Director of Public Prosecutions v Denis Mariona (a pseudonym)[1]
[2019] VSCA 155
•27 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0038
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| DENIS MARIONA (a pseudonym)[1] | Respondent |
[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the respondent and the reasons have been prepared in a form which omits identifying details.
---
| JUDGES: | MAXWELL ACJ, PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 April 2019 |
| DATE OF ORDERS: | 11 April 2019 |
| DATE OF JUDGMENT: | 27 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 155 |
| JUDGMENT APPEALED FROM: | DPP v [Mariona] (Unreported, County Court of Victoria, Judge Condon, 15 February 2019) |
---
CRIMINAL LAW – Appeal – Interlocutory appeal – Review of refusal to certify — Evidence – Admissibility – Circumstantial case – Coincidence evidence – Alleged offences committed in two separate periods — Evidence of animosity towards both sets of alleged victims — Evidence connecting accused with particular conduct — Whether probative of single perpetrator for both periods of offending —Whether capable of identifying respondent as perpetrator — Evidence of motive — Striking similarity — Evidence admissible — Any prejudice curable by directions — Appeal allowed — Evidence Act 2008 ss 98, 101, Criminal Procedure Act 2009 s 296.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A J Grant | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr P J Hannebery SC with Ms C B Hollingworth | Michael J Gleeson & Associates |
MAXWELL ACJ
PRIEST JA
WEINBERG JA:
Summary
The respondent, Denis Mariona, is facing a 22 count indictment. There are seven charges of arson, two charges of reckless conduct endangering life, one charge of extortion with threat to destroy property, 11 charges of criminal damage and one charge of causing injury intentionally (alternatively, recklessly). The offences are alleged to have been committed in two separate periods, against two sets of unconnected victims.
Charges 1–19 concern Mr Mariona’s alleged involvement in a series of events which occurred between August 2012 and January 2015 (‘the first period’). Charges 20–22 concern his alleged involvement in events that occurred between January and March 2017 (‘the second period’).
The prosecution submitted that the charges were properly joined in the one indictment and should be heard and determined by the same jury. In support of that contention, the prosecution filed a coincidence notice identifying evidence to be led in proof of both charged and uncharged acts. This evidence, it was said, would prove that a single person was responsible for all of the offending conduct in both periods, and that that person had a particular state of mind. That Mr Mariona was the offender would be established by evidence of his animosity towards both sets of victims, together with specific evidence connecting him with particular conduct.
The trial judge ruled that the evidence in question was not admissible as coincidence evidence. In her Honour’s view, the evidence — whether considered alone or together with other evidence to be adduced — did not satisfy the test of ‘significant probative value’ in s 98(1)(b) of the Evidence Act 2008.[2] Alternatively, such probative value as it had would be outweighed by the ‘considerable prejudice’ which would flow from the evidence of the two separate sets of events being heard together.[3] Her Honour ordered that there be separate trials.
[2]DPP v [Mariona] (Unreported, County Court of Victoria, Judge Condon, 15 February 2019), [35], [45] (‘Reasons’).
[3]Ibid [46]–[47], citing Evidence Act 2008 s 101.
Her Honour refused the prosecutor’s application to certify the ruling under s 295(3)(a) of the Criminal Procedure Act (‘CPA’). The prosecution applied under s 296(1) of the CPA for review of the refusal to certify. That application came on for hearing on 11 April 2019.
At the conclusion of argument, we announced that the application for review would be granted. We made orders allowing the appeal, setting aside the judge’s ruling and the order for severance and substituting a ruling that the evidence was admissible as coincidence evidence. We said we would give our reasons subsequently. These are those reasons.
The evidence
As we have mentioned, charges 1–19 relate to the first period. At that time, one of the alleged victims, AH, was a party to civil proceedings in the County Court. He was in a property dispute with a woman (‘KJ’) who, at the time of the alleged offences, was in a relationship with Mr Mariona.
Eleven of the charges concern damage or destruction — in many instances, by fire — of property belonging to AH and members of his family. Six of the charges allege acts of criminal damage to the grave of AH’s father (‘the grave’). One charge alleges extortion, in the form of a threat made to AH’s mother to destroy her house. Separate charges relate to the intentional destruction of that house by fire.
Charge 7 alleges that an improvised explosive device (‘IED’) was placed in a garage belonging to AH. As will appear, the charges arising from the second period also include a charge alleging the placing of an IED.
