R v Vaughan; ex parte A-G(Qld)

EVIDENCE - ADMISSIBILITY AND RELEVANCY SIMILAR FACTS - IN GENERAL - RELEVANT PRINCIPLES - where Vaughan was charged with murdering Nina Lee Lewis; entering Lewis' dwelling with intent to commit an indictable offence; assaulting Lewis with intent to rape her; unlawfully depriving Lewis of her personal liberty; unlawfully using a motor vehicle of which Lewis was in lawful possession without her consent; and wilfully and unlawfully setting fire to the same motor vehicle - whether evidence of the commission of an earlier offence of assault against SM with intent to commit rape should be admitted on Vaughan's trial for murder, assault with intent to commit rape, and other offences in relation to Lewis - where Vaughan applied to exclude evidence of earlier offence - where the Prosecution contended the following features were common to both offences against SM and Lewis: the offender abducted a young woman for sexual purposes, drove the intended victim to bushland and he took tape with him, in each case, tape belonging to Vaughan - where first judge applied a test to determine the admissibility of propensity evidence, which was subsequently declared inappropriate by the High Court in Phillips v R [2006] HCA 4; (2006) 224 ALR 216, and determined that SM's evidence was admissible - whether application of inappropriate test created a special reason under s 590AA(3) Criminal Code 1899 (Qld) justifying a reconsideration of first judge's ruling that SM's evidence was admissible and should not be excluded

EVIDENCE - ADMISSIBILITY AND RELEVANCY SIMILAR FACTS - IN GENERAL - RELEVANT PRINCIPLES - where Vaughan applied for a order under s 597A Criminal Code for a separate trial on the charge of assault with intent to commit rape - where Vaughan argued first judge's ruling rendered SM's evidence admissible in trial on the assault with intent to commit rape charge but not the trial on the murder and other charges - where severance of charges would be either inconsistent with the first judge's decision to admit SM's evidence or would involve overturning the decision of the first judge - where second judge decided in those circumstances it was appropriate to re-open earlier ruling under s 590AA(3) Criminal Code - whether this result justified reconsideration of first judge's ruling that SM's evidence was admissible

EVIDENCE - ADMISSIBILITY AND RELEVANCY SIMILAR FACTS - IN GENERAL - RELEVANT PRINCIPLES - where second judge decided that SM's evidence was inadmissible - whether second judge articulated the correct test to determine the admissibility of SM's evidence, and if so, whether the second judge actually applied this test

Criminal Code 1899 (Qld), s 590AA, s 597A, s 668A

Carne v R (1997) 94 A Crim R 249, considered

Pfennig v R [1995] HCA 7; (1995) 182 CLR 461, considered

Phillips v R (2006) 224 ALR 216; [2006] HCA 4; B58 of 2005, 1 March 2006, considered

R v Hoch; A-G(Qld) [2001] QCA 63; CA No 337 of 1997, 26 February 2001, considered

R v O'Keefe [2000] 1 Qd R 564; [1999] QCA 50; CA No 332 of 1998, 5 March 1999, considered

Reg v Scarrott [1978] 1 QB 1016, cited

A J Rafter SC, with S L Kissick, for the respondent

Director of Public Prosecutions (Queensland) for the appellant

**[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Jerrard JA and Helman J. I agree that the third question should be answered as their Honours suggest, for the reasons expressed by their Honours.

[2] JERRARD JA: This matter is a reference by the Attorney-General under s 668A of the Criminal Code 1899 (Qld) on points of law said to have arisen in relation to two rulings under s 590AA of the Criminal Code. The points of law originally referred were:**

1. Can the fact that a trial judge substantially disagrees with an earlier pre-trial ruling on its own constitute "special reason" for the purposes of section 590AA(4) of the Criminal Code?

2. Did the learned trial judge in this case have jurisdiction to re-open the pre-trial ruling of 29 September 2005?

3. Did the learned judge apply the correct test to determine the admissibility of the propensity evidence?

**[3] The Director, Mrs Clare, withdrew the request for rulings by this Court on either of the first two questions. It is therefore unnecessary to say anything on them. She presented the third question as one which required this Court to conclude that, while the learned judge stated the appropriate test accurately, the judge had not applied it. She contended that had the judge done so, the outcome must have been different.

