Regina v Cohen

COUNSEL : D M Woodburne (Crown) S M Kluss (Appellant) SOLICITORS : S E O'Connor (Crown) Ross Hill & Associates (Appellant) CATCHWORDS : CRIMINAL LAW - evidence - whether money seized from home of accused was relevant - admission of conversation between the accused and witness - admission of identification evidence and whether such evidence went to the identity of the accused - CRIMINAL LAW - directions to jury - circumstantial evidence - failure to direct jury as to suspicion of guilt being insufficient - failure to provide direction as to flight - CRIMINAL LAW - severity of sentence - existence of special circumstances Crimes Act 1900 s105A LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s44 Evidence Act 1995 s55; s90; s135; s137 R v Alexander (1981) 145 CLR 395 CASES CITED: R v Davies and Cody (1937) 57 CLR 170 R v Fernando (1992) 76 A Crim R 58 R v Pitkin (1995) 80 A Crim R 302 DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60872/01

SANTOW JA HIDDEN J ADAMS J

12 SEPTEMBER 2002 REGINA -v- Christopher Lawrence COHEN Judgment 1 SANTOW JA: I agree with Adams J 2 HIDDEN J I also agree. 3 ADAMS J: On 23 August 2001, following a three day trial, the appellant was convicted of a number of offences arising out of breaking and entering the home of Mr and Mrs Clausen at Mingelo Street, Peak Hill. The crucial question in the trial was whether the appellant was properly identified as the offender in question. The appellant complains of a number of what are submitted to be misdirections by the learned trial judge, Andrew ADCJ. The appellant was sentenced on 26 November 2001 to sentences of varying length, to be served concurrently, with the result that a term of eight years commencing 3 May 2001 and expiring 2 May 2009 with a non-parole period of six years expiring on 2 May 2007 was imposed. On 13 June 2000, the appellant's parole, in respect of a sentence that was imposed on 6 November 1996 was revoked and he was ordered to serve the balance of parole of one year three months and eight days commencing on 3 May 2000 and expiring on 10 August 2001. 4 There are a number of grounds of appeal which take up different aspects of the trial but which need to be considered in the context of the evidence, to which I now turn. In early 1999, Mr and Mrs Clausen moved into a house at Mingelo Street, Peak Hill, a small country town. The house was attached to the Post Office, which they had purchased. Mr Clausen managed the Post Office business, with Mrs Clausen helping out from time to time. On 27 April 2000, Mr Clausen closed the Post Office at 5pm, counted the day's takings and placed it into the safe together with the till drawer. The takings totalled about $4,400, mainly comprising $50 notes but including $20, $10 and $5 notes with the possibility of the odd $100 note. The money was folded into a wad held with an elastic band. The Clausens went to bed between 9 and 10pm. Mrs Clausen said that she had left the kitchen window open about an inch before she went to bed. On the outside of that window was a hinged flyscreen that was closed. She woke at about 1am, hearing noises in the house and creaking floorboards. The hallway light was on and Mrs Clausen looked up and saw a man holding a knife silhouetted in the doorway of their bedroom, the light in which was off. She was able to recognise the knife as a sharp steak knife from her kitchen. She sat up and said loudly, "Who the hell are you?" The man said, "Get up, get up, where's the money, where's the money?" Mr Clausen woke and saw the man standing near his wife's side of the bed. He got out of bed and noticed that the man was about 5'11" - 6 feet tall, of slim-medium build and wearing dark tracksuit pants with a white pattern down each leg. The track pants were loose at the bottom. He was wearing a darkish T-shirt and joggers. He had short, dark hair and a "darkish complexion". Mr Clausen said that when he first saw him he thought he had recognised him from the Post Office. He described the lighting as fairly dim but not dark. At this time, he supposed that he looked at him "only a few seconds". The man indicated that the Clausens should go into the lounge room. Although the light there was better, the offender pulled his T-shirt from his back up and over the top of his head to just above his eyes. They went into the Post Office, the offender having possession of the knife, and took them to the front counter, pointing to the empty till and demanding money. He was told the money was in the safe and he ordered Mr Clausen to open it. Mr Clausen did so and gave him the money that he had earlier placed there. After some further brief conversation, Mrs Clausen gave him more money out of her purse. They then went back to the safe and more money was taken from the safe, about $500 or $600. The Clausens were then taken back to the lounge room where they were made to lie on their stomachs, the man threatening to kill them if they called the police. He then told them to get up, led them though the house and asked for the way out. They went to the back