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[1999] SASC 174
Supreme Court of SA
1999-05-13
Doyle CJ, Martin JJ, Bleby J
Original judgment source is linked above.
(Court of Criminal Appeal: Doyle CJ, Bleby and Martin JJ)
Court of Criminal Appeal: Doyle CJ, Bleby and Martin JJ
"Q. What did Ms Cozzi say when they came to your room. A. She said that Sam murdered somebody. Q. Did she say when this happened. A. Friday morning. Q. Did she give a time. A. About 3 o'clock. Q. Did she say where she was at 3 o'clock. [A. Yes.] Q. What did she say. A. With Sam. Q. Did she say where they went. A. To his house. Q. As much as possible could you use the words that she used, what words did she use to describe his house. A. What do you mean describe his house. Q. Where did she say they went. Did she say they went to his house or did she use some other words. A. Went to his house, to that poofter's house. Q. Did she say what they did when they got to this man's house. A. She just said Sam asked him "Why did you tell her I was gay?" And he was denying it and he lost his temper. Q. Did she say what Sam did. [A. Yes.] Q. What did she say he did. A. Said he struggled.'. Q. Did she say what he did this with. A. No. Q. Did she mention any injuries. A. His ear came off. Q. Did she say how his ear came off. A. No. Q. Did you say anything during this. A. I said you 'Just stood there and let him do that'. Q. Did she reply. A. She said that she tried to stop him. Q. Did she say whether she was able to. A. She said she tried but she couldn't. Q. Was there any talk about whether they would get caught. A. Yes. Q. What was said about that. A. They had gloves. Q. First of all who raised the topic. A. I did. Q. What did you say. A. I said 'Do you think you are not going to get caught'. Q. What did she say. A. Wearing gloves. Q. Was there any reference to a chair. A. I think so. Q. What was said about a chair. A. He was hitting him with the chair or something, I can't remember. Q. You say 'he'. A. Sam. Q. Was there any talk about his jaw. A. I think so. Q. What did she say about his jaw. A. It was hanging or something. Q. Was there any talk about keys. A. She said Sam took the keys. Q. Took whose keys. A. The guy's keys. Q. Did she say whether they took anything else. A. No. Q. Did she say why Sam had taken the keys. A. I can't remember."
"'Q. You said when you were giving evidence that something was said about gloves. Do you remember that. A. Yes. Q. What was said about gloves. What did Claudia say. A. That they were wearing gloves. Q. That they were wearing gloves. A. Yes, that they had gloves. Q. Who was she referring to when she said 'they'. A. I don't know. Q. Did she use the word 'they' or did she say some other word. Imagine you were Claudia speaking, what did she say. A. I can't remember, I just remember something about gloves.'"
"Pausing there, you will remember the reliance which both the prosecution and Mr Braithwaite place on certain passages in that. Mr Braithwaite's submission is that in certain important respects, even on the face of the evidence, it is equivocal; it is not clear and that you should bear that in mind. Ms Hassen was asked this by Mr Braithwaite in cross-examination. Page 351: 'Q. I suggest to you that this happened; that Claudia told you the things you have reported to us here in court, that is, that Plew was hit with a chair and his throat cut, et cetera, all those things. I suggest she told you those things as you reported but not that she was there. Could that be right. A. She just told me what happened. Q. I will ask the same question another way. What I'm suggesting to you is that she said that Sam did these things, the things that you've described at Plew's house, and told me and I'm telling you, do you understand that. Could that be right. A. I don't know, it could be right.' Once again Mr Braithwaite relies on that aspect to indicate perhaps some doubt about precisely what was said. Page 353 there were some further questions: 'Q. Just a while ago' - I was asking these questions - 'Mr Braithwaite said to you could it be the case that Ms Cozzi told you that she had been told certain things by Mr Menendez and she told you those things. Do you remember being asked that question. A. Yes. Q. You said that could have been the case. A. She told me what she knew. Q. Did she suggest, at any time while she was speaking to you, that she wasn't there when this incident involving the chair and the knife and so on took place, but she was simply telling you something that she had been told at some other stage by Mr Menendez. A. Could you rephrase the question? Q. You say that she told you certain things that happened on this night when the man was killed, do you remember that. A. Yes, she told me that. I don't know what happened. Q. I realise that she told you those things. A. Yes. Q. Did she, in effect, tell you that she wasn't there, but she was telling you something that had been told to her or did it happen in some other way. A. She just told me what happened. She didn't get into every little detail about what happened. Q. Did she tell you that she had seen certain things or she had simply been told they had happened. A. She just told me what happened. Q. Did you get the impression from what she said that she may not have been there but she was just telling you things that had happened; or was she giving the impression that she had been there and seen certain things. A. Yes. Q. Which one. A. I had the impression that she was there, but I can't be sure."