[4] The third question arises because two different judges have given rulings which are inconsistent as to whether evidence of the commission of an earlier offence of assault with intent to commit rape should be admitted on Mr Vaughan's trial for murder, assault with intent to commit rape, and other offences. The offences other than murder were all allegedly committed against the deceased victim and were part of the alleged chain of events leading to her murder by Mr Vaughan.**

**[5] The reference arises from the following circumstances. On 29 September 2005 a pre-trial hearing was conducted under s 590AA of the Criminal Code before a judge of this Court, (the "first judge") in which that judge was required to rule on an application to exclude evidence upon which the Crown wanted to rely in a forthcoming trial of Mr Vaughan. He is charged on indictment with murdering Nina Lee Lewis on or about 30 August 2004, with entering her dwelling with intent to commit an indictable offence on that same date, with assaulting her with intent to rape her on that date, with unlawfully depriving her of personal liberty between 29 August 2004 and 1 September 2004, with unlawfully using a motor vehicle of which she was in lawful possession without her consent between those same dates, and with wilfully and unlawfully setting fire to it on 31 August 2004. He applied to exclude the evidence of SM from a trial on those counts.

[6] The first judge correctly characterised the evidence sought to be excluded as of the variety commonly called propensity evidence. The ruling in September 2005 records that the Crown alleged that the deceased woman and Mr Vaughan were neighbours, residing in the Ipswich suburb of Leichhardt. The deceased disappeared some time between the early evening of 30 August 2004 and the beginning of the working day on 31 August 2004. On this hearing this Court was told, without objection, that her residence was later found to be in a state of considerable disarray, suggesting a struggle. Her body was found in the Brisbane River at Kholo at about 3.00 pm on 4 September. She had been bound by black tape and grey duct tape around the head, wrists, and ankles. She had died from head injuries resulting from the application of blunt force. The lower half of her body was unclothed, and on the top part of her body was a small garment.

[7] Forensic examination of the tape with which she was bound showed that the tape, particularly around her ankles, was in two sections applied independently, the second on top of the first. It was applied by rolling it around the ankles in a number of turns. Inside the rolls of the tape and some distance from the end, and therefore not on the outside which would be touched if a person had touched the body after it was tied, investigating police found a fingerprint preserved in the adhesive of a layer of tape. It had apparently been lifted from the layer underneath. The fingerprint was Mr Vaughan's.

[8] He was interviewed and at first denied involvement. Eventually he changed his story, and told the police that he had been involved, not in the abduction or murder, but in the concealment of the body after the event. He named the person, whom he said committed the murder, and asserted that that person had asked him for help in disposing of the body. He said that he had given that help, and that the body had been taken to where it was found. The person named is a Crown witness who denies all knowledge of the offences, and who is put forward by the Crown as a witness of truth. That witness lived in the area near Mr Vaughan and the deceased, and was an associate of Mr Vaughan, although considerably younger.

[9] The first judge's reasons described the evidence in dispute, SM's. It is that in June 1999 she was walking home from a bus stop at about 5.45 pm in the evening, when Mr Vaughan seized her and forced her into the boot of his car. He was a total stranger to her. After driving some distance during which she kicked out the tail light of his car he stopped it, opened the boot, and spoke to her. When he opened it he was holding what she described as packaging tape in his hand, and she thought he would tie her up with it. She asked him not to; he was not aggressive towards her at that stage and allowed her to sit in the front seat of his car, putting the tape on the seat between them. She saw a knife in the centre console, picked it up and asked was he going to kill her? He said "no", took the knife and threw it out of the car window. During the course of further travel he told her he was not going to kill her, but he was going to tie her up and rape her. She gave him some cannabis, and he appeared to calm down, and after some further driving he took her to a point near her home and released her. He later pleaded guilty to a charge of having assaulted SM with intent to rape her, and with having detained her against her will with intent to carnally know her. He was sentenced to five years imprisonment.

