Tognolini v The Queen [2011] VSCA 394 (30 November 2011)

Last Updated: 30 November 2011

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:

1 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.

2 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’.

3 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.

4 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 proper application of that principle, in cases where identity was in issue, would necessarily involve having regard to the kind of features which had been described in the earlier cases as a striking similarity or as a signature.^[2]

5 Similarly, as Mason CJ, Deane and Dawson JJ stated in Pfennig v The Queen:[3]

This passage^[4] should not be understood as asserting that ‘striking similarities’ or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.^[5]

And later in the joint judgment:

... striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics.^[6]

6 Ultimately, the question is not whether the means of commission of the crime is in each case the same or strikingly similar but whether the evidence sought to be admitted ‘is cogent enough to be admitted as proof of identification of this offender’.[7] Logically, that depends upon all the evidence in the case[8] and whether, when the putative similar fact evidence is considered in the context of all the evidence, its probative value sufficiently outweighs any prejudicial effect as to render its admission just.[9]

7 Understandably, cases concerning the admissibility of similar fact evidence tend to divide according to whether or not there is direct testimony of the accused’s commission of the offence charged.[10] Where there is no direct evidence of the accused’s commission of the offence charged, the need for striking similarity or signature is logically more likely to apply. But where there is some direct evidence of involvement apart from the similar fact evidence, the similar fact evidence need not be as ‘uniquely denominative’ of the accused, because it is not the sole means of identifying the accused,[11] and something less than striking similarity or signature is more likely to suffice.

8 So, too, if there is evidence which in some way connects an accused with a series of offences, as well as with the offence which is charged, then, even though it may fall short of striking similarity or signature, the combined effect of the evidence can render it so improbable that any person other than the accused committed each of the offences as to make evidence of all admissible.

9 In this case, there was evidence that each of the shopkeepers whose premises were burned down had dealings with the applicant some time before that happened; that, in the course of those dealings, the applicant demanded that the shopkeeper deal with him on terms which the shopkeeper found to be unacceptable; and that, when the shopkeeper declined to deal on those terms, the applicant made threats of consequences which, not long later, were followed by conflagration.

10 It followed that, when the similar fact evidence in this case was considered in context, it rendered it so improbable that a person other than the applicant burnt the shops that it would be an affront to common sense to exclude it.[12] Hence, the judge was right to admit it.

11 The second matter which I wish to mention concerns an error which the judge made in the course of his charge by referring to the balance of probabilities. As Judd AJA explains, his Honour’s reference to the balance of probabilities was so obviously inconsistent with his many references to the need for proof beyond reasonable doubt that it is bound to have been unintentional. Yet, remarkably, no exception was taken. That suggested that trial counsel did not consider that the slip was material.

12 In order better to assess the situation, the court adopted the course of viewing the video recording of the relevant part of the charge and receiving counsels’ further written and oral submissions on the effect of the recording. The exercise was most worthwhile. It strongly reinforced the impression, to which I had come on the basis of the transcript, that the error could not have affected the jury.

13 I mention the matter now because it seemed to be suggested at one point in argument that the court should not have viewed the video or at least should not place any weight on it. If so, I reject the suggestion. In the present state of technology available to the court, I cannot think of a better way of judging the effect of directions on the jury that by viewing the video recording in conjunction with a reading of the transcript.

NEAVE JA:

14 I have had the benefit of reading the draft reasons for judgment of Nettle JA and Judd AJA and agree with their Honours, for the reasons they give, that the application should be refused.

JUDD AJA:

15 The applicant, Terrence Raymond Tognolini, was initially presented for trial in the County Court on blackmail, arson and assaults charges. The alleged victims were the operators of six hydroponics businesses known as Duralite, Growlite, Holland Forge, Secret Garden, Festive Delights and Fastway. The applicant was a member of the Hells Angels Motor Cycle Club and operated a competing business known as Nefarious Hydroponics. The Crown alleged that he used his position as a member of the club to threaten and stand over the operators of competing businesses for the purpose of forcing them to deal with him or to cease to compete. The threats included the possibility of fire. Fires in fact occurred at the premises of five out of the six businesses. The Crown alleged that the applicant was responsible for each fire, which formed part of a pattern of intimidation of those who would not comply with his demands.

