R v Cogley
[1999] VSCA 123
•17 August 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 326 of 1998
THE QUEEN
v
SHANE ALEXANDER COGLEY
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JUDGES: BROOKING, TADGELL and BUCHANAN, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 28 and 29 July 1999 DATE OF JUDGMENT: 17 August 1999 MEDIA NEUTRAL CITATION:
[1999] VSCA 123 1st Revision 22 October 1999
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CRIMINAL LAW – Murder – Causing serious injury intentionally – Propensity evidence – Probative value outweighed by prejudicial effect – Joinder of counts – Charges part of a series of offences of a similar character – Proviso not applicable – Crimes Act 1958 (Vic.) ss.398A, 568(1).
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APPEARANCES: Counsel Solicitors For the Crown Mr G. Flatman Q.C., D.P.P. P.C. Wood, Solicitor for and Mr P. Kidd Public Prosecutions For the Applicant Miss L. Lieder Q.C. and Valos Black & Associates Mr M. Kowalski
BROOKING, J. A.:
I concur in the judgment of Buchanan, J.A.
TADGELL, J. A.:
I have had the advantage of reading the reasons for judgment that Buchanan, J.A. has prepared. I agree with them and with the disposition of the application that he proposes.
BUCHANAN, J.A.:
On 16 December 1998 after a trial in the Supreme Court a jury found the applicant guilty of intentionally causing serious injury (count 1) and murder (count 2). A plea was made on behalf of the applicant without the benefit of any instructions to his counsel from the applicant. The applicant was sentenced to be imprisoned for a term of four years on count 1 and to a term of 18 years on count 2. The applicant was a serious violent offender within the meaning of s.6B(3) of the Sentencing Act 1991. The judge directed that one year of the sentence imposed on count 1 not be cumulated on the sentence on count 2. Accordingly the total effective sentence was 21 years. The sentencing judge fixed a period of 16 years before the applicant was to be eligible for parole.
Before the trial commenced an application was made by the applicant to sever counts 1 and 2. The application was refused. His Honour concluded that as the evidence in respect of count 1 was admissible on count 2 and vice versa, the joinder of the counts was authorized by the first limb of Rule 2 of Schedule 6 to the Crimes Act 1958, that is, that the counts could be joined as they arose out of the same facts.
In arriving at that conclusion his Honour considered the case which the Crown would attempt to establish and the likely defence of the applicant.
The Crown case on count 1 perceived by the trial judge was that a burglary was committed at the house of Dragan Stamenkovic, a friend of the applicant. Two days later the applicant and Stamenkovic entered the residence of another friend, Mohammed Najmeddine, and woke him by jumping on him, kicking and punching him. The applicant pistol-whipped Najmeddine, asked him how he could rob his friends and directed him to drive his car to the house of Stamenkovic. In the car a gun in the possession of Stamenkovic accidentally discharged. A number of persons were present at Stamenkovic's house. The applicant pressed Najmeddine to disclose the whereabouts of the stolen goods. Najmeddine protested his innocence. The applicant took out a .25 calibre pistol and held it to Najmeddine's head. He said "You think we're joking?", and shot Najmeddine in the leg. He then put the pistol to Najmeddine's eye, but desisted from any further threats upon one of the bystanders intervening. The applicant said "Sorry, mate" to Najmeddine and left as if nothing had happened.
The Crown case in respect of count 2 was that the applicant shot and killed Kevin Hitchens in King Street, Melbourne, at about 5.30 in the evening some 10 days after Najmeddine was shot. Hitchens was a friend or acquaintance of the applicant, and they spent much of the day of the murder in each other's company. The applicant, Hitchens, Stamenkovic and a woman friend, Amanda Watson, travelled by car to King Street. The applicant and the deceased argued before and during the journey to King Street. The Crown alleged that the applicant killed Hitchens by shooting him in the head. After the shooting the applicant fled the scene. The following month he gave an account of the death to a doctor, stating that Hitchens committed suicide. Similar statements were made by Stamenkovic and Ms Watson. The Crown alleged that the account of suicide was the product of an agreement between Stamenkovic, the applicant and Ms Watson. The trial judge described the applicant's line of defence in these terms:
"Mr. Hitchens was upset and killed himself. Why would a man kill a friend – even if there had been some minor argument between them – in a cold blooded way, in the presence of other friends and of a potentially substantial number of eye-witnesses in a public street?"