[10] On this reference the written argument for the Attorney-General provided the further unchallenged information: the tape which bound the deceased woman had belonged to Mr Vaughan, his shoe print was found in the deceased's home, and his shoes were found in her car which had been partly burned out and abandoned. Thus he was linked to each "scene", i.e., her house, her abandoned car, and her body. She had died from blows to the head, and the likely weapon was a hammer. Further, the police have not found any evidence at all linking the person Mr Vaughan said was the killer with the crime, and there was security video footage which gave that person a partial alibi.

[11] The prosecution contended that common features in offences committed against SM and before the murder of Nina Lewis included:

• the offender abducted a young woman for sexual purposes;

• he took tape with him, in each case tape belonging to Mr Vaughan.

The Crown submitted on the reference that the evidence of the offences committed against SM was relevant. Firstly to identify the true role Mr Vaughan had played in the events leading to Nina Lewis' death, secondly to rebut his defence of innocent involvement only occurring after Ms Lewis had been murdered by another person, and thirdly to support the inference that he had intended to rape Ms Lewis when abducting her.

[12] Those submissions assume that Ms Lewis was abducted, inferred from the state of her home, and that she did not initially go voluntarily with Mr Vaughan when she left her residence on 30 August 2004, assuming she left it with Mr Vaughan. The first judge ruled that if the only issue was whether there were sufficient similarities between the offences committed against Ms Lewis, and those committed against SM, to identify Mr Vaughan as the person who murdered Ms Lewis, SM's evidence would not be admissible. However, the judge went on to hold that it could easily be inferred that the person who murdered Ms Lewis was the same person as the one who abducted her, removed part of her clothing, and tied her up with tape. When it came to considering who did that, the judge held that SM's evidence was very substantially probative, and admissible on the charge of assault with intent to rape.

[13] The judge went on, apparently speaking of that specific charge and SM's evidence, to state that:**

"It is, in my judgment, of such a calibre that the only reasonable view of it is as supporting the inference that it was the accused who was guilty of the offence, and also, it seems to me, that taken as a whole, the evidence on the Crown case is reasonably capable of excluding any innocent hypotheses. Once the jury concludes, if it does, that it is satisfied beyond reasonable doubt that the accused abducted the deceased with intent to rape and tied her up with that intent, that conclusion may well be used by them to reason that the person who killed the deceased was the same person as he who abducted and tied her."

**The learned judge added that directions might be necessary at the trial that unless the jury were satisfied beyond reasonable doubt that it was Mr Vaughan who assaulted Ms Lewis and that he did so with intent to rape her, they should disregard the evidence of SM; and that they should be directed that SM's evidence did not show any propensity to commit murder, indeed quite the reverse.

[14] The test the first judge imposed was obviously based on the judgment of Thomas JA in R v O'Keefe [2000] 1 Qd R 564[1] at 573, where His Honour wrote, regarding various passages in the judgment in the High Court in Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 at 481-485, that:**

"In consequence it seems to me that the only sensible resolution of these passages requires the trial judge to address two questions:

(a) Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged? The observations of Pincus JA in Wackerow are helpful in addressing this particular question; and

(b) If the propensity evidence is admitted, is the evidence as a whole reasonably capable of excluding all innocent hypotheses? This would have to be answered on the assumption of the accuracy and truth of the evidence to be led. If the judge thought that the evidence as a whole was not reasonably capable of excluding the possibility that the accused is innocent, then the accused should not be exposed to the possible risk of a mis-trial by a jury that would give undue prejudicial weight to propensity evidence. The exercise is to be undertaken with special care because of the potential danger of misuse of such evidence by the jury."

[15] In Phillips v R (2006) 224 ALR 216[2] the unanimous judgment in the High Court, published on 1 March 2006, held that in that case the trial judge had not applied the tests for the admissibility of evidence described as "similar fact", and stated in Pfennig v R. Rather the trial judge had followed, with counsel's agreement, those quoted tests advanced in R v O'Keefe. The joint judgment in the High Court then said, as to the latter:

"[64] The tests advanced in O'Keefe are expressed differently. Because they are expressed differently it cannot be assumed that in every case they would operate identically to the tests expressed in Pfennig. Indeed, much that is said in the reasons in O'Keefe might be read as suggesting that the tests propounded there were intended to have a different operation from those stated in Pfennig. These are reasons enough to conclude that the O'Keefe tests should not be adopted or applied. Intermediate and trial courts must continue to apply Pfennig."