The second group of offences targeted two men (‘AG’ and ‘LL’) who had made statements implicating Mr Mariona in the commission of criminal offences. Charge 20 alleges the placing of an IED in a letter box belonging to AG. Charges 21 and 22 allege the assault of LL in his home. (Intentionally causing injury and recklessly causing injury are charged in the alternative.)
The evidence sought to be relied on as coincidence evidence was grouped by the prosecution into five categories, respectively comprising evidence of:
(a) damage, or threats of damage, by fire or otherwise to property belonging to AH and/or members of his family;
(b) the sending of threatening SMS messages from Telstra payphones to family members of AH, and to LL;
(c) the writing of threatening notes, all having similar content, written with a texta marker and left in locations where they were likely to be found by a person whom it was sought to intimidate;
(d) the placing of an IED in the homes of AH and AG respectively; and
(e) the placing of homemade crucifixes, one bearing the name of AH and the other bearing the name of LL, in each case in a location where the named person was likely to see it.
The prosecution relied on a number of similarities within and across the various categories of conduct which, it was contended, were capable of proving that it was a single person who had engaged in all of the conduct. Particular emphasis was placed on the IEDs and the crucifixes. The features of those separate events were said to be ‘strikingly similar and extremely unusual’.
Each IED consisted of an active explosive and two live detonators, connected by wires to a power source (in one case, a cigarette charger adaptor plug; in the other, a Nokia mobile phone). Expert evidence established that both devices were fully functional and capable of exploding.
As to the crucifixes, the prosecution relied on the following similarities:
(f) each crucifix was made of wood and painted white;
(g) each crucifix had the name of the alleged target written on the crossbar in black capital letters, and had a large black question mark written on the upper right of the cross;
(h) each crucifix was left in a location where it was likely to be seen by the person named on it, in that:
(i) the first crucifix was left close to the grave; and
(ii) the second was attached to a tree by the side of a road regularly used by AG.
As to the threatening messages, the prosecution relied on similarities in the language used (especially the word ‘dog’) and the abbreviations. The evidence comprises:
(i) a handwritten note left under the mat at AH’s mother’s home, stating:
‘Get [AH] to go away or we will fire bomb your house’;
(j) a note left inside the glove box of a vehicle belonging to AH’s nephew, stating:
‘Am goin to get u fuckin dog’;
(k) a message received by AH’s daughter on her mobile phone, stating:
‘It wont b over till [AH] is in the ground dont think the police cam acros the road will save him the best is yet to come for u dogs’;
(l) a bag left near the grave marked with the words:
‘The best is yet to come for u dog’;
(m) a letter attached to the front gate of the house belonging to AH’s nephew, stating:
‘The next bullet you get will be in your guts you fuckin dog’.
(n) an SMS message sent to LL, which read:
‘That’s just a taste next we burn ya house down u fuckindog’.
The prosecution argument was that, in the language of s 98(1), the ‘similarities in the events [and] in the circumstances in which they occurred’ were such that it was ‘improbable that the events occurred coincidentally’. The similarities were such, it was said, that a jury could be satisfied that they were all the acts of the same person.
The prosecution argued, further, that there was evidence of motive which independently connected Mr Mariona with the persons targeted by the conduct. As already noted, AH was involved in litigation against Mr Mariona’s partner. The prosecution relied on evidence that Mr Mariona:
(o) had lodged a caveat on the disputed property;
(p) had spoken threateningly to AH’s son on two occasions — once at the County Court, during a directions hearing in those proceedings, and again in Lilydale some days later, when he used the term ‘dog’; and
(q) had discussed the property with KJ in the course of a recorded telephone conversation.
This evidence was said to show that Mr Mariona had taken an active interest in the property and the proceedings, and that he held a grievance against AH for pursuing the case against his partner. That attitude was said to be wholly consistent with the obviously intimidatory character of the conduct alleged in charges 1–19.
The defence submission focused on what was said to be the evidence of motive. As recorded in the judge’s reasons, the defence submission was that the evidence was ‘weak and speculative’. According to that submission:
The scant nature of the evidence of motive does not permit [a] conclusion beyond speculation as to the depth of any animus towards any person, the period over which any such motive might have existed nor the existence of any capacity or desire to commit the actions alleged in order to achieve the ends suggested by the prosecution argument.
The defence further argued that to admit in a trial of charges 1–19 the evidence relating to the events of the second period would necessarily cause unfair prejudice by informing the jury of the otherwise irrelevant criminal proceeding against Mr Mariona, in which AG and LL were witnesses.