The trial judge concluded that the evidence on count 1 was admissible in respect of count 2 and the evidence on count 2 was admissible in respect of count 1. He said:
"In my opinion the evidence of Mr. Cogley's involvement in the offence alleged by count 1 is logically relevant to facts in issue in count 2. It is relevant to the identity of the person who fired the fatal shot. It demonstrates the likelihood that, if Hitchens did not suicide, Mr. Cogley rather than Mr. Stamenkovic fired the fatal shot. It is relevant to rebut the defence of suicide. It provides an answer to the related question – that is, who would shoot a friend over some minor matter in a public street without apparent consideration of the consequences. It addresses motive – that is by disclosing Mr. Cogley's tendency to react disproportionately to conduct by a friend or associate which he perceived to involve lack of trust or loyalty. It shows his possession of, familiarity with and readiness to use a weapon of the type used in Hitchens' killing.
In my opinion further, the evidence of Mr. Cogley's involvement in the offence alleged by count 2 is logically relevant to the fact in issue in count 1. It tends to support Mr. Najmeddine's evidence. It demonstrates the likelihood that, as between Mr. Cogley and Mr. Stamenkovic, the person who fired the gun was probably Mr. Cogley. It shows, in the reverse chronological order, Mr. Cogley's aberrant response to perceived lack of loyalty or trust, regardless, in Mr. Najmeddine's case, of the perception having any foundation in fact. It shows his possession of, familiarity with and willingness to use a weapon of the type used in Mr. Najmeddine's wounding."
His Honour said that the evidence in each incident powerfully bore upon the facts in issue. He concluded:
"It is my further opinion that the extent of probative force of the propensity evidence is in each case very high. It is so great that, consistent with s.398A, it is just to admit the evidence notwithstanding its prejudicial effect."
The Crown led evidence in support of the case which had been anticipated by the trial judge in ruling upon the severance of the counts. The defence case was largely founded upon the evidence of the applicant. He said that in the evening before Najmeddine was shot, the applicant, Najmeddine, Dragan Stamenkovic and others met at the Mercury Lounge at the casino and repaired to Najmeddine's house early the next morning to drink, talk and listen to music. There was an argument between Najmeddine and Stamenkovic, the latter accusing the former of committing a burglary at his house. Stamenkovic punched Najmeddine. The applicant, Hitchens and some women returned to the casino while Najmeddine drove Stamenkovic to Stamenkovic's house. Hitchens and the applicant drove to Stamenkovic's house from the casino. About 10 people were there. Stamenkovic and Najmeddine resumed their argument about the burglary. Again Stamenkovic punched Najmeddine. Najmeddine began fighting with Hitchens. A gun was produced. The applicant entered the fray to take the gun from Najmeddine. In the struggle the gun was fired. It was not fired by the applicant. At no time did the applicant have the gun in his possession. Afterwards Najmeddine asked for his gun.
As to the death of Hitchens, the applicant said that in the morning of the day he was shot the applicant, Hitchens, Amanda Watson, Stamenkovic and his brother, two dancers and two other girls travelled from a nightclub in town to the residence of the dancers in St. Albans or Sunshine. Hitchens appeared distressed and upset about his relationship with a woman. Hitchens was playing with a gun which the applicant was "pretty sure" was the gun Hitchens had taken from Najmeddine. Late in the afternoon the applicant, Hitchens, Dragan Stamenkovic and Amanda Watson went to the applicant's car on leaving the dancers' residence. Hitchens threw the gun over the roof of the car to the applicant, who threw it back. Hitchens again threw the gun to the applicant. Eventually Hitchens threw the gun into the middle of the carpark. The applicant did not pick it up. In the car Hitchens waved the gun about and threw it forwards. The gun hit the dashboard and landed in Stamenkovic's lap. The car was in King Street. The applicant knew there were surveillance cameras in King Street which operated 24-hours a day. The applicant yelled at Hitchens and pulled the car over, and told everyone to get out of the car. The applicant called Hitchens a "fucking idiot" and a "weak cunt". The passengers alighted from the car. Stamenkovic threw the gun into the car. The applicant took the gun and approached Hitchens. He said in evidence:
"Well, I said to Kevin, I said, 'Here', you know, 'take your fucking gun' and there was all these people zipping in between us because there was a fair amount of people around, you know, standing around and walking around."