[16] In Phillips the High Court had already held at [54] of the joint judgment, that:

"... despite the reformulation of the tests stated in Pfennig v R in R v O'Keefe, neither of those cases departed from a fundamental aspect of the requirements for admissibility: the need for similar fact evidence to possess some particular probative quality. The 'admission of similar fact evidence ... is exceptional and requires a strong degree of probative force.' It must have 'a really material bearing on the issues to be decided'. It is only admissible where its probative force 'clearly transcends its merely prejudicial effect'. '[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.' The criterion of admissibility for similar fact evidence is 'the strength of its probative force'. It is necessary to find 'a sufficient nexus' between the primary evidence on a particular charge and the similar fact evidence. The probative force must be 'sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused.' Admissible similar fact evidence must have 'some specific connexion with or relation to the issues for decision in the subject case.' As explained in Pfennig v The Queen:

'[T]he evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it." (Footnotes omitted).

[17] Their Honours in Phillips further explained the decision in Pfennig, with the observation at [63] of the joint judgment that:

"First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case. Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged. But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence."

[18] In my opinion the effect or essence of that joint judgment is that the first question suggested by Thomas JA in O'Keefe inappropriately focused on the propensity evidence considered alone. The correct position was put by Davies JA in R v O'Keefe, namely it must be the evidence as a whole which must be reasonably capable of excluding all innocent hypotheses rather than merely the propensity evidence;[3] and by de Jersey J, as His Honour then was, in Carne v R (1997) 94 A Crim R 249 at 271. His Honour wrote:

"The issue, then, is whether evidence of the appellant's involvement in the New South Wales killing could, when added to other evidence of the appellant's complicity in the Queensland killing, found the inference -- as the only reasonable inference open -- that the appellant committed the Queensland killing."

"While 'striking similarity', 'unusual features', 'underlying unity', 'system' or 'pattern' are not essential prerequisites for admissibility, their presence will often, as a matter of common sense and experience, exclude the possible reasonable explanation to which Pfennig and Hoch refer."[4]

**[20] Because in this matter the first judge applied a test subsequently declared inappropriate by the High Court, there was a special reason for reconsidering the ruling that SM's evidence was admissible and should not be excluded. A High Court decision overturning the case law forming the basis of an earlier pre-trial ruling or direction - or legislation subsequently enacted and declared to be retrospective - provides a special reason for a judge, whether the same judge or a different judge, to give leave to re-open that direction or ruling. To do otherwise would simply risk unjustified and expensive perpetuation of an error, as the Director readily recognised in withdrawing the first two questions.

[21] As it happened, the application which came before the second judge on 18 April 2006 in a second pre-trial hearing under s 590AA was not an application to revisit the earlier rulings because of the decision in Phillips. The application argued on 18 April 2006 was for an order under s 597A of the Criminal Code, for a separate trial on the charge of assault with intent to commit rape. Mr Vaughan's counsel, Mr Kissick, submitted that count should be severed and a separate trial held on it. He argued that the September 2005 ruling by the first judge that SM's evidence was admissible, made clear that the evidence was admissible on that charge, rather than on the count of murder and the other offences; and that accordingly his client was impermissibly prejudiced in his defence to those charges other than assault with intent to commit rape, by reason of his being charged on the same indictment with that offence. It was only by reason of that offence being on the indictment that the jury would get to hear the evidence of SM. The second judge clarified during the submissions that if the charge of assault with intent to rape was severed, Mr Kissick would object to the admission of SM's evidence on the trial of the other counts, including murder. Mr Kissick confirmed that he would so object, submitting that the first judge had ultimately left it to the trial judge to determine whether or not that evidence, on the other counts, demonstrated a propensity to kill or a propensity not to kill.