"'A. She said that Sam had killed that Geoff. Q. That Sam had killed that -' A. Geoff; had killed Geoff. Q. Did she say when that had happened. A. Friday morning. Q. Did she say what time. A. About two. Q. Did she say where it had happened. A. In his house. Q. Did she say who had gone there. A. Her and Sam. Q. Did she say what happened once they got to the house. A. She said that Sam had asked Geoff if he had told Claudia he was gay and he denied it. Q. Did she say whereabouts this had taken place, whereabouts in the house. A. I don't recall. Q. You said that she had said Sam had asked him about whether he had told Claudia that he was gay and he denied it. A. Yes. Q. What happened then. A. And then Sam started getting mad and hitting this guy. Q. Did she say where Sam was hitting this guy. A. Just hitting him. Q. Did she say how Sam was hitting this guy. A. She said 'He hit him over the head with the chair'. Q. Did she tell you of any injuries. A. That the - Geoff's ear was off and his jaw was hanging down and that he slit his throat with a knife. Q. Was there any conversation about the topic of whether they would get caught. A. Yes, there was. Q. What was said about that. A. That they wouldn't because they were wearing gloves. Q. What was Ms Cozzi's demeanour, what was her manner when she was talking to you. A. Shock. Q. Did you respond to what she was saying. A. Yes, I did. I couldn't - I said I couldn't believe that they had done that. Q. What did she say. A. She said he lost his temper."
"'Q. I suggest to you that when Claudia Cozzi spoke to you up there at the lookout that what, in fact, she said to you was 'Sam told me he had done these things to Mr Plew up at Mr Plew's house'. A. If she had said that I wouldn't have said otherwise. Q. It was your impression that she said she was there, is that right. A. That's right. Q. I suggest to you that there's very little difference to listening to it, between someone saying something like 'We went up to that poofter's house' and 'He went up to that poofter's house' 'Q. I am suggesting to you that she never, in fact, said that 'I was there when these things happened'; could that be right. A. Going back ten months ago I thought I knew. She had told me that they were both there and that's what I have said in my statement. Q. What I am suggesting to you is that you have got the wrong impression in those circumstances. Could that be right. Could it be right that you got the wrong impression about that. A. It could have been.'"
"I told him 'you are going to get caught' and he said 'No, I'm not because I wore gloves and that - I said 'Did you leave the door to the house wide open' and he goes, he said to me 'No', he had Geoff's keys and that was all I know".
"HIS HONOUR: Ladies and gentlemen, the evidence of these two young women Hassen and Presutti is, as I have pointed out to you before, crucial to the prosecution case. They must be assessed carefully. You must remember the accused Cozzi's version while you are assessing them. Before using the evidence for any purpose in the case, that is their evidence, you would have to be satisfied beyond reasonable doubt of what Ms Cozzi did say to them; that is to say, any part of that conversation you would have to find proved beyond reasonable doubt before you used it for any purpose in the case. There are two important features of this evidence: Did either or both statements include an admission that Ms Cozzi was there at the house, and was that admission true and accurate? Furthermore, did she tell either or both of them that she and Menendez were wearing gloves? Ms Abraham said that Ms Hassen was a reluctant witness. She asked could there be any real mistake as to what they were being told. She said their questions of Ms Cozzi reflected the fact that she was saying that she was there. She said their evidence is supported by the fact that there were two sets of gloves missing. Mr Braithwaite argued that the evidence of the two young women gave rise to considerable concern as to whether they were mistaken, and so much depends on their evidence. He said there is no suggestion that they were lying but, he said, could they be mistaken? Is it a reasonable possibility that they might be mistaken in their evidence or some of the details? He pointed out that the emphasis in the conversations was on Sam killing him. He pointed out that their evidence was too equivocal, and I have read those passages, particularly his cross-examination upon which he relies. He referred indeed to marijuana on the second occasion at the lookout and the possible effect that that might have had."
