is whether I consider that, in all the circumstances, it is just to admit the evidence in question despite any prejudicial effect it may have on the accused man. That test is essentially the test which was promulgated by the House of Lords in the case of "P" [ [1991] 2 A.C. 447] and which was subsequently confirmed in the case of "H" [Reg. v. H. [1995] 2 A.C. 596]."

49. His Honour then referred to various statements made by the judges of the High Court in Pfennig v. R. [1995] HCA 7; (1995) 182 C.L.R. 461, and concluded:

"The observations which have been made in those various passages to which I have made reference, were concerned largely with the question as to whether the propensity evidence was capable of affording a foundation for a conclusion beyond reasonable doubt that the accused had committed the instant offence. Indeed, identity was at the heart of the decision of the High Court in Pfennig. Similar fact evidence, or propensity evidence, may sometimes be led, of course, for the purpose of negating a possible defence, such as mistake or something of the kind, or as affording evidence of a requisite mental state. In [this matter], the propensity evidence [is] not sought to be led to either of those ends. As I have indicated, it [is] rather sought to be led as corroboration of the evidence of [the complainant]. In that regard the issue is whether the propensity evidence is `relevant to facts in issue' in the proceedings. It seems to me that the evidence is relevant to such a fact in issue, whether that fact in issue be regarded as being the accuracy of the identification made by [the complainant], or whether the fact in issue be defined as being the identity of her assailant."

53. The primary submission made on the applicant's behalf before this Court was that the trial judge was in error in admitting into evidence the events which occurred in Gardiner Street on 5 December (grounds 2, 3 and 4). It was submitted that the evidence of those events was not "relevant to a fact in issue" in the trial and, in any event, such probative value which it had was insufficient as to make it "just" that it should be admitted.

56. I agree with the submission that the trial judge should not have admitted into evidence the events which occurred at the premises in Gardiner Street. Before stating the reasons why, in my view, the evidence was wrongly admitted, it is necessary to say something about s.398A of the Crimes Act. That section is in the following form:

"(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 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."

60. The purpose and scope of this section has recently been considered by this Court in R. v. Best (1998) 4 V.R. 603. It becomes clear from the judgment of Callaway, J.A. (with whom Phillips, C.J. and Buchanan, J.A. agreed) that the legislative purpose of s.398A was to abrogate the "no other reasonable explanation" test for admissibility of propensity evidence, as developed by the High Court in this country in Hoch v. R. [1988] HCA 50; (1988) 165 C.L.R. 292 at 296 and Pfennig v. R. [1995] HCA 7; (1995) 182 C.L.R. 461, in favour of the "just to admit the evidence despite its prejudicial effect" test enunciated by the House of Lords in Director of Public Prosecutions v. P. [1991] 2 A.C. 447.

63. However, as Callaway, J.A. pointed out in Best (at 612), the flexibility of the test now provided in s.398A (2) "means that, properly applied, it will not greatly alter the conduct of criminal trials". This is because, as his Honour said, propensity evidence will be admissible whenever it is just to do so "in all the circumstances"; and the circumstances will sometimes include the impossibility of conducting the trial in a sensible fashion unless the evidence is received. The fact is that the test which s.398A (2) now requires is not far removed from the test which was customarily applied in Australia before Hoch (supra). In Sutton v. R. [1984] HCA 5; (1984) 152 C.L.R. 528, Brennan, J. described the test of admissibility as follows (547-8):

"Before the trial judge is at liberty to admit similar fact evidence he must be satisfied that the probative force of the evidence clearly transcends its merely prejudicial effect ... . It is the probative force (or cogency) of the evidence in comparison with the impermissible prejudice that it may produce which determines admissibility ... ."

This test required the judge to balance probative force against prejudicial effect. The test now described in s.398A (2) is, as I have said, not far removed from that test because, as Toohey, J. said in Pfennig's case (507):

"Evidence that an accused has committed other relevant offences must inevitably have a prejudicial effect. But, in the language of Director of Public Prosecutions v. P., it may nevertheless be `just' to admit the evidence. The reference to just aptly conveys the notion that it is not only the interests of the accused that are involved. The legitimate interests of the Crown and of the community cannot be overlooked."