[22] The second judge gave a ruling, in which that judge noted that there was no complaint of improper joinder of charges, and that the issue was the exercise of the discretion to sever them; and that it was accepted by Mr Kissick that the issue of severance had neither been raised nor canvassed at the time of the earlier admissibility ruling. The second judge considered that it had become clear that the alternatives were to either sever the count of murder and try it separately, or sever the count of assault with intent to rape and proceed on the other counts. The judge considered that the conclusion had become unavoidable that the success of Mr Kissick's application for a separate trial involved an outcome which would be inconsistent with the ruling admitting the evidence of SM, or which involved overturning that ruling. The judge decided that in those circumstances it was appropriate to give leave to re-open the earlier ruling, under s 590AA(3).

[23] The second judge described having considerable difficulty in accepting that the similarities relied by the prosecution, (between the circumstances of the offences charged against Mr Vaughan surrounding the death of Nina Lewis and the offences committed against SM), were so striking as to specifically connect those "SM" offences to the ones to be tried. The second judge remarked that there were a number of decisions which required that such a connection be established, in order to permit the exceptional reception of what was conveniently described as propensity evidence; and that it was not in issue that the evidence of SM came into that category of propensity evidence.

[24] The second judge recorded that the need for such specific connection was developed by the High Court in Pfennig v R, and that similar development had been assayed in R v Hoch; A-G(Qld) [2001] QCA 63[5], with the need for it reinforced by the recent decision in Phillips v R. It follows that the second judge did state the correct test, as Mrs Clare conceded. The judgment in Phillips makes particular reference to the need for the propensity evidence to specifically connect the defendant to the crime charged. Mrs Clare argued that, nevertheless, the result reached showed the second judge could not have applied the test stated.

[25] The second judge found it difficult to conclude that there was anything striking, in the sense in which that word was used in the cases in the High Court, about a man intent on engaging in non-consensual sexual activity with a woman using force either directly or indirectly to effect his purpose, or surprising that such a person should make preparations for restraint, or use restraint. The judge observed that experience in the courts founded the conclusion that duct tape of the kind apparently used was a commonly used restraint, that a person who set out to engage in the activities of the kind that obviously occurred in the instant case was likely to take the victim to an area such as bushland (so that it was unlikely the activities were interrupted), and that the behaviour the prosecution relied on in establishing the appropriate specific connection was, to use the words in Phillips, unremarkable. The second judge accordingly concluded that the evidence of SM could not be relied on for the purpose of saying it was improbable that the person who committed the offence was someone other than Mr Vaughan because of the extraordinary coincidences between the two sets of offences. There were not enough singular coincidences. There was no doubt the evidence of SM would be prejudicial, and so the second judge held it should not be admitted.

[26] On the hearing of the reference, Mrs Clare referred the Court to the contents of the interviews between the police and Mr Vaughan, and to the references in those by Mr Vaughan to the fact that he was on parole, for attempted rape, had "done" two and a half years, and had been sentenced to five. There were also his descriptions of the offences for which he was jailed. She submitted that it would be extremely difficult to disentangle those references from the other conversations, and would distort the meaning of what remained. That was because Mr Vaughan put forward his own prior conviction as one specific reason he had attempted to persuade the person he named as the murderer, on earlier occasions, from that person's declared threats to "root", "stab", and "rape", when speaking of women in general.[6] Mrs Clare conceded that that argument had not been made by the DPP to either of the judges, who heard the respective applications to exclude SM's evidence, and to have a separate trial of the count of assaulting Ms Lewis with intent to rape her.

[27] A transcript of a conversation held on 1 September 2004, three days before Ms Lewis' body was found, reveals that Mr Vaughan had been questioned the night before by police about Ms Lewis' disappearance, and was questioned further at some length on 1 September 2004. In that conversation he described (by name) the man whom he later accused of having murdered Ms Lewis, as having told him that there was a body at Rosewood, and that that person said he had dumped the body there.[7]

[28] What is striking is that, at a stage at which Ms Lewis' body had not been found, Mr Vaughan volunteered to the police that:**

"There is one thing I forgot to tell youse blokes last night. That, um, I'm on parole and I did - I did two and a half years gaol as well.