"Ms Abraham has referred to other evidence in relation to Cozzi, but the prosecution case in relation to murder and manslaughter against Cozzi cannot succeed without the evidence of these two witnesses. It cannot be used to assist in founding a conviction of either murder or manslaughter unless you find that it leaves no reasonable doubt on the question of presence at the scene and Cozzi wearing gloves".
(i) The appellant was acquitted of murder. The jury were not satisfied that she was party to an agreement or understanding to kill or inflict really serious bodily harm upon the deceased. It also follows that, although the appellant was present at the time of the killing, she did not aid and abet Menendez in the crime of murder. (ii) It is unknown when Menendez formed the intention to kill or cause really serious bodily harm. Whenever he formed that intention, the appellant was either unaware of it or did not join in to that extent. (iii) The acquittal of murder occurred in the context of a defence case that the appellant was not present at the time of the killing. That case was rejected as was the Crown version of a plan to kill or cause really serious bodily harm having been reached at the outset. (iv) The finding of the jury that the appellant aided and abetted or was party to a dangerous assault upon the deceased short of murder fits with the evidence of a desire to confront the deceased and obtain a retraction.
An examination of the evidence concerning causation will also involve consideration of the directions given to the jury and assessing the bases upon which, in view of the background and those directions, the jury could reasonably have found the appellant guilty of manslaughter. The critical question is whether, in respect of the crime of manslaughter, the directions provided sufficient assistance to the jury in relating the legal requirements of the crime to the factual possibilities open to the jury (R v Anderson [1996] VICSC 17; [1996] 2 VR 663). It must be recognised that the directions were given in the context of a trial in which the appellant was denying she was present at the time of the killing. The adequacy of those directions, however, must now be assessed in the light of the verdicts.
"Manslaughter can arise in a case in a number of ways. One of them is where a person kills another in the course of an unlawful and dangerous act. If a person causes the death of another while assaulting that person and performing acts which were dangerous in the sense that they would have exposed the victim to an appreciable risk of serious injury, then the person who carries out those acts may be found guilty of manslaughter. How is this relevant to Ms Cozzi? If you reach the view that Ms Cozzi was present at the time of the killing, but was not guilty of murder by reason of being part of a joint enterprise to murder Mr Plew, or an aider and abetter to the crime of murder, she would nevertheless be guilty of manslaughter if Mr Plew was killed by Mr Menendez and she was party to an agreement to assault Mr Plew and join in acts which were dangerous acts in the sense that a reasonable person in her position would have realized that they would have exposed Mr Plew to an appreciable risk of serious injury. That is the joint enterprise principle applied to manslaughter. In order for such a verdict to be returned it would be necessary for the prosecution to establish the following elements: 1. That the accused Cozzi was present at the scene of the killing. 2. That she was party to an agreement or understanding that Mr Plew would be assaulted. An assault is the intentional infliction of bodily harm on a person without lawful excuse. 3. That the assault was dangerous in the sense that a reasonable person in the accused's position would have realised that it exposed the person assaulted to an appreciable risk of serious injury. 4. That Mr Plew was killed as a result of the assault. What I have just described would amount to the commission of the crime of manslaughter by means of a joint enterprise. Once again, the alternative of aiding and abetting is relevant. Ms Cozzi would also be guilty of manslaughter if: 1. She was present at the time of the killing of Mr Plew. 2. Ms Cozzi either aided or encouraged the commission of the assault. 3. The assault was dangerous in the sense that a reasonable person in Ms Cozzi's position would have realised that the assault would have exposed the deceased to an appreciable risk of serious injury. 4. Mr Plew was killed in the course of the assault."
(i) the judge told the jury the Crown had to prove the dangerous assault to which the appellant was a party caused the death (ii) it was clear from the evidence that death was caused by an assault with a knife and not by the assault by beating the deceased about the head and body.
"Q. Would those blows have resulted in loss of consciousness. A. It's quite likely, yes. The extent of the brain injury suggested they were an unlikely cause of death, in terms of injury to the brain. I think it's most likely he would have lost consciousness from them, but they posed no direct and immediate threat to life. Q. In giving that answer I take it you are confining yourself just to the head injuries and excluding the other injuries; you've already spoken of the stab wounds. A. Yes, I'm just talking about the blood and trauma to the head."