69. It was not the intention of s.398A (2) to set at nought the body of common law principles which courts in this country and England had formulated over a period of more than 100 years, commencing with Makin v. Attorney-General (NSW) [1894] A.C. 57, which were designed to guide and inform as to the circumstances in which propensity evidence will satisfy the ultimate test of admissibility. The effect of these principles is that evidence of the commission of offences other than those charged, or indeed evidence of conduct which shows generally that the accused is a person of bad character, is prima facie inadmissible because the antipathy which it is apt to engender may unjustly erode the presumption of innocence (Sutton v. R. [1984] HCA 5; (1984) 152 C.L.R. 528 at 545 per Brennan, J.; Perry v. R. [1982] HCA 75; (1982) 150 C.L.R. 580 per Murphy, J. at 593-4). Before such evidence may be admitted it must have such a probative force in relation to the offence charged as to justify its admission notwithstanding its inherent prejudicial effect (cf. Sutton's case, supra, per Dawson, J. at 565).

72. Although not defined, there seems no reason to doubt that the "propensity evidence" of which section 398A (2) speaks is evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. These were the terms in which Mason, C.J., Deane and Dawson, JJ. in Pfennig (supra at 464-5) described "propensity evidence", but as Callaway, J.A. pointed out in Best (supra at 608) such evidence is not limited to "crimes" but extends to other discreditable conduct reflecting the bad character of the accused.

75. Courts have traditionally spoken of propensity evidence as falling into discrete categories. In Pfennig, Mason, C.J., Deane and Dawson, JJ. said (at 464-5) that, although it will always be evidence of propensity, it "may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence". "Similar fact" evidence has, in the past, been broken into sub-categories, depending upon the purpose for which it is being tendered. Thus it has been admitted to prove identity of an offender, or to prove system or intent, or to negate accident or mistake or some other defence.

78. The courts, as I have indicated, have always admitted propensity evidence with great caution and, because it is inevitably attended by prejudice, have required it to go beyond mere disposition to commit crimes or particular kinds of crime and to have a "strong probative force" in respect of the offence charged (Markby v.R. [1978] HCA 29; (1978) 140 C.L.R. 108 at 117) or a probative force which clearly transcends its prejudicial effect (Perry, supra, at 604 per Wilson, J., at 609 per Brennan, J.; Sutton v. R., supra, at 547-8 per Brennan, J., at 559-60 per Deane, J.; Thompson v. R. [1989] HCA 30; (1989) 169 C.L.R. 1 at 16 per Mason, C.J. and Dawson, J.). However, as McHugh, J. pointed out in Pfennig, supra at 516, it was difficult to see why, in developing the "no other reasonable explanation" test, the courts had previously seen fit to go beyond the test enunciated in Markby and had insisted upon a test which required the judge to weigh the probative value of the propensity evidence against its prejudicial effect. Whether one applied the test formulated in Markby or the "no other reasonable explanation" test, any "weighing" by the judge became superfluous. For this, and other, reasons he proposed a test of admissibility analogous to that contained in s.398A (2) of the Crimes Act.

81. Whether the propensity evidence has the requisite degree of probative force in relation to the crime charged so as to render it "just", for the purposes of s.398A (2), to admit it must necessarily be decided on a case-by-case basis. For that reason it is not possible to develop a set of guidelines which can be universally applied. It would, however, appear from authority and practice that the nature of the evidence sought to be tendered and the purpose to which it is proposed to be put has a part to play. Indeed, ever since R. v. Ball [1911] A.C. 47, it does not seem to have been doubted that, in a sexual offence case, evidence of criminal or other discreditable conduct is admissible to establish the "guilty relationship" or "sexual passion" existing between the complainant and the accused provided that suitable warnings are given by the judge to the jury against its impermissible use. As Callaway, J.A. said in Best (at 612):

"It must, however, be pointed out that the difficulties of applying the Pfennig case to relationship evidence do not apply to the test in [s.398A (2)]. So long as the qualifications expressed earlier are not forgotten, it is appropriate that any division of propensity evidence be inadmissible unless its probative value makes it just to admit the evidence despite any prejudicial effect it may have on the accused. Mere background evidence (cf. Gipp v. R. (1998) 155 A.L.R. 15; 72 A.L.J.R. 102 at [179] [181]-[182] per Callinan, J.) is unlikely to meet the test but legitimate evidence of relationship will usually be admitted. That is because, if proper directions are given, the probative value of such evidence ordinarily outweighs its prejudicial effect."

