Cossu v the Queen
[2010] VSCA 167
•29 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. S APCR 0756 of 2008
| DAMIEN COSSU |
| v |
| THE QUEEN |
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JUDGES: | ASHLEY and WEINBERG JJA and COGHLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 November 2009 | |
DATE OF JUDGMENT: | 29 June 2010 | |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 167 | |
| JUDGMENT APPEALED FROM | R v Cossu (Unreported, County Court of Victoria, Judge Cotterell, 17 July 2008) | |
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CRIMINAL LAW – Applicant convicted of intentionally causing serious injury – Whether verdict unreasonable, and against weight of evidence – Whether there existed a reasonable hypothesis consistent with innocence – M v The Queen – Application for leave to appeal refused.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr P.F. Tehan QC with Mr W. E. Stuart | Slades and Parsons |
| For the Crown | Mr J. D. McArdle QC | Mr C. Hyland, Solicitor For Public Prosecutions |
ASHLEY JA:
I agree with Coghlan AJA.
WEINBERG JA:
I agree with Coghlan AJA.
COGHLAN AJA:
The applicant was presented in the Supreme Court at Melbourne on one count of attempted murder, one count of having intentionally caused serious injury and one count of affray. He was acquitted of the attempted murder, and the jury were unable to agree on the charge of affray. He was convicted on the count of intentionally causing serious injury. On that count he was sentenced to seven years and six months’ imprisonment. A non-parole period of five years was fixed.
The applicant now seeks leave to appeal against conviction. His sole ground is that the verdict of guilty was unreasonable, and against the weight of the evidence.
Factual background
On 24 March 2007, the applicant and one Robert Musso were both being held on remand in the Attwood Unit of the Metropolitan Remand Centre. The applicant occupied cell 14 on the ‘A’ side of the Unit, whilst Musso was in cell 29 on the ‘B’ side. Prisoners were permitted to move freely about, and between, the two Units.
At about 10.30am on the morning of 24 March 2007, Musso was having a shower in cell 29. His cell was connected by an internal door to cell 28. The applicant was seen to enter cell 28. The Crown case was that the applicant had gone from cell 28 into cell 29 via the internal door, and stabbed Musso a number of times to the upper body and shoulder whilst he was in the shower. The weapon was said to be a normal prison cutlery knife that the applicant had secreted in or near his cell,
and that he was alleged to have sharpened with sandpaper that was subsequently located in his cell.
The Crown alleged that, after he was stabbed, Musso ran from cell 29 into cell 28 and then out into the common area. There was closed circuit television (‘CCTV’) footage showing Musso trying to keep the applicant away from him by pushing against the door to cell 28 from outside. Musso then ran towards cell 27. The applicant was seen to follow Musso for a short distance, but he then turned back and went towards the ‘A’ side of the Unit where his cell was located. The Crown case was that the applicant at that stage disposed of the knife by hiding it in the rear section of a refrigerator which was in the common area near cell 8, and not far from cell 14.
When Musso went to cell 27, he became embroiled in a fight with the occupants of that cell. Musso was, at the time, naked and covered in blood. The CCTV footage showed the applicant, a short time later, returning to the common area close by a billiard table, near the doorway of cell 27. Musso was seen to emerge from cell 27 and rush towards the applicant. The applicant was then seen to engage in a fight with Musso. It was his involvement in that fight which led to the charge of affray, upon which the jury were unable to agree.
At about that time, prison officers finally intervened, and forcibly removed the applicant from the vicinity of cell 27.
Neither Musso, nor any of the other prisoners who were present at the time, were prepared to cooperate in any way with the authorities. They refused to make statements, and would not give evidence at the trial. The prosecution case was therefore largely based upon the CCTV footage, which was incomplete, the observations of the prison officers, none of whom saw what occurred in or about cell 29, and a body of scientific evidence. The Crown case was therefore essentially circumstantial.
Musso was treated at the scene and later taken to hospital. There he was found to be suffering from some seven stab wounds, a fractured left shoulder, bruising to the face, a fractured left cheek bone and a collapsed lung. It was the Crown case that the single most serious wound had been inflicted by the applicant in or near the shower in cell 29.
After the incident outside cell 27, the prisoners were locked in their cells and the water to the Unit was turned off. When the unit was searched, and forensic tests carried out, a small quantity of diluted blood was found in the water in cell 29. There was also a trail of blood from cell 29 to cell 28.
The knife to which I have earlier referred was found hidden behind a refrigerator located outside cell 8 on the ‘A’ side of the Unit. The applicant’s left thumbprint was found on the knife. The knife was bloodstained. A DNA profile matching that of Musso was recovered. Other mixed DNA was found on the knife and the evidence was that it was likely to have originated from both Musso and the applicant.
