R v Cogley [1999] VSCA 123

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.

47. 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.

50. 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."

56. 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."

63. 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] HCA 7; (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)."

68. 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] HCA 5; (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] HCA 75; (1982) 150 C.L.R. 580, at 604 per Wilson, J., at 609 per Brennan, J.; Thompson v. R. [1989] HCA 30; (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.

71. 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.

74. 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."

78. 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.

81. 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] HCA 75; (1982) 150 C.L.R. 580 at 589, 594-5, 607, 612.

84. 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.

87. 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.

90. 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.

93. 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.

97. 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] VicRp 6; [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...".

101. 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.

104. 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.

108. 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.

111. 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] HCA 59; (1955) 93 C.L.R. 493 at 514 per Fullagar, J.).

114. 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.