door, which was then unlocked but the offender did not leave. He brought them back inside to the dining room where he told them both to lie down and he then indecently assaulted Mrs Clausen. He told her that he was going to rape her. At that point Mrs Clausen jumped up and pushed the man away and grabbed a plate and hit him over the head with it. Mr Clausen joined in and a struggle broke out during which the offender bit Mr Clausen on the arm. The man bit Mrs Clausen's wrist and finger. Finally they managed to push the man out the back door and rang the police. Mrs Clausen described the offender as having thin, wiry build, about 5'8" tall with "dark sort of honey-brown skin, very dark black curly hair, big brown eyes and he was part Aboriginal". She noticed that he had a tattoo on the top of his right forearm near the elbow, describing it as "quite a large dark black tattoo" in a "sort of an ovally (sic) shape" with "quite an intricate design inside the middle of it" but said that she was not close enough when she saw it to know what the design was. She said that the offender wore a blue/grey T-shirt with a round neck and short sleeves with a Nike emblem on it. 5 Sergeant Graham arrived at the Clausens' house at 1.45am and Mr Clausen told him, "I think it was one of the Cohens" intending to identify the offender who, as I have mentioned, he thought he recognised. Sergeant Graham noticed the kitchen window was open and a bench chair situated under it in a position which suggested that it had been used for the offender's entry. A fingerprint found on the inside of the hinged wooden flyscreen frame was that of the appellant. 6 A swab taken from the handle of a knife found on the floor in the kitchen and identified as that used by the offender, demonstrated the presence of human male DNA, consistent with that of the appellant but not that of Mr Clausen. The relevant profile occurred in about one in ten thousand individuals of the general population. This was described by the expert witness as a "rare profile". Further precision was impossible because the full profile could not be identified. Nothing excluded the appellant. 7 During the course of the investigation, Sergeant Graham visited premises occupied by a Ms Maggie Cohen, the appellant's grandmother, and, then, Jodie Hando (who was the daughter of the mail contractor) and who was involved in a relationship with the appellant. Ms Hando was called to give evidence by the Crown. She said that on 27 April she arrived home about 2pm to find the appellant there and that he was very drunk. At about 6.30pm the appellant left the house. Ms Hando left about an hour later to go to the local bowling club, returning at about 10.30pm. The appellant was not there and, in due course, she went to bed to be woken up in the early hours of the morning by the appellant entering the bedroom. He smelled of drink and said to her, "Don't worry, I've got to go". She said, "Why, where are you going?" He said, "Don't worry, I've got to go, I've got to get out of town. I've done something silly". The appellant then left the room, returned a short time after with a white plastic shopping bag and then left again. Ms Hando thought that he had gone to sleep in the lounge room. The next morning when she woke up, the appellant had gone, together with most of his clothes. Under a pile of clothes on the chair next to the door, there was a large amount of money which, when counted, amounted to $3,100. Ms Hando had not seen it before and did not know how it got there. 8 On Wednesday, 3 May 2000, the appellant attended the Dubbo Police Station with his mother. Amongst other things, he provided a blood sample. He was arrested and charged. Mrs Clausen had given a detailed description of the shoes worn by the offender on the night in question but when she was shown nine pairs of running shoes, including a pair taken from the appellant on his arrest, she was unable to identify any as those which had been worn on the night in question. 9 On 25 May 2002, police showed Mr Clausen twelve photographs including, of course, one of the appellant. Mr Clausen chose the appellant's photograph, saying words to the effect "That was him", although he might have said, "That's Chris Cohen", meaning, in either event, to identify the appellant as the offender. He said that he had seen him on perhaps fifty to a hundred occasions as a customer in the Post Office and he had seen him helping out once or twice with the mail in the afternoon, Ms Hando being the mail contractor's daughter. Mr Clausen said that he had noticed tattoos on the appellant's left arm from the wrist to the elbow though he could not see what it was. He said that, on the night in question, although he did not really study the offender's face "real closely", he "saw enough of the face to [feel] I recognised him". Mr Clausen conceded that by the time he came to look at the photographs he had in his mind - as would have been inevitable - the appellant as the offender and told the police officer, when asked to state the extent of his certainty in percentage terms that he was the offender, said "probably 80%", reflecting the fact that he was not entirely sure that the appellant was indeed the offender. Mrs Clausen was also shown a number of photographs containing, of course, one of the appellant, but was unable to identify anybody, saying of the photograph of the appellant "No, that's not him". However, as she said to the police, she had tried not to look at the offender (for, perhaps, quite obvious reasons). 