The applicant said that Hitchens did not want to take the gun. He continued:
"I started bagging him, you know, calling him a fucking idiot and all that again and I threw it on the ground ... He was standing with his back to the wall and sort of – and a bit of an angle facing me. My back was to the car. ... He was upset because I was bagging him ... He looked like he was crying, you know. ... He was saying, you know, 'Don't call me a fucking idiot' and stuff like that. ... I gave him a bit a bagging and started walking back to the car."
The applicant said that as he was walking towards his car he heard shots being fired.
He said:"Well, there were about three shots in succession. ... I turned around ... I saw Kevin with the gun in his left hand. It was aimed sort of towards me ... Well, I mean at the time I didn't know what he was doing with it, but I don't think he was firing shots at me ... He was saying 'I'm not an idiot', you know, ... 'I am not a weak cunt'. They were things I was saying to him and things he was reiterating back to me ... and then he put the gun to his head and he said, he said, 'I am not a weak cunt', he pulled the trigger. ... He was losing a lot of blood from his head. It was just spurting out of his head. To me he looked instantaneously dead."
The applicant said that Stamenkovic had the gun in the car. The applicant and Stamenkovic got into the car, picked up Ms Watson some 10 to 20 feet away and drove off. The applicant stopped at a bridge near the casino and Stamenkovic threw the gun from the bridge.
At the conclusion of the evidence counsel for the applicant renewed his application to sever the presentment. He said that it was clear from the evidence that the burglary of Stamenkovic's house provided no link between the counts as a motive. The applicant may have believed that Najmeddine committed the burglary, but there was no evidence that he thought Hitchens played any part in it. Again the application was refused, and again the basis of the ruling was that if the jury found the applicant guilty of one count, they could use the evidence led in respect of that count of similar aspects of the offences in considering the other count.
In his charge his Honour told the jury that the Crown said that if the jury was satisfied as to the applicant's guilt on one count, they would be entitled to use evidence led in respect of that count in considering the other count. He said that the Crown justified that approach by the existence of what the judge said were "hallmark features" of the applicant's conduct on the occasions upon which the offences occurred. He said:
"According to the Crown's argument the hallmarks of each incident were that Mr. Cogley turned on an apparent friend or associate, a member ... of the little group ... that he turned on a friend or associate in a dramatic overreaction to some slight. By that I mean the burglary of a friend's house in one case, a dispute involving a gun in another case. And that in each instance he used a gun of the same calibre to inflict bodily injury upon the erstwhile friend, whether it be injury or death which resulted. This conduct occurred before a number of potential witnesses. In one case it was in a private house and in another instance in a street, but it occurred in the presence of witnesses and with an apparent total disregard of the consequences of possible identification, whether it be identification by the people in Bent Street or people in King Street. Further, in each case Mr. Cogley assumed a dominant role and Dragan Stamenkovic a subsidiary or lesser role. They are the matters that the Crown says are the hallmark features.
