R v Cogley - [1999] VSCA 123

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…

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 [1999] VSCA 123
Case: [1999] VSCA 123
Decision Date: 17 August 1999

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Cogley, the Victorian Court of Appeal was tasked with evaluating the conviction of the appellant for murder and other related offences. The appellant was charged with the murder of a woman and several other serious offences, including causing serious injury by an act likely to endanger life. The primary dispute centred on the admissibility of certain propensity evidence, the joinder of the charges, and the applicability of the proviso under the Crimes Act 1958 (Vic.).

The court was required to determine whether the evidence of the appellant's previous acts of violence against women was admissible and whether the probative value of such evidence outweighed its prejudicial effect. Furthermore, the court had to consider whether the charges against the appellant should have been joined under section 398A of the Crimes Act 1958 (Vic.), and whether the proviso in section 568(1) applied to prevent the joinder of these charges.

The Court of Appeal held that the trial judge erred in admitting the propensity evidence as its prejudicial effect substantially outweighed its probative value. The court found that the evidence of the appellant's previous acts of violence, while relevant, was not necessary to establish the circumstances of the offence or any other fact in issue. Regarding the joinder of charges, the court held that the charges were part of a series of offences of a similar character, and thus the proviso under section 568(1) did not apply. Consequently, the joinder of the charges was deemed appropriate.

The Court of Appeal quashed the conviction and ordered a retrial on the charges of murder and causing serious injury by an act likely to endanger life. The court did not address the other charges as they were not the subject of the appeal.

Orders