10 The appellant's counsel elicited in cross-examination that the COPS printout indicated that the appellant had, as a distinguishing feature, a tattoo on his entire right arm but also elicited from Ms Hando (also called in the defence case) that she had been the appellant's girlfriend "on and off eight years" and that she had never seen any tattoos on either of his forearms. Evidence was also led from an employee of the appellant's solicitors that, during an adjournment, she had examined his forearms and had seen neither scars nor tattoos on them. That evidence comprised the defence case, the appellant not giving evidence. Counsel then addressed the jury. Addresses by counsel commenced on the morning of the third day of trial, following some short evidence. After the morning adjournment, the jury sent a question, "Can we see any detail/evidence of tattoos on the brother, Colin Cohen?" There had been some evidence about the fact that the appellant had a brother, Colin, and some criticism was made of the police that his photograph had not been contained in the book of photographs shown to the Clausens, that enquiries had not been made about whether he had a tattoo on his arm, and a blood sample was not taken from him for DNA testing. 11 Defence counsel said, when asked about the jury's question - "I think practically speaking the case is closed…and it's unfortunate. They can't have it and they can't speculate but I'd ask your Honour to remind the jury that it's not up to the defence to provide an alternative person, it's up to the Crown to prove the case beyond a reasonable doubt." [Slight correction to transcript] 12 The Crown agreed with this approach and, accordingly, his Honour instructed the jury - "The short answer to that is 'No' because the evidence is now closed and that is the state of the evidence which is now before you. I would remind you that it is not for the defence to prove its case but it is for the Crown to prove its case to you beyond reasonable doubt. But I will be referring to that in my summing up to you more fully." 13 Counsel completed addresses shortly before the luncheon adjournment. The Court then adjourned and the learned trial Judge then summed up for a little over two hours, sending the jury out to consider its verdict at 3.15pm. During the afternoon session the jury asked two further questions which are not material to the appeal. The Court adjourned at about 4pm and resumed at 10am the following day. On resumption in the morning, counsel for the defence re-opened the matter of Colin Cohen's tattoos. In substance, counsel asked his Honour to direct the jury that police records indicated that Colin Cohen, the appellant's brother, had tattoos on his arms and hands. Not surprisingly, the Crown prosecutor objected to this application pointing out, in substance, that it was impossible for the Crown to deal with the new evidence. Giving brief reasons, which noted that the evidence was closed and the jury were then deliberating, his Honour rejected the application. The relevant COPS extract, upon which counsel relied for his application, was tendered in this Court. It is confusing and I do not think that it provided an adequate or proper basis for the matter which defence counsel sought his Honour to communicate to the jury. No attempt was made in this Court to tender any fresh evidence that suggested that, indeed, Colin Cohen had tattoos at the relevant time or what they looked like. Even if the COPS extract justified counsel's description, I do not see that his Honour erred in rejecting the application to re-open the case at that stage, nor could it be maintained that the evidence was cogent. 14 It will be seen that the Crown case was circumstantial reliance being placed upon a combination of various facts, in particular - · the discovery of the appellant's fingerprint on the inside of the flyscreen which (the jury would inevitably have inferred) had been opened by the offender to enter through the kitchen window; · the recognition of the offender as the appellant by Mr Clausen, although this was attended by a significant level of uncertainty; · shortly after the offence, the appellant told his girlfriend Ms Hando, that he had to get out of town because he had done something silly; · shortly after the appellant's departure, the police attending at his home found $3,100 in cash folded into a wad with elastic bands around it and in the same denominations as the money taken from the Post Office; · the DNA on the handle of the knife used in the offence was not that of Mr Clausen but was consistent with that of the appellant.