If you were satisfied, considering the evidence relevant to one of the charges, that Mr. Cogley was guilty of that charge, and if you were satisfied in connection with that charge of the presence of what the Crown has described as hallmark features of the conduct of Mr. Cogley, it will be open to you, if the evidence in respect of the other charge satisfied you of the presence of those same features, to use that evidence as going to show – and now I come to the limited purposes for which it could be used – the relationships within the group: the assumption of particular roles by Mr. Cogley and Mr. Dragan Stamenkovic. You could use it, again, it would be a matter for you, as rebutting the suggestion of accidental injury or death – depending upon which was the second matter you were considering; or as going to show the identity of the person who probably inflicted the injury – assuming you were satisfied that it was not accident or suicide. That could be so if you were satisfied that the features relied upon by the Crown were hallmark features, that they were hallmark features referable to Mr. Cogley and that they were not mere coincidence.
.... If ... you accepted the truthfulness of Mr. Najmeddine's evidence that Mr. Cogley beat him and then shot him, you would need to carefully consider whether the evidence showed the hallmark features for which the Crown contends. If you were satisfied that coincidence could be excluded, if you were satisfied that the similarities existed because it was Mr. Cogley's hand at work in each instance, then you could use those features for the purposes I have described."
The first three grounds of appeal complain about the refusal to sever the counts and the directions to the jury as to the use they could make of evidence led in respect of one count in considering the other count. The grounds of appeal are:
"1. That the learned trial judge was in error in allowing count 1 on
the presentment to be heard together with count 2.2.
That the learned trial judge was in error in instructing the jury that evidence in respect of count 1 could be heard as part of count 2 and that the evidence in respect of count 2 could be heard as part of count 1.
3.
That the learned trial judge was in error in telling the jury that they could use the evidence in respect of count 1 in their consideration of count 2 and evidence in respect of count 2 and their consideration of count 1, as showing a propensity to violence."
Propensity Evidence
Both the ruling and the direction depended upon the conclusion that the evidence concerning each victim was admissible on the count concerning the other. His Honour accepted that if evidence relating to one count was considered in relation to another count, it was propensity evidence as it disclosed the commission of another offence. See R. v. Pfennig (1995) 182 C.L.R. 461, at 464-5 per Mason, C.J., Deane and Dawson, JJ. As the applicant was arraigned in June 1998, s.398A of the Crimes Act applied. See s.588 of the Act. Section 398A provides, so far as is presently relevant:
"(2) Propensity evidence relevant to facts in issue in the proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence. (3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2)."
The evidence on one count was only admissible in respect of the other count if its probative value was sufficiently great to make it just to admit it notwithstanding that it was prejudicial to the applicant in tending to show that he was guilty of another offence. See R. v. Best [1998] 4 V.R. 603 at 607 per Callaway, J.A. In Sutton v. R. (1984) 152 C.L.R. 528, at 547, Brennan, J. said similar fact evidence was only admissible where "the probative force of the evidence clearly transcends its merely prejudicial effect ...". See also Perry v. R. (1982) 150 C.L.R. 580, at 604 per Wilson, J., at 609 per Brennan, J.; Thompson v. R. (1989) 169 C.L.R. 1 at 16 per Mason, C.J. and Dawson, J. The task required by the section is strictly not one of measuring against each other concepts which have no common standard of measurement, but considering in turn the probative force and the prejudicial effect of the evidence. See Pfennig v. R., above, at 528-9 per McHugh, J. The purpose of the evidence in the present case was to establish that it was the applicant who shot Najmeddine and Hitchens.
While striking similarity is not an essential element in every case in which it is sought to lead propensity evidence (Director of Public Prosecutions v. P. [1991] 2 A.C. 447 at 460-1 per Lord Mackay of Clashfern, L.C., Pfennig v. R., above, at 482 per Mason, C.J., Deane and Dawson, JJ., and at 529 per McHugh, J.), in my view evidence in respect of one count was only to be taken into account in considering the other count if the crimes were attended by significant common elements pointing to the improbability of any person other than the applicant firing the shot in question. Otherwise the probative value of the evidence would not be sufficiently great to make it just to admit it as similar fact evidence despite its prejudicial effect.
