Cogley v The Queen M3/2001 [2001] HCATrans 650 (14 December 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M3 of 2001

B e t w e e n -

SHANE ALEXANDER COGLEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2001, AT 1.00 PM

Copyright in the High Court of Australia

MR D.C. FITZGIBBON: May it please the Court, I appear for Mr Cogley, thank you. (instructed by Waters O'Brien)

MR G.M. HORGAN, SC: Your Honour, if the Court pleases, I appear with my learned friend, MR D.D. GURVICH, for the respondent. (instructed by Solicitor for Public Prosecutions (Victoria))

McHUGH J: Yes, Mr Fitzgibbon.

MR FITZGIBBON: Yes, thank you. May it please the Court, in two very introductory matters I have caused my solicitor to prepare a very short affidavit in relation to the web site, what it was, what happened to it, when it was interrogated only a few days ago, so that your Honours will understand exactly what I am objecting to.

KIRBY J: Is there not a difficulty in that? If we granted special leave, we can only deal with the record. We could not enlarge the record, consistent with Mickelberg and Eastman, to include this additional material, so what is the use of including it now? I think you have some material that says there were three hits on the web site, so that you have already got material - it does not seem to me that you can enlarge what you had by an affidavit.

MR FITZGIBBON: Thank you.

KIRBY J: That is, at least, my response.

McHUGH J: Yes, I agree with that.

MR FITZGIBBON: Yes, thank you. There is just one further matter, if I might - and I do not wish to trouble the Court. There is an unreported decision of Melbourne v The Queen, of which I have caused copies to be made.

KIRBY J: I think it has been reported. It is in the Australian Law Journal Reports and the Australian Law Reports.

McHUGH J: And it is in the Commonwealth Law Reports.

KIRBY J: It is everywhere.

MR FITZGIBBON: For some reason it does not show that, your Honour, I am sorry.

KIRBY J: Never mind. You want to rely on it, so - - -

MR FITZGIBBON: I do wish to rely on it and it would be, I believe, of assistance to - it is the only real addition I wish to make to the written submissions which are in the application book.

McHUGH J: Yes, Mr Fitzgibbon.

MR FITZGIBBON: Yes, thank you. I have set out, I believe in some length in the submission, the draft notice of appeal and the answer to the applicant's reply to the respondent's submissions. I believe it is of importance to consider, very briefly, what happened. The jury was sworn out in this particular case on the Thursday, I am told somewhere around about 12 o'clock. Then it was brought to the attention of Mr Dane, QC, counsel for Mr Cogley at that time, of the existence of this Internet site. That was on the Friday, as I understand it, and then on the Saturday, as I understand it, the application was placed in front of the trial judge and, indeed, was argued on that Saturday morning.

Now, it is of some significance to realise that, in fact, there had been - and, indeed, there is reference to this in the judge's actual written judgment. I think it is important just simply to recap what happened. He proceeds on the basis that the entry was there for some time before the jury was isolated - I am reading from page 6 - and he also takes the view that probably a juror, or jurors, in fact had interrogated that site. I think it is important to bear in mind that what happened here was there had been a considerable amount of press publicity. Indeed, there had been numerous articles on the pros and cons of this particular site - more the cons than the pros, I might say.

So what the judge does, in effect, is this. He first has an application by Mr Dane to, in fact, ask the jury, I take it, on the basis of questions of whether, in fact, any of them had interrogated the site. He was not aware at that time that there had been two hits on the site that we are able to determine on 4 May. The trial commenced, your Honours, on 26 April and, in fact, the jury verdict was rendered on 13 May. So, on 4 May we have two hits on the site. There is a hit on the site on the 12th and the 13th. The view taken generally by the Court of Appeal was that that hit on the 12th could not have been by a jury member, but that belies a misunderstanding of how the Internet works and this site, in particular, as I read it. Indeed, it could have been any time on the 12th.

McHUGH J: Yes, but his Honour proceeded on the basis that the information had been there on CrimeNet for some time and there was a real risk that at least one of the jurors may have seen it. Notwithstanding that, his Honour said that the question was:

whether there was high degree of necessity to discharge this jury at this stage of the trial -

In the exercise of his discretion he refused to do so. Where is the error? Where is the special leave point?