16 Prior to trial, an issue arose as to whether the Crown should be permitted to present the applicant on all counts in one trial, or whether separate trials should be ordered in relation to some of them. The applicant applied to have the charges in relation to Festive Delights, Holland Forge and Fastway dealt with separately,

leaving only the charges in relation to Duralite, Growlite and Secret Garden to be heard together. The application, made under s 372(3) of the Crimes Act 1958, seemed to proceed on the assumption that if the test for the admissibility of propensity evidence under s 398A of the Act was satisfied, so that it was just to admit the evidence despite any prejudicial effect it may have on the person charged, there was a proper basis to refuse the application.

17 The Crown maintained that the evidence on each count was cross admissible under s 398A of the Crimes Act 1958, as disclosing a pattern of behaviour connecting ‘stand-over tactics’ employed against each complainant resulting in deliberately lit fires. The pattern of behaviour included demands by the applicant that the complainants market his products. If his demands were refused or not wholly embraced, there was a threat of fire. In all instances, but for Holland Forge, where the complainant complied with the demands, there was a fire. There was no direct evidence of the applicant’s involvement in any of the fires.

18 The applicant had conceded the necessary degree of connection between the events at or in relation to the Duralite, Growlite and Secret Garden businesses so as to satisfy the requirements for the cross admissibility of the evidence in relation to those counts, and thus a single trial of those counts. Following argument, the trial judge ordered a separate trial only for the Festive Delights counts, finding that the other counts should be dealt with at one trial.

19 The applicant, initially presented on 19 counts, pleaded guilty to count 14, a charge of assault against John Ribeiro, an owner of the Fastway business. The applicant was acquitted by direction, at the conclusion of the Crown case, on counts 8 and 10. They were charges of blackmail in relation to the Holland Forge and Fastway businesses respectively. He was convicted on 6 October 2009 on 14 counts, but acquitted on counts 2 and 12. Count 2 was a charge of arson in relation to the Duralite business premises; and count 12 was a charge of arson in relation to the Fastway premises at Footscray. The applicant was sentenced on 19 January 2010 to terms of imprisonment resulting in a total effective sentence of 12 years and 8 months. The applicant sought leave to appeal against conviction and sentence, although by the time of this application he had abandoned his appeal against sentence.

20 The applicant advanced four grounds of appeal. As the hearing of his application progressed, it became apparent that the principal ground, and the one I found most troubling, had not been prominently expressed in the grounds of appeal or in the written submissions filed prior to hearing. That was a challenge to so much of the charge as related to the cross-admissibility of evidence. The applicant contended that the charge was so incomprehensible that no jury could have worked out what the trial judge was talking about. The pleaded grounds may be summarised as follows:

(1) The failure of the trial judge to order separate trials in respect of the counts relating to the Holland Forge business (6, 7 and 8) and the Fastway business (10, 12, 13, and 15 to 19), resulted in a substantial miscarriage of justice.

(2) The trial judge failed to direct the jury in relation to admissions made by the applicant.

(3) The trial judge misdirected the jury on similar fact evidence and circumstantial reasoning in relation to counts 4, 5 and 11. Counts 4 and 5 charge arson at Growlite premises at Thomastown and Campbellfield, and count 11 charges arson at the Secret Garden premises at Greensborough.

(4) The trial miscarried by reason of the accumulation or the aggregation of some or all of the errors alleged in the foregoing grounds.