Ground of Appeal 1 - His Honour erred in admitting evidence of the finding of money in the home of Ms Hando. 15 It is submitted that there was insufficient evidence to link the money to the offence and therefore, as it was not shown to be relevant, it should not have been admitted. The evidence of the money was, by itself, no more than suggestive. However, taken with all the other evidence I think it was undoubtedly relevant as capable of rationally affecting the assessment of the appellant's guilt (cf s55 of the Evidence Act 1995).

Ground of Appeal 2 - His Honour erred in admitting evidence of the alleged conversation by the accused to Ms Hando. 16 It is submitted that the statement reported by Ms Hando as having been made to her by the appellant on the night of the offence was so equivocal that its relevance could not be fairly assessed, let alone appropriate weight accorded to its probative value. It is submitted that it should have been rejected as unfair to the appellant under s90 of the Evidence Act 1995 or otherwise under ss135 or 137 of the Act. In my view, the jury was quite capable of approaching the alleged statements in a commonsense way. Although the exact import of the words was of course, uncertain, they were well capable of applying to the offence. Whether they should have been so interpreted depends upon the jury's evaluation of their significance in light of all the other evidence in the case. I do not see why this could be said to have prejudiced the appellant unfairly. The very uncertainty of the words was a matter upon which the defence would have been entitled to point as leading to a doubt about the appellant's guilt. Although, in a sense, the words are tendered as an admission, their true import was as a circumstantial fact to be considered in the light of the other facts as found by the jury. There is no merit in this ground. I note that, in addition, no objection was taken to the admission of this evidence at trial.

Ground of Appeal 3 - His Honour erred in relation to the admission of evidence regarding the purported evidence of identification anticipated from Mr Clausen. Ground of Appeal 4 - His Honour erred in not excluding the evidence of Mr Clausen regarding the photo identification. It is submitted that the evidence as it eventuated was a feeling by Mr Clausen that it might have been "one of the Cohens" - the person that he identified was the person that he knew to be Chris Cohen, not the offender, as was not relevant or probative of a fact in issue. 17 I have already outlined the circumstances of the identification evidence. In truth, this was not evidence of identification so much as evidence of resemblance. It was submitted that Mr Clausen's evidence was no more than that he identified a person who resembled "one of the Cohens" as distinct from the offender. It is obvious from the evidence that this was not the case but that, at all events, this was a matter quite capable of being evaluated by the jury. The quality of the evidence is significantly different from that considered in Pitkin (1995) 80 A Crim R 302 where the crucial eyewitness said, when selecting a photograph at the police station, "This looks like the person that I seen", where the Crown case against the accused rested solely upon this purported identification and where the person identified was a stranger. This was not the identification of a stranger but rather the description of a substantial likelihood by the witness that the offender was the person that he knew as Christopher Cohen, the appellant, a man whom he had seen many times in his shop. It is submitted by the appellant that the fact that Mr Clausen had in his mind at the time when he identified the appellant from the photographs shown to him by the police, that his assailant was or looked like Christopher Cohen rendered his identification of the photograph so unreliable that it should not have been admitted. However, Mr Clausen was of the view about the offender's identity from the time of the offence itself and this view arose from his prior acquaintance with the man. The considerations referred to in R v Davies and Cody (1937) 57 CLR 170 at 181 concerning the power of suggestion do not apply. Nor is this a case raising the issues which Alexander (1981) 145 CLR 395 authoritatively determined. 18 Although Andrew ADCJ referred to Mr Clausen's evidence about the offender as "identification evidence" in his directions to the jury, his Honour reminded the jury of Mrs Clausen's evidence that the photograph of the appellant was not that of the offender and that Mr Clausen had said he was (only) 80% sure of his identification of the appellant and added - "All of that evidence may establish that there is a resemblance between the person in the photo and the person who robbed the Post Office and committed these offences. It does not prove it is the same person, which is what identification means. That is, the same person. Thus the evidence of Mr Clausen is that there was a resemblance between the person in the photo and the person who robbed the Post office. If you are satisfied that the man at the scene of the crime looked like the accused then it is a factor in the circumstantial case that the Crown is seeking to establish. Although in my next remarks I may use the term 'identification', you will remember that there is no specific evidence of identification in this case." 19 In addition, his Honour warned the jury about the dangers of false identification and other relevant aspects of this evidence to which it is unnecessary to make reference, no complaint having been made at trial about these directions and this matter not being the subject of a ground of appeal. It is fair, I think, to note that his Honour's remarks were adequate in the circumstances of the case. 20 The directions were criticised here for failing to advert to Mrs Clausen's evidence about the photograph. However, his Honour in fact did this. The directions were also criticised for failing to bring to the jury's attention, as material to the cogency of the resemblance evidence, the evidence of the Clausens concerning the offender's clothing, the presence of the tattoo and (as I understand it) that he did not smell of alcohol, this latter matter arising out of the evidence of Ms Hando about the state of the appellant's intoxication. These matters were, however, specifically brought to the attention of the jury when his Honour dealt with the defence case. Moreover, no redirections as to the terms in which his Honour did so were sought by defence counsel. Whilst they were no doubt part of the evidence as a whole reflecting on the circumstantial conclusion and the strength of the factors relied on by the Crown to prove its case against the appellant, I do not consider that, having regard to the way in which this matter was ultimately left to the jury, his Honour erred in not specifically referring to these aspects when directing the jury as to the care with which the resemblance evidence should be approached.