MR FITZGIBBON: The error then is compounded, and my submission is this. He first of all asked to question the jury, that he refuses, then he refuses to give a direction to the jury as well, and that is particularly - - -

McHUGH J: But that is a matter that judges have to take into consideration, as to whether or not they may aggravate a situation.

MR FITZGIBBON: That is true, your Honour, and I do not cavil with that, but the difficulty here is this. With this particular site and what was on the site - indeed, photographs - indeed, there is reference to, in fact, the shooting dead of his business associate. There is a reference to him being a steroid abuser, reference to the fact he drunk a great deal on the afternoon and then, of course, there is reference to the defence, in fact, that had been rejected. The claim was that:

Hitchens had committed suicide but the jury and judge dismissed this as `a concoction'.

For that reason may I particularly refer to the part of the Melbourne judgment at paragraph 144, and there his Honour Justice Hayne, dealing with this very issue, says:

It is trite to observe that the jury, not the judge, are the sole judges of questions of fact. But that does not mean that a trial judge can leave all questions of fact to the jury without giving them any directions. The trial judge in a criminal trial must instruct the jury about some matters that affect how they set about finding the facts.

McHUGH J: Yes, I know, but is that not a long way removed from this case, when you look at what the judge said? He said that there had been all this publicity about CrimeNet and:

in view of the recent discussion and publicity -

the jury might:

infer that Cogley is a person worthy of being recorded on CrimeNet. The result would be worse than this entry, because the inference may be that he has previous convictions, which this entry does not set out.

Now, that was the ground that the judge thought he was doing him a favour.

MR FITZGIBBON: With respect, I believe not, because the fact of the matter is this, that in 1997 - - -

McHUGH J: It is not a question of what you believe, Mr Fitzgibbon. It is question as to whether or not the trial judge's discretion erred and, secondly, and perhaps more importantly, whether there is anything in the case that would warrant the grant of special leave by this Court. We do not sit as a court of criminal appeal.

MR FITZGIBBON: I am very aware of that, your Honour. Your Honour, it does, because it is my submission that, in fact, a direction would have, to the best knowledge available, at least cured the problem at that point.

McHUGH J: The judge who was there saw the jury and thought it would aggravate it.

MR FITZGIBBON: That, of course, your Honour, is the very difficulty that I am alluding to and the fact that with these Internet sites - and we must remember these events took place in 1997 - according to the latest Bureau of Statistics figures, Internet usage has increased by 500 per cent since then. So we are dealing with a situation where - - -

McHUGH J: I will take it they are legislative facts which this jury could take into account but - - -

MR FITZGIBBON: I do have those available but, like your Honour mentioned, the difficulty would be they are not in the application book at this time.

McHUGH J: No, that is not the point I was putting to you. The point I was putting to you, if they are legislative facts as opposed to adjudicative facts, then arguably they fall outside the Eastman-type prohibition on the reception of evidence in this Court, that is to say, it is a matter that this Court can take account of. In any event, you have told us that there has been a 500 per cent increase in Internet - - -

MR FITZGIBBON: Now, the difficulty is this, that, of course, Dane QC at that point in time is bound by the decisions he has made - and I refer to that. He is not aware of the very existence of his client on the site until the point where it is brought to his attention and then he moves as swiftly as he can. Indeed, his Honour goes on - and your Honours will have read this - that, in fact, his Honour on page 7 and 8, but particularly at page 8, deals with the very problems here and my instructions are that, indeed, the very next trial that came up in front of his Honour with a similar problem was, in fact, abandoned for that very reason.

KIRBY J: These things got quite a lot of publicity at the time.

MR FITZGIBBON: Yes, it had not got 10 days down the road, your Honour, I agree, but it does represent, in my submission, a very real and present danger. If the statistics are right, then one out of two households in Australia, in fact, has access to this very type of material. That, in my submission, presents a very, very real danger. Linked, in this case - and I bear in mind my time factor - I say we have two other very, very clear problems. They, of course, are the problem of the admission of Najmeddine's evidence - - -

McHUGH J: Well, Mr Dane wanted all the evidence in, did he not?

