Note on R v Dewey  QCA 161
By coincidence, the day after the Current Legal Issues Seminar on propensity evidence the Court of Appeal handed down R v Dewey  QCA 161 which affirmed the correctness of the admission of certain propensity evidence. The decision is an illustration of the liberal application of the Pfennig test by the Court of Appeal of Queensland that Professor Hamer commented upon in his paper.
In R v Dewey , the indictment contained three counts of armed robbery of service station attendants that were alleged to have been committed by the appellant. Two of the robberies occurred on the one night two hours apart, one at Beenleigh and the other at Mt Gravatt. The third robbery was committed eight days later at Coorparoo.
The robberies were similar in that they all involved a man entering a service station late at night and then demanding money from the lone attendant at knife-point. The CCTV from each robbery showed that a similar looking person had committed each of the three robberies, but could do no more than that.
There were some differences in the robberies. In the first robbery, a bandana was used to disguise the robber’s face after he had initially entered the store. In the second robbery, the robber did have a bandana around his neck and was wearing similar clothing to the robber in count 1, but he did not attempt to disguise his face. In the third robbery, the robber did not have a bandana and he did not attempt to cover his face. The most unusual feature of the robberies was a blue coloured knife being used for robberies 1 and 3. That unusual knife was not observed in robbery 2.
The appellant had been caught soon after the third robbery in grey ute that was consistent with the getaway car for the third robbery. He was in possession of a significant quantity of cash, clothing that matched that used by the robber and a blue coloured knife. Therefore, there was a strong case in relation to the third robbery.
The Crown case at trial was if the jury were satisfied of the appellant’s guilt on count 3, then they could use evidence of the appellant’s commission of that armed robbery, in combination with the cross-over of similar features between the robberies to determine that the appellant had also committed the other two robberies eight days earlier.
McMurdo JA (with whom Gotterson JA and Douglas J agreed) held that a proper application of the Pfennig test permitted the jury to use the evidence of the three robberies in that way. McMurdo JA also noted that the model directions in Bench Book direction 52 had not been given. The absence of that direction was not an appeal ground and the Court held that defence counsel had made a considered forensic choice not to seek such a direction and no miscarriage of justice arose.
Benedict Power, Barrister