What was that for? - - For something similar - a similar offence, but it was attempted rape [indistinct]. I'm still on parole for it and stuff." (Italics mine).

**A jury could consider those italicised words a significant admission of involvement in the abduction and actual rape of Ms Lewis. Equally significant was his apparent knowledge that her body would be found.

[29] The transcripts of all the interviews, which were held on 1 September 2004, 8 September 2004, and 9 September 2004, were before the first judge, as were two statements by SM, one made 18 June 1999 and the second on 26 June 1999. Because SM's evidence was not challenged as to its accuracy, it was common ground that if admitted, it would go before the jury by way of a statement rather than by her being called and examined before the jury. The judgment by the first judge does not record, and the transcript of the argument does not reveal, any objection to the admissibility of the interviews conducted by the police with Mr Vaughan, or the references by him in those to his prior convictions, prison sentence, and his being on parole. It is possible that it is intended in his defence to accept what the interviews establish, namely that he knew on 1 September 2004 that Ms Lewis was dead, where her body was located, and that her death had involved something similar to Mr Vaughan's own earlier offending; and that he will blame that knowledge of the offences on the nominated murderer, whom he says he helped. He may intend to rely on those parts of the transcripts in which he refers to various warnings he said he gave to the man he has accused of the murder, as evidence, in effect, that he had learned his lesson, and had warned the ultimate murderer not to attack women in the area where Mr Vaughan lived, because Mr Vaughan did not want to be a suspect. That is, Mr Vaughan said in his interviews that he had warned the nominated person, who repeatedly threatened to rape women he had seen, not to do so "around my house" because Mr Vaughan was making a new life and would be a suspect.[8] Counsel for Mr Vaughan may well want to put that defence to the Crown witness. Alternatively, it may be that there will be yet another application to exclude evidence, this time of what Mr Vaughan has said. (The argument before the first judge included at least one reference[9] to the content of an interview between Mr Vaughan and the police on 9 September 2004, and without objection to those contents).

[30] The interview of 8 September repeats that the murderer Mr Vaughan nominated had told him very early after the death about a body at Rosewood, had spoken beforehand of an intention to have forceful sexual dealings with Ms Lewis, whether with or without her consent, and that that person had been at "the crime scene the night the body was found".[10] Mr Vaughan said that the nominated murderer had telephoned Mr Vaughan at about 11.00 pm at night, asking Mr Vaughan to come there and pick him up. He had declined because he could not go out late at night, being on parole. He claimed to have told his parole officer about "it and all",[11] apparently describing the events where the nominated killer telephoned Mr Vaughan seeking assistance at night. Immediately after that, Mr Vaughan demonstrated knowledge in the interview that the police had found his shoes, with his DNA, in the burnt out car. Regarding that, Mr Vaughan said he had shoes lying everywhere around the yard, and that the nominated murderer had taken one of Mr Vaughan's shirts the prior week from the washing line. He also said that the nominated murderer had telephoned him, on the night the police had found the body, asking for help to leave that area (having smashed a car up), and that person had told Mr Vaughan to "go out towards where they found the body, and turn your first right before the police car."[12] That account showed specific knowledge of where the body was. In that interview he denied ever having been inside the deceased woman's house, said that a police officer had told him his shoes were found in the dead woman's burnt out car, and suggested that that had been done to "set him up".[13]

[31] During that interview, when blaming his nominated murderer, he described him as the "cunt that carried hammers around and knives, not me"[14]. When asked why he had brought the topic up of "hammers", he said he had been told by a policeman that the deceased's face had been smashed in with a hammer. He also implied a belief that there may be some forensic evidence of his semen on the deceased, and suggested that his nominated suspect might have gained access to his "cum sock next to his bed."[15] He said that was a sock upon which he would wipe his penis, after intercourse with his wife.[16] He claimed that his nominated suspected knew of the sock and its location, and that Mr Vaughan had raised the topic with the police because that suspect was clever, and Mr Vaughan assumed that if that person had "grabbed this Sheila", then that that was done for the purpose of "rooting it".[17] He explained the presence of his finger print on a piece of tape on the deceased's body as simply derived from his having given a role of tape to his nominated suspect, who subsequently put it on the body. He claimed to have numbers of rolls of tape lying around. He had difficulty explaining why, if his shoes were found in the deceased's car, and were deliberately put there by his nominated suspect for the purpose of Mr Vaughan's DNA being found in the car, his nominated suspected had then set fire to the car.