MR FITZGIBBON: That, your Honour, only is after he is faced with Hobson's choice, if I can put it this way. He is faced, first of all, with a reading to the jury. Then he is faced with a partial culled version to the jury. Then, finally, of course, he says, no, it would be far better in the circumstances for all of the matters to go in. Even then, of course, it apparently has not happened in that fashion. But even more important than that, I believe, as far as linkage is concerned, is this. This Internet site says Cogley, being a steroid abuser - and that must be borne in mind in my submission - then we have the problem - - -

KIRBY J: In the big picture of this case that would not seem to be a very significant matter. There are lots of very respectable athletes, Olympic medallists, who have used steroids.

MR FITZGIBBON: Yes, too many, your Honour, I agree, but may I put it this way - and perhaps I have put it very badly. The fact of the matter is the evidence against Cogley was, on the first trial in examination in-chief, that he had stopped using for two years. He was cross-examined by counsel at that time, who was Mr Rapke I believe, and once again the denial was two years. Then re-examination, the same thing. Then, on this trial - bearing in mind that he never gave evidence - the fact of the matter is that the only person who seems to give any evidence which is helpful in the issue is Najmeddine, who at page 77 of the evidence, under quite a prolonged questioning by Crown, Mr Horgan, who finally comes to the point, "When did you last see Cogley using steroids? Was it a week ago, a months ago, years ago?" He comes back to the point at where he says two years ago, and that is at page 77.

So what we have is this - and that is the very reason, of course, I have raised the Melbourne issues, and may I say they are highly material in the circumstances - here we have a case which in my submission and, indeed, in the Court of Appeal, my predecessor - she raised these very issues. She said it should never have gone in. It was prejudicial and it was of bad character and it was not put there for the purpose of anything else but proving that my client was a bad character.

KIRBY J: That is one theory. The other theory is it was to prove what would seem to be an extreme reaction on a particular day.

McHUGH J: Justice Chernov thought the evidence was admissible as part of the Crown's rebuttal of the applicant's case that he had no reason or motive to kill the deceased.

MR FITZGIBBON: The Crown, of course, then took a different position on it when taxed on the matter and they said that, in effect, they could not prove the cause of the rage or anger. All they could do was that they could say that the rage or anger was there.

McHUGH J: But the matter was opened by the Crown in his opening address. The prosecutor told the jury that the applicant took steroids and that the evidence would be led to show how they affected human behaviour and your counsel made no suggestion at that stage that the jury should be discharged or that the evidence was inadmissible.

MR FITZGIBBON: No, but, your Honour, I think it is only in fairness to point out that Mr Dane, in fact, sought a ruling from his Honour who ruled against him on that and, indeed, at the end of the day he said, "I must abide by your Honour's ruling". So it is not sufficient, in my submission, to say, as is said here, this was one of the many things that the jury could fetch down as a reason, be it drunkenness, steroids, What else could the jury reach for? That is the problem and when taken in combination with this Internet site, which is a problem that is not going to go away - it can only do anything but get worse and worse - in my submission leave ought to be permitted. Thank you for the extra time.

McHUGH J: Thank you, Mr Fitzgibbon. We need not hear you, Mr Horgan.

MR HORGAN: If your Honour pleases.

McHUGH J: We see no error in the treatment by the Court of Appeal of the issues that the applicant would wish to argue if special leave were granted in this matter. As to the publication of the criminal record of the applicant on the Internet site, the trial judge applied the correct test in determining the application to terminate the trial by discharging the jury. He also warned the jury in general terms against speculation concerning the first trial. In his judgment on the discharge application, he correctly noted that nearly all of the material on the Internet was already known to the jury from material led at the second trial. There is no special leave point in this complaint. Nor has any error been shown in the treatment of the Court of Appeal of the other grounds of appeal.

We are not convinced that any miscarriage of justice occurred in the conviction of the applicant in his second trial.

The application for special leave to appeal is dismissed.

AT 1.22 PM THE MATTER WAS CONCLUDED