"In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example "has used a weapon and acted in a way which no party to that common design could suspect", the inactive participant is not guilty of either murder or manslaughter: Reg. v Anderson; Reg. v Morris. If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design, the inactive participant may be convicted of manslaughter: Varley v The Queen."
"It is clear from the term of the Chief Justice's judgment in Varley and the Acting Chief Justice's judgment in Markby that their Honours were imposing an objective test upon this aspect of accessorial liability. And there is some logic in this. For when determining an accessory's culpability for manslaughter in a situation where the principal is guilty of murder, one can assume that the act causing death was not within actual contemplation. If it had been, then in most cases the accessory would also be guilty of murder. The issue in relation to manslaughter is whether, notwithstanding that the fatal act was not in fact foreseen or contemplated, it was nevertheless, from an objective point of view, within the scope of the common design. If it was, then the accessory will be taken to have encouraged it, and he will be guilty of manslaughter. If it was not, then the principal will have gone so far outside the common purpose that the accessory will bear no criminal responsibility for his actions. Accordingly, in all such cases it will be incumbent upon the Crown to prove either that the accessory knew of the presence of the weapon but assumed that it would not be used to inflict grievous bodily harm or death, or alternatively that some use of the weapon was within the scope of the common design, in which case the accessory will be taken to have encouraged or assisted in its use, notwithstanding that he did not know of its actual presence. It follows that if a Crown case is to reach a jury in relation to an accessory who is unaware of the presence of the weapon, there must be some evidence from which it can be inferred that the use of the weapon was nevertheless within the scope of the common design. The more lethal the weapon, the more difficult it will be to draw such an inference, so that more substantial evidence will be required in order to get the case to the jury. But each case will depend on its own facts."
"The use of a weapon such as a baton, a rock, a knife or a revolver, which brings about death, may be no more than an unexpected incident in carrying out the common design. If so, then the differing verdicts of murder and manslaughter are still open. This would appear to be so even if the existence of the weapon was unknown to the second accused. In Varley's case the weapon was a baton or cosh. It is more likely that there would be a going "wholly outside the common design" when one accused had and use[d] a knife or revolver without the knowledge of the other accused. But it will be a question of fact in each case and it cannot be said that there is a special rule for knives or revolvers to the effect that their unknown possession and use will invariably involve a complete departure from a common design to carry out an assault where there is no murderous intent."
(ii) Death was caused by an assault in which a knife was used. The beating about the head and body did not cause the death. (iii) Through a combination of factors, there is a real possibility that the jury were not satisfied the appellant was party to a dangerous assault that encompassed the use of a knife, but nevertheless convicted on the basis that the appellant was party to the dangerous and brutal non-fatal assault in which the deceased was beaten about the head and body. (iv) The jury were not told specifically of the factual circumstances in which the appellant should be convicted or acquitted of manslaughter if she was party to an assault that did not encompass the use of a knife (Markby).
In the particular circumstances of this trial, in my opinion the absence of that direction in accordance with Markby resulted in a real risk that the jury convicted on factual findings that entitled the appellant to a complete acquittal. In arriving at that view, I have been conscious of the need to bear in mind the basis on which the trial was conducted and the need to tailor the directions accordingly (Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 a 466 and R v Williams (1990) 50 A Crim R 213). In my view, however, the directions failed to bring the critical issues discussed to the attention of the jury and they were not given sufficient assistance in relating the legal issues to the different factual scenarios upon which a conviction of manslaughter was open.
1. That the person alleged to be the principal offender (in this case Menendez) committed the offence of murder or manslaughter. 2. That the appellant assisted the principal offender to escape apprehension or prosecution or to dispose of the proceeds of the offence. The assistance need not be successful in the sense that it actually prevents apprehension or prosecution, but this must be its purpose; to assist. 3. That at the time of the assistance, the appellant knew or believed the principal offender, Menendez, had committed the crime of either murder or manslaughter. 4. That the appellant performed the act or acts of assistance intending to assist the principal offender to escape apprehension or prosecution. 5. That the acts of assistance were performed without lawful authority or reasonable excuse.
# R
COZZI No. SCCRM-98-133 Judgment No. S174 \[1999\] SASC 174
(1994) 181 CLR 487
(1997) 191 CLR 439
(1978) 140 CLR 108
(1952) 85 CLR 437
(1955) 93 CLR 493