[32] Mr Vaughan was re-interviewed on 9 September 2004, and the transcript[18] of the earliest interview on that date records that the interview was at his request. Mr Vaughan withdrew what he said were false allegations, recorded in the earlier interviews, that he had been assaulted by police (at his house, apparently prior to being questioned on 1 September 2004), and volunteered that the person that he nominated as the murderer had admitted to him breaking into the deceased woman's home, knocking her down, and tying her up with Mr Vaughan's tape. That person had then allegedly visited Mr Vaughan, and had told Mr Vaughan that the nominated suspect thought he had killed Ms Lewis. Mr Vaughan said that other man had said he had put her body in a car, concealed in some bush, and asked for help in getting rid of it. It appeared to Mr Vaughan that Ms Lewis was dead when Mr Vaughan inspected her in the vehicle; and Mr Vaughan suggested the other man ring the police. Mr Vaughan did not describe what the other man said to that suggestion, and he then did help that man throw the body into the river. That other man had hit the body on the head with a hammer prior to disposing of it in the river. Then the other man suggested burning Ms Lewis' car, and went off to do that, and Mr Vaughan went into the deceased's home to remove fingerprints the other man had left in there.

[33] Mr Vaughan wore gloves on that visit, and wrapped a towel around his legs, to avoid leaving any of his DNA in the house, and he turned a tap on so that water would flood it. He asked the other man to burn the shoes Mr Vaughan had worn into the house. He conceded he owned the tape with which the body was bound, and that he had removed some tape from it, and that the deceased woman's clothes had been put into an industrial bin - apparently by the other man. Mr Vaughan also said that his fingerprints would have been on the hammer, because he had seized it to examine it at one stage.

[34] Mr Vaughan said that he had turned the tap on in the deceased's home to cover up his footprints and fingerprints, and those of his nominated suspect. His reason was that:**

"You know? Living next door and it happens next door, you know, and - you know? Youse check up my record and next minute boom. I'm the prime suspect."[19]

**He blamed the nominated suspect for failing to burn the deceased's vehicle properly.

[35] Mr Vaughan made the most number of references to his prior convictions, the circumstances of those, and his being on parole, in the first part of his first interview, and other references to those topics are much more sparsely interwoven in the later interviews. Those interviews in toto put forward those prior convictions as the reason he feared being a suspect in a sexual crime committed by his nominated offender, and which he had feared before the murder was committed. He appears also to have put those convictions forward as his reason for assisting in disposing of the body, that being his means of avoiding being wrongly suspected of murder. In all interviews he consistently identified the nominated Crown witness as the actual murderer.

[36] Mr Vaughan described his prior offence very early[20] in his first interview (on 1 September) with police, in these terms:**

"I got a five year sentence [indistinct]. Apparently I was supposed to have chucked her in the boot of - boot of my car and that, and drive her out and was going to rape her and that, but then I took her home. And then they got me for [deprivation] of liberty and attempt to rape. Just bringing back memories - you know - [indistinct]."

**That passage, if admitted into evidence with appropriate warnings about propensity reasoning, would explain why Mr Vaughan feared being a suspect in a sexual offence involving abduction, committed near his residence by his nominated suspect. That first interview also reveals that his parole officer had told him that the investigating police knew of his prior conviction. His realisation of that knowledge was the reason he gave for his asserted attempts on 1 September and 8 September 2004 to direct the police investigations at the real offender. The fact of those offences was his asserted reason in his later interviews for having helped to conceal the crimes.