Another sharpened knife was found on the lid of a rubbish bin. Neither DNA, nor any fingerprints, were found on that knife. The CCTV appeared to show a prisoner named Simpas placing the knife in that position.
Musso’s blood was discovered on the inside pocket of the applicant’s shorts. The Crown case was that this was consistent with a bloodied knife having been placed in the applicant’s pocket.
As previously indicated, two grades of sandpaper were found in two different locations within the applicant’s cell. There was expert evidence led to the effect that at least one of those grades of sandpaper could have been used to sharpen a blade.
The prison officers who gave evidence had varying recollections of what they had seen. None of them observed a wound, or any blood on Musso’s back as he went from cell 28 to cell 27.
On the other hand, none of the prison officers saw a knife in Musso’s hand as he rushed at the applicant outside cell 27. Nor did any prison officer see a knife dropped, or a knife on the floor. The absence of any such sighting assumed some significance having regard to the evidence given by the applicant at the trial.
The applicant said that he had, indeed, gone to cell 29 because another prisoner had told him that Musso wanted to speak to him. There was an altercation between them, and as a result Musso was left bleeding from the face. That was said to be the explanation for the small quantity of Musso’s blood found in both cell 29 and cell 28.
The applicant acknowledged that he initially followed Musso towards cell 27. However, he claimed that he paused when he heard Musso, who was then well ahead of him, calling for a ‘blade’. The applicant then returned to the ‘A’ side of the Unit, where his cell was located.
The applicant said that he then saw a fight break out between Musso and the occupants of cell 27. He said that Musso must have received his stab wounds during the course of that fight. The applicant said that he approached the area of the billiard table, not far from cell 27, when Musso attacked him. He claimed that, when Musso emerged from cell 27, he had a knife in his right hand which was pointing downwards. The applicant said that he grabbed the knife with his left hand, and pulled it away. After seizing the knife, he swapped it over to his right hand. He swung the knife at Musso, hitting him in the shoulder. He was restrained by others, and the knife fell to the floor near the billiard table. Musso stood over him, throwing punches at him.
In cross-examination, the applicant agreed that he had stabbed Musso once, near cell 27. He claimed, however, that that wound was inflicted in self-defence. He insisted that Musso must have received nearly all of his stab wounds while in cell 27.
The applicant acknowledged that he had detailed knowledge of the entire brief of evidence against him, and that he had seen the 13 witnesses who gave evidence for the prosecution cross-examined in detail at the committal. He denied having constructed a highly intricate version of events that would counter all of the evidence assembled against him.
The applicant said that he had hidden the sandpaper in his cell because he intended to use it to fashion Paddle Pop sticks and matches into ashtrays. He had secreted the sandpaper to prevent other prisoners from stealing it from him.
In his closing address, counsel on behalf of the applicant argued that it was of critical importance, when considering the case against his client, that no wound could be seen on Musso’s back at the time he was outside cell 28, pushing on the door, seemingly to protect himself from the applicant.
As part of its case, the Crown called Mr Rodney McCourt, a forensic imaging analyst. He had analysed the CCTV footage, and produced enhanced versions of four images from that footage. Those images were made exhibits in the trial. The general effect of Mr McCourt’s evidence was that an area of ‘darkening’ could be observed on Musso’s left shoulder. However, it is fair to say that the ‘enhanced’ material was less than conclusive. Several of the images were obscured by the staircase. The weaknesses of that evidence were pointed out to the jury.
The argument advanced at trial, and repeated in this Court, was that the evidence as to the stabbing of Musso in the shower in cell 29 was tenuous, and could not support a verdict of guilty.
That argument was based, in part, upon the small amount of blood found in both cell 29 and cell 28. Moreover, no diluted blood was found in the shower itself. There was no evidence of any trail of blood leading from cell 28 to cell 27.
The defence case was predicated largely upon the proposition that, if Musso had been stabbed while showering in cell 29, he would have bled profusely. There would have been a large amount of blood found in the shower, or in cell 29, or at the very least, in cell 28. Instead, large quantities of blood were found in cell 27, consistent with Musso having been stabbed there, rather than in his own cell.
The defence also relied upon the evidence of the prison officers, particularly Mr Lachlan Walker, who had a clear view of Musso’s back when he moved between cell 28 and cell 27, but did not see any blood there.
It was submitted on behalf of the applicant that the evidence of the prison officers, that Musso was not, at any stage, armed with a knife while struggling with the applicant outside cell 27, was open to challenge. It was submitted that, in the main, the prison officers would not have had a clear view of what was happening at that time. In addition, at least three of them were demonstrably wrong, having regard to the CCTV, when they said that the applicant was in cell 27 at the time they arrived.
