R v Cogley - [2000] VSCA 231

SUPREME COURT OF VICTORIA

COURT OF APPEAL

Nos.141 of 2000
228 and 229 of 1998

THE QUEEN
	v.
SHANE ALEXANDER COGLEY

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JUDGES:	WINNEKE, P., CHERNOV, J.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 November 2000
DATE OF JUDGMENT:	12 December 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 231

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Criminal law – Murder – Whether publication of information concerning prior trial on Internet site ground for discharge of jury – Admission of evidence at trial effectively agreed to or not objected to by counsel – Applicant bound by counsel’s decision – Whether miscarriage of justice.

Sentence – Obtaining, and attempting to obtain, property by deception – Handling stolen goods – Whether applicant lost benefit of parole period.

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APPEARANCES:	Counsel	Solicitors
No.141 of 2000 For the Applicant	Ms L. Lieder Q.C.	Valos Black & Associates
For the Respondent	Mr. G. Flatman, Q.C., D.P.P. and Mr. D. Gurvich	P.C. Wood, Solicitor for Public Prosecutions
Nos.228 and 229 of 1998 For the Applicant	In person
For the Respondent	Mr. D. Gurvich	P.C. Wood, Solicitor for Public Prosecutions

WINNEKE, P.:

I agree with Chernov, J.A.

CHERNOV, J.A.:

On 13 May 2000 the applicant was convicted of the murder of Kevin Hitchens on 28 June 1997 in King Street Melbourne. After hearing a plea in mitigation made on his behalf, the court sentenced the applicant on 29 May 2000 to 18 years’ imprisonment. The learned sentencing judge fixed a non-parole period of 14 years. The applicant had admitted 49 convictions from 14 court appearances between 5 June 1981 and 24 July 1995. He now seeks leave to appeal against that conviction.

On 6 April 1998, the applicant pleaded guilty in the County Court at Melbourne to one count of obtaining property by deception and not guilty to one count of attempting to obtain property by deception. After a trial, the applicant was convicted on that count. On 22 June 1998, he pleaded not guilty in the County Court at Melbourne to five counts of handling stolen property (motor cars) contrary to s.88(1) of the Crimes Act 1958, and after a trial, the jury returned a verdict of guilty on counts 3, 4 and 5. On 15 September 1998, after hearing a plea in mitigation made on his behalf, the court sentenced the applicant in respect of the two sets of offences to a total effective sentence of 3½ years’ imprisonment and fixed a non-parole period of 2 years. The sentencing judge declared that 617 days shall be the period of pre-sentence detention in respect of those offences. The applicant sought leave to appeal against those convictions, but on 23 November 2000, he abandoned those applications. He seeks leave, however, to appeal against the sentence that was imposed on him by the County Court.

The application for leave to appeal against conviction for murder and the application for leave to appeal against sentence came on for hearing before us.

Application relating to the murder conviction

I turn first to consider the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cogley

Details

AGLC: R v Cogley [2000] VSCA 231
Case: [2000] VSCA 231
Decision Date: 12 December 2000

CaseChat Overview and Summary

The case of R v Cogley involved a defendant facing a charge of murder. The matter was heard in the Court of Criminal Appeal. The primary issue for the court was whether the publication of information regarding a prior trial on an internet site constituted grounds for discharging the jury. Another issue was whether the admission of such evidence at the trial was effectively agreed to or not objected to by the counsel, and if the applicant was bound by counsel's decision. The final issue was whether the circumstances amounted to a miscarriage of justice.

The court examined the principle that an accused is bound by the decisions of their counsel, especially when those decisions pertain to procedural matters such as the admission of evidence. The court also considered whether the publication of the prior trial information on the internet constituted a substantial or unsafe risk of prejudice that would lead to a miscarriage of justice. The court held that the applicant was bound by counsel's decision not to object to the evidence, and that there was no miscarriage of justice in this instance. The court further determined that the publication of the information on the internet did not constitute a substantial or unsafe risk of prejudice to the applicant.

The Court of Criminal Appeal dismissed the appeal. The court found that the applicant was bound by the decisions of his counsel and that there was no miscarriage of justice in the circumstances. The court concluded that the admission of the evidence did not unfairly prejudice the applicant and did not result in a miscarriage of justice. Consequently, the conviction and sentence of the applicant remained intact.

Orders