Furthermore, in cases other than those involving sexual offences, "relationship" evidence disclosing discreditable conduct on the part of the accused has been admitted to prove motive or to explain the conduct of the accused (Wilson v. R. [1970] HCA 17; (1970) 123 C.L.R. 334).

86. However, when the propensity evidence sought to be tendered, whether in sexual cases or not, is in the nature of "similar fact" evidence, the courts will only receive it with great caution because it is in such cases that the risk of prejudice is ordinarily at its highest. This is particularly so in cases where the evidence is tendered for the purpose of establishing the identity of the accused as the offender. 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. Although the House of Lords in Director of Public Prosecutions v. P., supra (a case in which the accused was alleged to have committed sexual offences against multiple complainants) rejected the proposition that "striking similarity" was an essential pre-requisite of admissibility of similar fact evidence in all cases, Lord Mackay of Clashfern L.C. (with whom the other Law Lords agreed) said:

"Where the identity of the perpetrator is in issue, and evidence of this kind [that is, propensity evidence] is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle."

90. In confirming the more stringent "no other reasonable explanation" test, Mason, C.J., Deane and Dawson, JJ. in Pfennig, itself a "similar fact case", agreed (at 484) that "striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence" but went on to say that "usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics". Similar views were advanced by Gibbs, C.J. in Sutton's case, supra, where his Honour said that (535):

"... in applying the test of admissibility which I have stated, practical assistance will in many cases be obtained from considering whether there is a `striking similarity' between the similar facts and the fact in issue. The present is such a case : the issue being identity, the question is whether each of the crimes was committed in a manner so strikingly similar to the others that a jury could reasonably conclude that the same person was guilty of all the crimes."

(See also Perry, supra, at 610 per Brennan, J.; and Thompson, supra, at 39 per Gaudron, J.)

27 Application of principles to the facts of the present case

The Director submitted, although not with conviction, that this Court should state that a determination by a trial judge to admit propensity evidence under s.398A (2) is one made in the exercise of a discretion. For my own part I cannot accept that submission. The question, as the trial judge accepted, is one of law and not discretion, although it must involve matters of degree and value judgment in which the experience of the judge will play a prominent role (Sutton v. R., supra, at 548, 553-4 per Brennan, J.; Director of Public Prosecutions v. Boardman [1975] A.C. 421 at 444-5). In truth, the trial judge has no discretion because if he concludes that the evidence is sufficiently probative as to render it just to admit it despite its prejudicial effect, he must admit it; if it is sufficiently prejudicial so as to render it unjust to admit it, he must exclude it. There seems to me to be little room for the "Christie discretion" (R. v. Christie [1914] A.C. 545). Indeed, as McHugh, J. pointed out in Pfennig (515):

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

In this sense, 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" (R. v. T.J.B. [1998] 4 V.R. 621 per Callaway, J.A. at 631-2). I note, however, that the Court in T.J.B. left open the question as to whether the section leaves any room for the exercise of a "Christie discretion" (as to which see : "Clough, A Rational View of Propensity Evidence?" [1998] AdelLawRw 22; (1998) 20 Adel.L.R. 287 at 306-8).

It is, accordingly, open to an appellate court to review his Honour's ruling and substitute its own judgment on the facts before it, although, as I say, it would be loath to do so if it were apparent that the trial judge had reached his determination in accordance with proper principle.

100. In this case his Honour was being asked to admit evidence of similar facts (namely the events which occurred at Gardiner Street on 5 December) in order to prove the identity of the offender who committed the proven offences which took place in the house at Kennedy Street on 2 December. The evidence remained evidence of identity for the purposes of admission whether or not, once admitted, it was open to be used by the Crown "to bolster or confirm" the evidence of direct identification given by the complainant. Within the meaning of s.398A (2), the "fact in issue" to the proof of which the propensity evidence was relevant was the identity of the offender in Kennedy Street and not the adequacy of the evidence of the complainant. Identification evidence is not limited to identification from memory or photograph. Where the fact in issue is "who committed the offence?", identification can take the form of physical identification, confession, or fingerprints or other circumstantial evidence of which evidence of "similar facts" is a species (Sutton v. R., supra at 538 per Murphy, J.). However, where the circumstantial evidence sought to be led to prove identity is proof of other crimes or discreditable conduct on the part of the accused, it becomes a particular type of circumstantial evidence which is subject to the special exclusionary rule (Sutton, supra, at 548 per Brennan, J., 564 per Dawson, J.). To suggest that the test of admissibility is in some way to be circumscribed because the evidence was to be used to "corroborate" the complainant's identification is, at it seems to me, to misdescribe the fact in issue to which it is said the evidence is relevant. Although the evidence in question (although not strictly "corroborative"), might have been used, if admitted, as an additional piece of circumstantial evidence upon which the identity of the offender might be proved, its admissibility had to be tested first. As Lord Mustill pointed out in Reg. v. H., supra, at 615, questions of admissibility and corroboration often overlap, but are not the same. As he said:

"If the evidence cannot be admitted, the question whether, if admitted, it would be corroborative is academic."