Ground of Appeal 6 - His Honour erred in his directions as to circumstantial evidence. 21 His Honour's directions as to circumstantial evidence were as follows - "However, before you can find an accused person guilty of a crime on the basis of circumstantial evidence you must be satisfied that such a finding is not only reasonable, but that it is the only reasonable finding to make. It follows if there is another finding which is reasonably open, that is if there is another reasonable explanation which is consistent with innocence it is your duty to find the accused not guilty. And, of course, when you consider circumstantial evidence you do so in the light of all the other material in the case. The circumstances relied upon by the Crown in this case, as essential to prove the Crown case, were outlined to you. Those circumstances which the Crown asks you to focus upon were firstly, the fingerprint evidence, that is the fingerprint of the accused found on the outside flyscreen on the inside of that screen; secondly, the evidence of identification by Mr Clausen; thirdly, the DNA evidence; fourthly, the money found in the accused's bedroom; and, fifthly the evidence of a tattoo which really goes to identification. Each of these is a link in the chain of circumstances that the Crown seeks to prove. Other pieces of evidence may be likened to strands in a rope, rather than links in the chain. The more there are the thicker the rope, but these particular facts as alleged facts are in a different category. If you have a reasonable doubt as to the existence of any of these facts that I have enumerated, you may consider that the chain would be broken and that it would not be open to you to draw the inference of guilt from the remaining evidence. The Crown must prove each of these circumstances beyond reasonable doubt before a finding of guilt could be made on the basis of circumstantial evidence. They are links in a chain, each one depending on the other to establish the case based on circumstantial evidence." 22 No application was made by defence counsel for any correction of these directions, which is scarcely surprising since they were favourable to the defence and overstated the significance of these items of evidence. For myself, I do not think that any of them were links in the chain in the sense that they were essential to a finding of guilt with the possible exception of the fingerprint, which, however, was not the subject of controversy. Counsel in this Court submitted that the jury was not specifically invited by his Honour to consider whether, in respect of any of these items, there was a competing inference available, as I understand it arguing that it would be necessary for the jury to consider whether each one of the enumerated facts was proved as the only rational conclusion on the evidence. At this part of his Honour's directions, however, he was outlining the Crown case and it was perfectly proper for his Honour to do so in a coherent way. However, the learned trial Judge reminded the jury of the defence case concerning the tattoo, the fingerprint, the DNA evidence, the identification (referring to the shoes, the clothes, the lack of injuries on the appellant and his reeking of alcohol), the opportunity for the police to have planted the money and the fact that the appellant went to the police voluntarily in due course. In the result, I am unable to see any error in his Honour's directions concerning circumstantial evidence, at least any error that impinged adversely upon the defence.

Ground of Appeal 7 - Failure to direct the jury as to suspicion being insufficient. 23 After the jury retired, they tendered a question, "In law, what constitutes 'reasonable doubt'?" Defence counsel asked his Honour to remind the jury, as he had already mentioned in his summing up, in substance that suspicion was not proof. His Honour declined to do so, informing the jury simply that the words "beyond reasonable doubt" are meant in their ordinary sense. I do not consider that his Honour erred in declining to say more than this.

