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Tognolini v The Queen

Tognolini v The Queen

Case [2011] VSCA 394 30 November 2011

Appeal

Breach of Contract

Admissibility of Evidence

Cross-admissibility of evidence

Propensity evidence

Coincidence evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0012
TERRENCE RAYMOND TOGNOLINI	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and NEAVE JJA and JUDD AJA
WHERE HELD	MELBOURNE
DATES OF HEARING	14 October and 16 November 2011
DATE OF JUDGMENT	30 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 394
JUDGMENT APPEALED FROM	R v Tognolini (Unreported, County Court of Victoria, Judge Pilgrim, 19 January 2010)

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CRIMINAL LAW – PARTICULAR OFFENCES – Multiple counts of arson.

CRIMINAL LAW – EVIDENCE – Cross-admissibility of evidence – Similar fact evidence – Propensity evidence – Coincidence evidence

CRIMINAL LAW – PROCEDURE – Appeal against conviction – Whether substantial miscarriage of justice – Application to sever counts refused – Exercise of discretion – Whether the charge was confusing and incomprehensible – Whether jury misdirected in relation to cross-admissibility of evidence – Whether ‘striking similarity’ or ‘signature’ required before evidence in relation to arson counts cross-admissible – Adequacy of direction on standard of proof – Video recording of charge reviewed – No substantial miscarriage of justice – Crimes Act 1958 (Vic), s 398A.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P G Priest QC with Mr T Kassimatis	Galbally & Rolfe
For the Crown	Mr O P Holdenson QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

In this matter, I have had the considerable advantage of reading in draft the reasons for judgment of Judd AJA. I agree with his Honour for the reasons he gives that the application for leave to appeal against conviction should be dismissed.

I wish to add two observations of my own. The first concerns the applicant’s contention that, in cases where the identity of the perpetrator is in issue, the only permissible basis for the admission of similar fact evidence is striking similarity or a signature satisfying what is sometimes called the ‘hallmark principle’.

The idea that it is necessary to demonstrate striking similarity or signature in such cases is sometimes attributed to the following statement of Lord Mackay of Clashfern LC in Director of Public Prosecutions v P:[1]

Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary.

[1][1991] 2 AC 447, 462

As has since been observed by the English Court of Criminal Appeal, however:

It would be wrong to suppose that Lord Mackay LC , by his references to DPP v Boardman (where the phrase ‘striking similarity’ had been used as an essential feature of the evidence which was required before similar fact evidence could be admitted in a case where the issue was one of identity), was suggesting that any different principle applied in identity cases as distinct from other kinds of cases. Lord Mackay has made it clear that that he regarded it as a matter of common sense that the…

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 Tognolini v The Queen

Details

AGLC: Tognolini v The Queen [2011] VSCA 394
Case: [2011] VSCA 394
Decision Date: 30 November 2011

CaseChat Overview and Summary

Tognolini was convicted of multiple counts of arson and appealed against the conviction, raising several issues concerning the admissibility of evidence and the directions given to the jury. The appeal focused on whether the trial judge's handling of evidence and instructions to the jury resulted in a substantial miscarriage of justice. Specifically, Tognolini argued that the evidence related to the different counts of arson should not have been cross-admissible and that the jury was misdirected on the standard of proof and the admissibility of similar fact evidence.

The legal issues included the application of the cross-admissibility rule for similar fact evidence under the Crimes Act 1958 (Vic), section 398A. Tognolini contended that the trial judge had failed to properly apply the law regarding the admissibility of propensity evidence and coincidence evidence. Furthermore, Tognolini argued that the trial judge should have severed the counts due to confusion and incomprehensibility, and that the jury was inadequately directed on the standard of proof and the concept of ‘striking similarity’ or ‘signature’ required for cross-admissibility.

The Court of Appeal found that the trial judge did not err in admitting the cross-admissible evidence. The court held that the evidence was relevant and probative of Tognolini's identity as the perpetrator of the arson offences, and that the trial judge's directions to the jury were adequate. The court also rejected the argument that the counts should have been severed, finding that there was no substantial miscarriage of justice. After reviewing the video recording of the charge, the Court of Appeal concluded that the evidence did not establish any error in the trial judge’s exercise of discretion.

The appeal was dismissed, and Tognolini’s convictions were upheld. The Court of Appeal found that the trial judge’s handling of the evidence and instructions to the jury was correct and did not result in a substantial miscarriage of justice. The court confirmed that the evidence was admissible and that the jury was properly directed on the relevant legal principles.

Orders