This, as I see it, must be so because, once the evidence is in, the prejudice which the exclusionary rule seeks to avoid will have its full effect.

105. As I have noted, in ruling the evidence admissible, the learned judge said that "similar fact evidence ... may sometimes be led ... for the purpose of negating a possible defence, such as mistake ... or as affording evidence of a requisite mental state. In the matter with which I have been concerned, the propensity evidence was not sought to be led to either of those ends. As I have indicated, it was rather sought to be led as corroboration of the evidence of [the complainant]. In that regard, the issue is whether the propensity evidence is `relevant to facts in issue'."

His Honour concluded that, in his opinion, the evidence was relevant to a fact in issue, "whether the fact be regarded as the accuracy of the identification made by the complainant or the identity of the assailant".

109. On any view it seems to me that his Honour misdirected himself. He appears to have been influenced by the fact that the Crown was seeking to use the evidence as "corroboration" of the complainant's identification and that a fact in issue was the accuracy of that identification. Indeed, in the course of argument as to the admissibility of the evidence, his Honour had said to the applicant's counsel:

"If one ignores the identification evidence [of the complainant] the Crown could not conceivably by proving what it alleges occurred on the 5th prove that your client committed the offence of (sic) the 2nd. No possibility. ... The way in which the Crown seeks to admit the evidence is ... as corroboration of the correctness of the evidence of [the complainant]."

For the reasons stated, this seems to me to mistake the fact in issue towards which the propensity evidence was directed. But, in any event, his Honour, as I see it, did not in the course of his ruling give reasons why the propensity evidence had the type of probative force which the law requires to render it "just" to admit it. Nor did he seek to expose its prejudicial effect. There is no doubt that the evidence was extremely prejudicial to the accused. However, there was nothing to which his Honour pointed which suggested that the events at Gardiner Street had any "striking similarity" or "hallmark" or "underlying unity" which, when looked at in the light of the other evidence, made it objectively improbable that the offences charged were not committed by the applicant. Indeed the only similarities which existed, as it appears to me, between the events constituting the charged offences and those said to constitute "similar facts" are that each occurred in the early hours of the morning at premises in Richmond in which one of the occupants was a young woman. But there were significant dissimilarities : the offender at Kennedy Street entered the dwelling and sexually assaulted a female inmate; the applicant did not; the offender at Kennedy Street carried a knife and a torch; the applicant did not; the offender at Kennedy Street entered a darkened room in which the occupant was asleep; whatever the applicant was endeavouring to do at Gardiner Street he did not do that; indeed he left the premises without having entered them.

114. Because his Honour did not, in the course of his reasons, provide any detailed explanation as to why he regarded the similar fact evidence as having the very high probative value which, in accordance with the principles to which I have referred, the law requires it to possess, it is not easy to see why he regarded it as "just" to admit it notwithstanding its prejudicial effect. However, because the offences with which the applicant was charged required proof that the offender was a person bent on sexual assault, it would seem that his Honour must have concluded that the similar fact evidence was capable of demonstrating that the applicant was intending to enter the Gardiner Street premises for the purposes of sexually assaulting the inmate. Indeed this was the basis upon which the prosecution asked the judge to admit the evidence, saying:

"The Crown contention would be that he was there for sexual purposes."

That process of reasoning, if such it was, would in my view go beyond legitimate inference and involve speculation that the applicant was at the Gardiner Street premises on a preliminary "reconnoitre" with a view to collecting his torch and knife and then returning to the premises to break in and assault the female occupant.