The judge’s decision
Her Honour was satisfied that there were ‘clear similarities in the acts and events sought to be relied upon … such that a jury could safely infer that the same individual perpetrated each of the acts’.[4] In her Honour’s view, however, that evidence could not be regarded as being of significant probative value.[5] This conclusion was repeated later in the reasons but not further explained.
[4]Reasons [19].
[5]Ibid.
Her Honour said:
As already made clear, the prosecution relies upon various pieces of circumstantial evidence as to motive in order to allow the jury to draw such an inference. In my view, the coincidence evidence, either by itself or when regard is had to other evidence to be adduced, is not sufficient to satisfy the test of being significantly probative.
While it is clear from the decision in CW v The Queen[6] that evidence of motive can give rise to coincidence reasoning, CW was a case where in relation to at least one of the allegations of arson, there was independent or objective evidence linking the accused to that allegation. As already observed earlier in my ruling, insofar as the majority (if not all) of the charged acts are concerned here, absent motive, there is no independent nor objective evidence linking the accused to any of the allegations.
The evidence of the motive clearly has some relevance, however that is not the test that I am bound to apply. As expressed in the course of oral argument with counsel for the prosecution, there is a risk that asking the jury to infer that the accused man is the perpetrator by dint of the motive, involves to my mind an element of speculation. Further, it could possibly be prone to bootstrap or circular reasoning. Thus, although it may be relevant, it falls well short of having significant probative value.[7]
[6][2010] VSCA 288, [21] (Maxwell P, Buchanan and Neave JJA).
[7]Reasons [43]–[45].
In the alternative, her Honour considered that for the jury to hear about the criminal proceedings against Mr Mariona would have a ‘considerable’ prejudicial effect. She accepted the defence submission that no direction to the jury, no matter how forceful, could adequately deal with that prejudice.[8]
[8]Ibid [47].
Consideration
In our view, the coincidence evidence was very powerful. Taken as a whole, it had very significant probative value on the issue of whether the offending in the two periods was the work of a single perpetrator. Proof of that fact was an essential step in the Crown case.
As the prosecution argued, the use of an IED and a crucifix in each of the two periods was a highly unusual feature. It was properly characterised as a ‘striking similarity’[9] between the two sets of offences, which could not be explained by coincidence. Nor could coincidence account for the obvious physical and linguistic similarities between the various threatening messages sent to the separate sets of victims.
[9]Cf Tognolini v The Queen (2011) 216 A Crim R 188.
Having established that there was a single perpetrator, the prosecution must of course prove that it was Mr Mariona who was the perpetrator. There is some evidence linking him to particular acts: his use of the word ‘dog’ in speaking to AH’s son is capable of linking him directly to the messages which repeatedly used that word; there is CCTV footage of Mr Mariona cutting pieces of timber and carrying what appears to be a can of white paint; and a search of his home located screws of the same type and brand as those used to attach the second crucifix to the tree.
It is the evidence of motive, however, which links Mr Mariona to the victims. The evidence of Mr Mariona’s active interest in the property the subject of the dispute with AH, and his hostile exchanges with AH’s son, especially the exchange which occurred at the Court, was — taken together with the evidence of the intimidatory conduct which took place at around that time — significantly probative of the fact that it was Mr Mariona, and no one else, who had engaged in that conduct.[10] Although there was no independent evidence of animosity towards AG and LL, the fact that Mr Mariona was facing the criminal proceedings in which they were to give evidence against him provided an obvious basis from which motive could be inferred.
[10]See De Gruchy v The Queen (2002) 211 CLR 85, 92–3 [28] (Gaudron, McHugh and Hayne JJ).
With respect to her Honour, it is neither speculative nor a species of circular reasoning to rely on evidence of motive to link an alleged perpetrator with proven conduct. On the contrary, that is the conventional basis on which evidence of motive is admitted, that is, to prove the identity of the offender. To show that an accused person had ‘motive or enmity’ against the victim of a criminal offence can have significant probative value on the issue of identity.[11]
[11]See DPP v Mariona (a pseudonym) [2019] VSCA 107, [27]–[28] (Maxwell P and Weinberg JA).
For these reasons, in our view, the evidence sought to be relied on as coincidence evidence had substantial probative value. Any risk of unfair prejudice flowing from reference to the criminal proceedings was, we thought, well capable of being managed by judicial directions.
Given the significance of the coincidence evidence, it was not reasonably open to her Honour to refuse to certify.[12]
[12]See Frazier (a pseudonym) v The Queen [2017] VSCA 370, [8] (Maxwell P and Kyrou JA).
4
0