It was further submitted, in this Court, that the presence of the applicant’s thumbprint on the knife was explicable in the light of his evidence as to the struggle for the knife outside cell 27. There were any number of possible explanations for the finding of the knife hidden close by the applicant’s cell.
It was next submitted that the evidence regarding the sandpaper found in the applicant’s cell did not of itself establish any link with the knife, or how it came to be sharpened. Moreover, the very existence of a second knife showed that there were others who would have had the opportunity to stab Musso.
It was submitted that the applicant had given evidence, and that he had not been discredited in cross-examination. That was of particular significance, given that neither Musso, nor any of the occupants of cell 27 gave evidence. It would follow, so it was said, that there was sufficient evidence to found an inference consistent with innocence. That possible inference ought to have been sufficient to create a reasonable doubt.
The respondent submitted that there was nothing unsafe or unsatisfactory about this verdict. Plainly, this was a circumstantial case. The test to be applied in considering whether to set aside a conviction on this ground was that laid down by the High Court in M v The Queen.[1] There, a majority of the High Court, comprising Mason CJ, and Deane, Dawson and Toohey JJ, observed:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe”, or “dangerous or unsafe”. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[2]
[1](1994) 181 CLR 487.
[2]Ibid, 492-5 (citations omitted).
In De Gruchy v The Queen,[3] the High Court held that, when assessing the reasonableness of the verdicts:
The question [for the Court of Criminal Appeal] was whether, in the light of all the evidence, … the jury should have entertained a reasonable doubt as to the appellant’s guilt. And, given the circumstantial nature of the case, that question translated into the question whether there was a reasonable hypothesis consistent with the appellant’s innocence.[4]
[3](2002) 211 CLR 85.
[4]Ibid, 94.
In Libke v The Queen,[5] Hayne J expressed the test to be applied in relation to a ground of this nature as follows:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[6]
[5](2007) 230 CLR 559.
[6]Ibid, 596-7 (citations omitted).
The respondent submitted that the entire approach to this matter, taken on behalf of the applicant in this Court, was misconceived. It was submitted that Senior Counsel for the applicant had sought to deal with each individual piece of evidence against his client on a piecemeal basis, without appreciating that a circumstantial case had to be viewed as a whole.[7] Often enough, in a circumstantial case, there will be evidence of matters which, viewed in isolation, would suggest an inference compatible with innocence. However, as was said by Gibbs CJ and Mason J in Chamberlain v The Queen (No 2),[8] at the end of a trial, the jury must consider all of the evidence. In doing so, they may find that one piece of evidence resolves their doubts as to another.
[7]R v Hillier (2007) 228 CLR 618, 638.
[8](1984) 153 CLR 521, 535.
I have considered the evidence against the applicant in its entirety. I have concluded that it was properly open to the jury to be satisfied beyond reasonable doubt of his guilt of this offence. Indeed, when one has regard to the evidence as a whole, a compelling case was presented.
The inference of guilt, which the jury must have drawn, could be based upon a combination of facts. These included:
·that Musso fled naked from his cell, leaving the shower running, and attempted to prevent the applicant from following him out of cell 28;
·that a sharpened knife was located behind the refrigerator, outside cell 8, on the A side of the unit, not far from the applicant’s cell;
·that such a knife could have been fashioned using the sandpaper found in the applicant’s cell;
·that the knife bore the applicant’s thumbprint, and Musso’s blood;
·the ‘shiv’ found on the lid of the rubbish bin did not have any blood or DNA on it which showed any connection with the stabbing of Musso;
·that Musso’s blood was found inside the applicant’s left pocket, consistent with the sharpened knife having been in that pocket;
·that the applicant had gone to the area close by where the knife was later found immediately after leaving cell 28;
·that no prison officer saw a knife in either Musso’s hand, or that of the applicant, while they were struggling near cell 27;
·that the evidence of Mr McCourt was that a dark patch could be observed on the enhanced CCTV images of Musso’s back;
·that Musso’s attack upon the applicant outside cell 27 was consistent with his having shortly before been stabbed by the applicant; and
·that if the sharpened knife had been dropped near cell 27, as claimed by the applicant, there was no evidence to show how it could have got to where it was ultimately found.
I might add that the applicant’s explanation for the possession of the sandpaper in his cell could well have been considered by the jury to be implausible.
When regard is had to the evidence as a whole, I am of the view that this was a case where the jury could properly be satisfied beyond reasonable doubt of the guilt of the applicant. I am not persuaded that there was, in fact, any reasonable hypothesis consistent with innocence.
The application for leave to appeal should be refused.
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