[37] It will be difficult to exclude or edit those interviews without damaging Mr Vaughan's defence and without distorting the strength of the case against him. That case includes his knowledge that Ms Lewis was dead, and how she was killed, before her body was found, and the efforts he went to to conceal the identity of the person who had entered her home and abducted her. That Crown case does not depend on the jurors hearing the evidence of SM. A judge called on to consider the exclusion of parts of the recorded interviews will be performing a very different task from the judges who considered the admissibility of SM's evidence. In my opinion SM's evidence of the details would not add significant or substantial probative force to the other evidence (including his own statements) identifying Mr Vaughan as the person, or one of the persons, who abducted Nina Lewis, and also as the person (or one of the persons) who killed her. The conclusions the jurors draw on those issues will be affected by what they make of the Crown witness Mr Vaughan accuses, and about whom this Court was told almost nothing. I consider it would be inappropriate for those conclusions to be affected by the details of SM's evidence. Those details are not sufficiently probative of whether he murdered Ms Lewis or whether, as he claims to the police, he was only an accessory after the fact of her murder by another man who knew of Mr Vaughan's prior convictions and used that knowledge to get Mr Vaughan's help.

[38] It follows that I am not persuaded that the second judge, who unquestionably applied the correct test, must have come to the conclusion that SM's evidence was admissible. Accordingly, the learned judge did not misapply the correct test.

[39] HELMAN J: I have had the advantage of reading the reasons prepared by Jerrard J.A. I agree with them and with the answer he proposes to the only question left for our consideration.

[40] The test of admissibility of the evidence in question the learned second judge applied was that explained in Pfennig v. R. [1995] HCA 7; (1995) 182 C.L.R. 461. It is a very strict test requiring a trial judge to determine admissibility by applying the same test as a jury must apply in dealing with circumstantial evidence:**

Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here 'rational' must be taken to mean 'reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle. (pp. 482-483 per Mason C.J. and Deane and Dawson JJ.)

The question is not merely whether propensity evidence supports an inference that the accused is guilty but rather whether there is a rational view of it that is consistent with the innocence of the accused. If there is such a view then the judge must exclude it. Referring to the trial judge's task, Mason C.J. and Deane and Dawson JJ. explained:

But the trial judge, in making that judgment, must recognise that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence. (p. 485)

[41] In accordance with the principle so explained the second judge excluded the evidence of SM because it was - regrettably - of a sufficiently commonplace event to deprive it of the necessary probative value. As Scarman L.J., giving the judgment of the Court of Appeal in Reg. v. Scarrott [1978] 1 Q.B. 1016, said:

Positive probative value is what the law requires, if similar fact evidence is to be admissible. Such probative value is not provided by the mere repetition of similar facts; there has to be some feature or features in the evidence sought to be adduced which provides a link - an underlying link as it has been called in some of the cases. The existence of such a link is not to be inferred from mere similarity of facts which are themselves so commonplace that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration. (p. 1022)

Accordingly I conclude that there was no error in the second judge's determination unless it could be demonstrated that what SM was to speak about was not commonplace. On that point I see no proper ground for differing from his Honour's assessment.

[1] [1999] QCA 50; CA No 332 of 1998, 5 March 1999.

[2] [2006] HCA 4; B58 of 2005, 1 March 2006.

[3] R v O'Keefe [1999] QCA 50; [2000] 1 Qd R 564 at 566.

[4] Carne v R (1997) 94 A Crim R 249 at 272.

[5] CA No 337 of 1997, 26 February 2001.

[6] Page 27 of Exhibit A2 to the affidavit of Simone Bain.

[7] At page 26 of the transcript Exhibit A1 to the affidavit of Simone Bain, read on the reference. The first four pages of that transcript contain repeated references to Mr Vaughan being on parole, and why. Thereafter there a very few such references, in a 44 page transcript.

[8] Particularly at pages 26 and 27 of Exhibit "A1" to the affidavit of Simone Bain, in the interview of 1 September 2004.

[10] Those statements are at pages 10 and 11 of the transcript Exhibit A2 to Simone Bain's affidavit.

[12] Page 27 of the transcript of 8 September.

[18] Exhibits A3, A4, and A5 to the affidavit of Simone Bain.

[19] Page 33, Exhibit A4, transcript of interview 9 September 2000.

[20] At page 4 of Exhibit A1 to the affidavit of Simone Bain.