News: Pfennig back in court

A long-running Adelaide mystery, the 1983 disappearance of 11 year-old Louise Bell, is currently being explored in a Supreme Court murder trial. The Advertiser reports a prosecutor’s description of an alleged conversation between prisoners at Mt Gambier Prison:

Pfennig started to talk about Michael Black, how he had murdered him,” she said. “He said he couldn’t tell anyone where Michael Black was ‘because there is a chick there’. “The other prisoner asked ‘what chick?’ and Pfennig replied ‘Bell’.”

If true, this amounts to an admission by Dieter Pfennig, not only to his responsibility for Bell’s death, but also to the correctness of a 1995 High Court ruling upholding Pfennig’s conviction for the murder of Black, who vanished near the Murray River in 1989. That judgment is arguably the Court’s most significant (and most controversial) ruling on evidence law.

Although the evidence directly linking Pfennig to Black’s murder was weak – in short, he was the last person to see him alive – the High Court upheld the conviction by endorsing the jury’s reliance on an indirect but powerful piece of circumstantial evidence: Pfennig’s plea of guilty to the abduction and rape of another boy a year later. In doing so, the Court set out a unique Australian common law test for the admissibility of so-called ‘propensity evidence’ – ‘that there is no reasonable view of the evidence consistent with the innocence of the accused’ – a test that seems to require the trial judge to decide whether or not the accused is guilty, before letting the jury repeat that task. The Court’s ruling not only led to decades of debate in Australian courts but also Pfennig’s sentence of life imprisonment, during which he allegedly confessed his link to the disappearance of Bell.

The interesting question of whether or not the evidence of Pfennig’s crimes against the two boys would satisfy the ‘Pfennig test’ for admissibility of propensity evidence in his trial for Bell’s murder is a moot one for three reasons. First, South Australia recently joined nearly all Australian jurisdictions in replacing the unworkable Pfennig test with a statutory test of weighing up the costs and benefits of such evidence, in line with McHugh J’s concurrence in the Court’s 1995 judgment. Second, even at common law, the evidence about the death of Black would likely be admissible for another reason: to make sense of his alleged confession at Mt Gambier Prison. Third, Pfennig’s crimes are simply too notorious to be plausibly kept from the Supreme Court, in part because of the spotlight cast on his case by the High Court’s 1995 ruling.

The more pertinent question is whether Pfennig can be tried fairly for Bell’s murder. As McHugh J observed in 1995, once Pfennig’s history is known:

it would require a superhuman effort by the jury to regard [Pfennig] as other than a person of depraved character whose uncorroborated evidence, whether or not he was guilty, could not be acted upon except where it supported the prosecution case.

The apparent solution in the current trial is for Pfennig to be tried, not by a jury, but by a judge. The Supreme Court judge called back from retirement to play the role of McHugh J’s ‘superhuman’ is Michael David, who was previously a criminal barrister whose clients included alleged war criminal Ivan Polyukhovich (after the High Court’s upholding of retrospective war crimes legislation) and Henry Keogh (whose conviction for murdering his wife was recently overturned as a miscarriage of justice.) The Acting Justice will be well aware of the dangers of miscarriage of justice in the current trial: three decades ago, a different man, Raymond Geesing, was wrongly convicted of Bell’s murder, based largely on an alleged confession to fellow prisoners.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.