119. The process of reasoning which I have assumed in the preceding paragraph is borne out by the directions which his Honour ultimately gave to the jury. Having warned the jury that "you cannot prove that a man committed a burglary simply because you prove that he is a burglar", his Honour went on:

"So that it would ... be quite wrong [to] conclude that [the applicant] was at Gardiner Street for the purpose of committing an offence of some kind. Let us assume that even if you were satisfied that he was there for the purpose of breaking into that property, then or later on, and in that regard of course you will realize that he did not have the torch or the knife with him ..., even if you decided that he was there with a view to breaking into the premises and with a view to indecently assaulting a woman in the premises, and I am not suggesting for a moment you would be satisfied of that, ... that cannot possibly assist you in saying that he was therefore the person who committed the offence against [the complainant]. All it can do is to form part of the circumstantial evidence which may support ... the identification made by [the complainant]. It cannot, of itself, prove that he committed the offence."

123. These directions prompted a question from the jury in this form:

"We have been unable to come to a unanimous decision. We were wondering whether you could advise us on how we should weigh corroborative evidence in conjunction with an I.D.?"

127. In the course of giving further directions, his Honour again told the jury that they could only use the "similar fact" evidence as "corroboration" of the complainant's identification. Having referred to the Crown's submissions on that matter, his Honour went on:

"... and the Crown says that you should be able to infer that he was intending to commit some offence and ... you should be able to infer that it was an offence involving breaking into the house and sexually assaulting a female within it. That he had in his car, which was parked nearby, a knife and a torch, and that in those circumstances, the Crown says when you look at all those things ... you ought to regard that as supporting the evidence of [the complainant] ... . Now, in relation to that, it seems to me that the first thing you need to do is to form a judgment about what he was doing in the early hours of the morning in Gardiner Street. ... You would consider all that evidence and make a judgment as to what in your view was the purpose of his being there on that morning ... . You may say he was there with the view of breaking into the place, or `casing' it with the view of coming back and breaking into it later on and assaulting a female whom he had seen inside ... . Then you form some judgment as to what he is doing. Having formed the judgment as to what he is doing it is then a question for you to ask yourselves, and each of you may have a different view about this, as to whether that evidence, as to what he was doing that night and the other matters relied upon by the Crown, are such as to support [the complainant's] evidence ... . But there does not have to be agreement reached. What is necessary at the end of the day ... is that you are all agreed upon the verdict ..."

131. These directions were the subject of strong exception taken by the applicant's trial counsel on the basis that the jury were being asked to speculate about what the applicant was doing or intending to do in Gardiner Street in order to establish the "similar facts" said to be probative of the offences charged. His Honour declined to further direct saying that the jury had been told that, whatever view they formed of the applicant's intentions, they could not use the "similar fact" evidence to say that the applicant had committed the offence in Kennedy Street; and that they had been told that they could only use the evidence as "corroboration" and only then after forming a view as to what he was doing in Gardiner Street.

134. His Honour's directions serve to confirm my view that the evidence was inadmissible. If the evidence, taken at its face value, did not have sufficient cogency to establish that the applicant was the offender at Kennedy Street, as his Honour seems to have accepted, then it was no more than evidence of criminal propensity which, in accordance with authority, should not have been admitted. Furthermore, as it seems to me, the directions demonstrate that it was his Honour's view that the events which occurred at Gardiner Street could only have probative value in the event that "some judgment" was made as to what the applicant was doing, or intending to do, at the Gardiner Street premises. This invited speculation as to whether the applicant had a sexual intent whilst at Gardiner Street and whether, to make good that intent, he was intending to leave the premises for the purposes of returning to his car to collect a torch and a knife, the "tools of trade" which had been used by the offender in Kennedy Street. Even then the available evidence strongly suggested that the "tools" were not those used by the offender at Kennedy Street. This chain of reasoning, notwithstanding the arguments of the Director to the contrary, in my view is an impermissible one because it depends for its validity upon an assumption that the applicant was the offender at Kennedy Street and then importing the modus operandi of the offender at those premises into the events at Gardiner Street in order to fix the applicant with the required sexual intent so as to provide the "striking similarity" needed to support the admissibility of the evidence. Although it is, of course, true that a court cannot assess the probative force of similar fact evidence without taking into account the rest of the case which the evidence is tendered to support, it is equally true that it cannot assume that the accused has committed the crime charged to render admissible evidence of the so-called similar fact (per Gibbs, C.J., Sutton v. R., supra, at 533). As Brennan, J. said in Perry v. R., supra, at 612:

"To seek to prove a fact in issue by a chain of reasoning which assumes the truth of that fact is, of course, a fallacy, repugnant alike to logic and to the practical processes of criminal courts." (See also Thompson, supra, at 17 per Mason, C.J. and Dawson, J.)