In R. v. Tektonopoulos [1999] VSCA 93, Winneke, P. said at [25] that when propensity evidence was in the nature of similar fact evidence, the risk of prejudice was ordinarily at its highest. He continued:
"This is particularly so in cases where the evidence is tendered for the purpose of establishing the identity of the accused as the offender. In such cases the risk is high that the jury will reason, from the mere fact of established criminal propensity, that the accused is the offender. That is why the courts have insisted in such cases that there should be something in the evidence, in the nature of 'striking similarity' with the offences charged, which strongly points to the accused as the offender."
While the issue in the present case was not the identity of the perpetrator of known crimes but rather whether the crimes of wounding and murder had been committed as the Crown contended or whether there had been an accident and a suicide as the applicant asserted, in my opinion the prejudicial effect of the evidence was tantamount to that found in cases where the issue is whether the accused committed the crimes.
The difficulty with the approach of the trial judge was that it assumed that the applicant committed both crimes to render admissible the propensity evidence. That appears most clearly in the passage from his charge to the jury which I have quoted. His Honour catalogued what he called "hallmark features" of each incident, which largely assumed the applicant's involvement in the commission of both offences. His Honour said that according to the Crown in each case the applicant turned on a friend or associate in a dramatic over-reaction to some slight, he used a gun of the same calibre, the events occurred in the presence of witnesses and the applicant assumed a dominant role and Stamenkovic a lesser role. Apart from the use of a gun of the same calibre and the presence of witnesses, the hallmark features assumed the applicant's guilt of both charges. That is not permissible. See R. v. Tektonopoulos at [36]; Perry v. R. (1982) 150 C.L.R. 580 at 589, 594-5, 607, 612.
Once the assumption that it was the applicant who shot both victims is removed, the probative value of the remaining similarities is much reduced. The same weapon was used on both occasions. However, whether the gun was that of the applicant and whether it was first produced at the scene of each crime by the applicant was in issue. Each crime was committed before a number of witnesses. However, the witnesses to one offence were a small group of persons known to each other; the witnesses to the other offence were passers-by in a busy city street. The similarities remaining after the exclusion of the consideration that in the case of both counts the applicant turned on and attacked a friend or associate with a gun were hardly striking. In my opinion they were not sufficient to warrant the use of evidence on one count in considering the other count in the way the jury were told they could use it.
The Director pointed out that the trial judge told the jury that they must first be satisfied as to the applicant's guilt on one count before considering the next count and he relied upon the warning given to the jury by the trial judge not to use the applicant's guilt on one count to assist the conclusion that he was guilty of the other count. The effect of that warning was largely undone by his Honour's subsequent invitation to the jury to use the evidence led in respect of one count as bearing on the issues of accidental death or suicide and the identity of the person who fired the gun. Nor was the illegitimate cross-fertilisation of the jury's minds by the evidence relating to different counts overcome by the judge's direction that the jury could only use the evidence of one count in considering another count if they were first satisfied of the applicant's guilt on the first count.
It was submitted by the Director that the admission of evidence as to one count in considering another count was justified because it was admitted that the same weapon was used in the commission of both crimes. If the evidence had been admitted for the limited purpose contended for by the Crown, it would have been necessary for the jury to have been instructed that in considering one of the counts they could only use that part of the evidence relating to the other count that revealed the origin and possession of the gun at the scene of the crime. However, the trial judge went very much further than that. On one view he said that the jury could only use the evidence of one count in considering the other if they found that the applicant had committed the first offence and that the second offence shared "hallmark features" including the identity of the applicant as the person who fired the gun used in the second crime. On that view his Honour was directing the jury that they could only use the evidence of one count in considering the other if they first found the applicant guilty of both crimes. The Director pointed out that on that view there was no prejudice to the applicant. But I think there was a real risk that the jury may have taken his Honour to have meant that they could use a finding that the applicant shot a friend after an argument or slight as bearing on the probability that on another occasion he shot a friend in like circumstances. Such a use of the evidence in my view was not justified and the risk that it occurred caused the trial to miscarry.
No exception was taken to that part of the charge relating to the use of evidence led on the count concerning one victim in considering the count relating to the other victim, a matter relied upon by the Director as pointing to the conclusion that no miscarriage of justice was occasioned to the applicant. In my opinion the absence of exception is of no weight, for the question of the admissibility of the evidence relating to one count in determining the other count had been argued and ruled upon before and after the evidence was given.