Ground of Appeal 8 - His Honour erred in not providing appropriate directions to as to "flight". 24 As will have been noted from the narrative account of the evidence above, the applicant, on the night of the offences, said to Ms Hando words to the effect "I've done something silly and got to get out of town…" It was submitted that the jury could have inferred from this conversation that the appellant had fled from his girlfriend's residence because of a consciousness of guilt with respect to his commission of the offence. Accordingly, the jury should have been directed that they could not draw this inference unless it was the only inference available on the evidence. There was no evidence that the appellant had in fact fled town and there was other evidence that he gave himself up voluntarily to the police. It is obvious that the Crown did not rely on any evidence of flight and the matter was not put to the jury in that way. At all events, the submission overstates the required direction where (as here) flight, if relied on, was no more than one of the circumstantial facts consistent with guilt. This ground of appeal is without merit.

Appeal as to Sentence 25 The appellant submitted that his Honour failed to consider whether "special circumstances" existed within the meaning of s44 of the Crimes (Sentencing Procedure) Act 1999. In the result, the appellant was convicted of seven crimes arising out of his breaking into the Clausens' premises, robbing and assaulting them. Taking the counts in the indictment in order, in respect of charges 1 and 2 (breaking and entering premises at Mingelo Street and robbing Mr Clausen of his property and that of Australia Post, carrying a maximum term of twenty years' imprisonment) the appellant was sentenced to a term of eight years' imprisonment commencing from 3 May 2001 and expiring on 2 May 2009 with a non-parole period of six years expiring on 2 May 2007. In respect of charges 3 and 4 (breaking and entering the dwelling house at Mingelo Street and assaulting the Clausens, occasioning them actual bodily harm, carrying a maximum of fourteen years' imprisonment) a term of six years' imprisonment commencing 3 May 2001 and expiring on 2 May 2007 with a non-parole period of four years and six months expiring on 2 November 2005 and in respect of charges 5, 6 and 7 (indecently assaulting Mrs Clausen, carrying a maximum term of imprisonment of five years) fixed terms of imprisonment of two years commencing on 3 May 2001 and expiring on 2 May 2003. His Honour rightly considered these crimes to be extremely serious indeed and it could not be suggested that the sentences which he imposed were in any way excessive. His Honour noted that the seriousness of the crimes committed by the appellant was enhanced by the fact that he was on parole for robbery at the time of the offence, that he had a prior record involving violence, robbery and breaking, entering and stealing, that the appellant was aware that the property was occupied, that actual trauma was suffered by the victims, including especially the sexual assaults on Mrs Clausen and also that a substantial amount of money was stolen. The circumstances of aggravation to which s105A of the Crimes Act 1900 applied were that the offender was armed with an offensive weapon, that he used corporal violence, that he inflicted actual bodily harm and knew there were persons in the house when the offence was committed. His Honour noted that the appellant showed no remorse or contrition. His Honour considered the appellant's antecedents to see whether, if any, leniency could be extended to him, noting that he was aged twenty-seven and of Aboriginal descent and the other contents of a detailed report from the Probation and Parole Service. Amongst other things, that report indicated that the appellant lacked any insight into the major factor in his offending behaviour, namely his long history of alcohol dependence and in the past an addiction to heroin. A psychological report also demonstrated a worrying tendency to emotionally unstable behaviour with anti-social and self-focused attitudes. His Honour considered it likely that the appellant may have been affected by alcohol on the night in question but, rightly, considered this was not a mitigating factor. His Honour took into account the principles enunciated by Wood CJ at CL in R v Fernando (1992) 76 A Crim R 58 and considered that his Aboriginality was a material factor. His Honour made no reference to the possible existence of special circumstances. In my respectful view it would have been preferable for the learned sentencing Judge to have done so but, having regard to the evidence before him, it is difficult to see how special circumstances which justified a departure from the statutory calculus were present, especially in light of the apparently adamant refusal by the appellant to consider undertaking any treatment or other courses that might be available to him with respect to the underlying problems in his life. It is possible to articulate an argument for the existence of special circumstances but I am not persuaded that his Honour erred in respect of the sentences passed. **********

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