If the evidence had no probative value on its own account, it could not receive such probative value by the circular process of reasoning described.

139. Quite apart from its inherent prejudicial effect, this evidence had the potential for particular prejudice to which his Honour did not specifically allude in his reasons supporting its admission. To admit it would inevitably invite speculation as to why members of the "Rape Squad" were keeping the applicant under surveillance at Gardiner Street. Furthermore it had the capacity to distract the jury from its task by inviting them to engage in a "mini-trial" to establish what had occurred at that location. Amongst other things, the Crown was proposing to invite the jury to find that the applicant lied to the police about the reasons for his presence at those premises and to use that fact as evidence probative of his guilt of the offences charged. To use a lie told in those circumstances as evidence probative of the offences charged seems to me to be wholly tenuous, but it is demonstrative of the prejudicial effect which admission of the evidence was likely to cause.

142. I have said sufficient to indicate why, in my view, it was not "just" to admit the evidence of the events at Gardiner Street pursuant to s.398A (2). The Director sought to support the trial judge's ruling by taking us "root and branch" through the judgments delivered in Pfennig and submitting that the reasons given in that case justified the ruling in this case. Indeed the Director went so far as to submit that a conclusion in this case that the evidence was wrongly admitted would be tantamount to a finding that Pfennig was wrongly decided. Quite apart from the fact that it is, in my view, inappropriate to seek to support the admission of evidence in one case by reference to the facts of another case, as distinct from extracting principles, I cannot agree that the Director's submission is correct. This case is, in a sense, the obverse of Pfennig where the "similar fact" evidence was unchallenged and proved that the accused was the abductor of a young boy for the purposes of sexual assault. What was submitted in Pfennig's case was that the similar fact evidence, so established, could not prove that the offences charged had been committed or that the accused was the perpetrator. In this case it was not in doubt that the offences charged had been committed by some one. The question at issue was whether the "some one" was the accused and, to that end, whether the similar fact evidence which the Crown sought to tender was sufficiently probative to establish that fact. For the reasons which I have given, I do not believe it was capable of doing so. In my view the judge was in error in admitting it.

145. The application will have to be allowed. It is unnecessary to consider the other grounds of appeal or the application for leave to appeal against sentence. The only question is whether there should be a new trial or whether a verdict of acquittal should be entered. With some hesitation, I think that the identification evidence, apart from the "similar fact" evidence, is of sufficient strength to warrant the order for a new trial.

150. I agree with the President that this appeal must be allowed and a new trial ordered.

153. As the President has said, the evidence of what occurred at Gardiner Street on 5 December 1997 was tendered by the prosecution to prove the identity of the offender who committed the offences which took place in the house at Kennedy Street on 2 December. I agree with the President that such evidence is received with great caution. To the authorities the President has cited for this view, I would add only the following. The explanatory memorandum to the Crimes (Amendment) Bill, which introduced in 1997 a new s.398A(2) of the Crimes Act 1958, stated that the sub-section was in accordance with the test enunciated by the House of Lords in Director of Public Prosecutions v. P. [1991] 2 A.C. 447. In Pfennig v. The Queen [1995] HCA 7; (1994-1995) 182 C.L.R. 461, Mason, C.J., Deane and Dawson, JJ. referred, at 478-479, to what had been said by Lord Mackay of Clashfern, L.C. in P. at 460-462, and, after referring to the passage from the Lord Chancellor's speech quoted by Winneke, P. in para. 25 above, said, at 479-480, that this represented an authoritative statement of the relevant law as it presently stands in the United Kingdom and New Zealand, and closely resembles that applying in Canada.

156. There was in the events at Gardiner Street no evidence of a character sufficiently special reasonably to identify the applicant (P. at 460D-E) or anything in the nature of a signature or other special feature (P. at 462F-G) which, when looked at in the light of all the other evidence, made it objectively improbable that the offences at Kennedy Street with which the applicant was charged were not committed by him. I agree that the judge was in error in admitting the evidence for all the reasons given by the President.

160. I have had the benefit of reading in draft the reasons for judgment of the President. I agree with his Honour's conclusion and proposed orders and with his reasons. I wish only to say that under s.398A(2), whilst probative force and prejudicial effect necessarily fall for consideration, the exercise is, strictly, not one of measuring those incommensurable concepts against each other.