Joinder
Rule 2 of the Presentment Rules permits joinder of charges in one presentment "if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character." Two offences may constitute a "series" within the meaning of the Rule. In order for a number of offences to be a series of offences of a similar character, there must be some nexus between the offences, that is, elements of similarity which in all the circumstances of the case enable the offences to be described as a series. Ludlow v. Metropolitan Police Commissioner [1971] A.C. 29; R. v. Kray [1970] 1 Q.B. 125; R. v. Wright and Haigh [1983] 1 V.R. 65. In R. v. Kray Widgery, L.J., delivering the judgment of the Court said:
"All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together...".
The legal nature of the two offences and the facts that the same weapon was used in the commission of both offences, that the offences were separated by only ten days and that the victims were from a small group of persons known to each other may have justified the conclusion that the offences did constitute a "series" of similar offences within the meaning of the Rule. The Rule is not limited to cases where the evidence upon one charge is admissible upon the other or others. See R. v. Kray, above, at 131; Ludlow v. Metropolitan Police Commissioner, above, at 39; R. v. McGlinchey (1983) 78 Cr.App.R. 282; R. v. Cannan (1991) 92 Cr.App.R. 16. Whether the discretion to sever the counts contained in s.372(3) of the Crimes Act should have been exercised in my view depended principally upon whether the prejudicial effect of the jury hearing the evidence relating to both counts could have been countered by appropriate directions. If the counts were not to be severed, the evidence relating to count 1 could be used for the purposes of count 2 only as bearing on the provenance of the pistol. The evidence was of considerable importance in this regard for the plausibility of the applicant's account of the circumstances in which Hitchens died depended to a large extent upon the gun being returned to Hitchens not being the gun of the applicant.
If the presentment was not to be severed notwithstanding that in general the evidence relating to one count was not admissible on the other, the jury should have been instructed to consider the evidence relating to each count only in determining that count and warned not to use the evidence relating to one count for the purposes of the other count. The jury should have been told that the only relevance to count 2 of the evidence on count 1 was that it showed the origin and possession of the gun. The jury should have been warned about using in any way the conclusion that the applicant was guilty on one count for the purposes of the other count, and specifically warned against reasoning that the applicant was guilty of one count because his guilt on the other count showed that he had a propensity to commit crimes of the type the subject matter of the counts.
The Proviso
For the foregoing reasons I consider that the trial miscarried in that the jury were incorrectly instructed as to the use they could make of the evidence relating to one count in considering the other count. The Director contended that no substantial miscarriage of justice actually occurred, and the appeal should be dismissed by the application of the proviso to s.568(1) of the Crimes Act 1958. According to the Director, the case against the applicant in relation to each count considered independently of the other was so overwhelming that it was inevitable that the jury would have convicted the applicant on both counts if they had considered the counts separately.
The misdirection was very serious. I am far from sure that if there had been no error the jury must have come to the same conclusion. Whether the applicant was guilty of count 1 depended upon whether the jury believed Najmeddine or the applicant. There is nothing inherently improbable in the latter's account of the former being shot when the gun discharged in the course of a struggle. The applicant's account of the death of Hitchens was attended by some difficulties. Hitchens was not apparently in a suicidal mood, and the decision to shoot himself after firing three shots elsewhere in a crowded street was somewhat bizarre. Yet there was no compelling evidence from any bystander that the applicant shot Hitchens, and the actions of a person committing suicide are not necessarily to be judged by a standard of rationality. In my opinion despite the strength of the Crown case on count 2 the applicant was, in relation to that count, deprived of "a chance which was fairly open to him of being acquitted" (Mraz v. R. (1955) 93 C.L.R. 493 at 514 per Fullagar, J.).
For the foregoing reasons I would grant the application, treat the appeal as instituted and heard instanter, allow the appeal, and order that the convictions be set aside and there be a new trial.
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