21 The applicant’s case changed shape during the course of his submissions. The ground challenging the failure of the trial judge to give appropriate directions in relation to admissions was abandoned. His central complaint became a contention that the charge was so confusing and incomprehensible as to cause the whole trial to miscarry. In oral submissions, counsel for the applicant described parts of the charge as ‘incomprehensible’ and the charge as a whole as ‘hopeless’. The applicant argued that much of the confusion in the charge was brought about by the attempts of the trial judge to direct the jury on the use that could be made of the evidence in relation to the arson counts. The broad challenge to the charge included within its scope Grounds (3) and (4), which in turn included complaints about a reference to the civil standard of proof as the applicable standard, and also overlapped with Ground (1).

22 At the core of Ground (1) was the contention that the trial judge should have directed the jury that they could only use the similar fact evidence to identify the applicant if they were satisfied that there was a ‘striking similarity’ in the manner in which the arson attacks had been carried out, or that they were so similar as to leave a ‘signature’ that could then be linked to the applicant.

23 Because of the significance to the Crown case of the cross-admissibility of evidence in relation to the arson counts, it was important to understand how the Crown put that case. In the course of argument on the severance application, the Crown made it clear that it sought to rely upon the cross-admissibility to point to guilt by ‘probability reasoning’. That is, the improbability of two or more seemingly independent events occurring in the absence of a common element. It submitted,

The common elements here are the threats, the blackmail, the extortion effectively by the accused over those business people, followed by their businesses going up in flames.

24 The Crown argued on the severance application that the pattern of the applicant’s behaviour in relation to each of the businesses, and the resulting fires, made the evidence cross-admissible to establish the improbability of coincidence between the accounts of the various witnesses, leading to the inescapable inference that it was the applicant who was responsible for each of the fires.

25 In its Summary of Prosecution Opening, the Crown contended that,

In this case the prosecution says that the jury can use the evidence against the accused regarding each offence as evidence against him in relation to the others. This is so because the Crown case is that there is a strong degree of underlying unity between his conduct towards his victims, that his modus operandi followed a distinctive pattern. In this way, although there is no direct evidence of the accused lighting the fires or ordering them to be lit, the
inescapable inference is that he was responsible. In some cases, the inference is strengthened by admissions made by the accused to lighting fires.

26 Before this court the applicant posed three necessary steps that he submitted had been overlooked by the judge when deciding not to sever the charges, and when directing the jury on the cross-admissibility of the evidence on the arson counts. First, it was necessary to enquire whether the evidence was such as to connect each arson by some ‘striking similarity’ or ‘signature’. Secondly, the judge should have asked whether the evidence identified the applicant as the arsonist. Thirdly, the judge should have directed the jury that they may only convict if satisfied beyond reasonable doubt of the applicant’s guilt on each count?

27 This is not a review of the reasons of the trial judge for refusing the application to sever the Holland Forge and Fastway counts. The proper exercise of that discretion may involve a more wide ranging enquiry into the prejudice or embarrassment to the defence of an accused person, than the enquiry called for under s 398A(2) of the Act. The applicant did not contend that the approach taken by the trial judge, in which he focussed attention on s 398A when deciding whether to sever the counts, was incorrect, other than to complain that he applied the wrong test when permitting the cross-admissibility of evidence in relation to identity. The way in which the argument developed before the trial judge, and the manner in which his Honour considered the issues, may be no more than an example of what Winneke P said in R v Papamitou [13] concerning the exercise of the discretion to sever. The President said,

... it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will – in most cases – be a powerful factor influencing the discretion.

28 That observation by the President was not intended as a general endorsement of such an approach. There will be cases in which it will be of the utmost importance to focus attention on the source of the power to sever, and the scope of that discretion.

29 In this context it is important to reflect on the task of this court on appeal against conviction, when a challenge is made to the correctness of a ruling, such as that made by the trial judge. In Demirok v R,[14] the Full Court said,

When the judge's exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge's discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge's decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge's discretion miscarried, but simply that because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.^[15]

30 In its Summary of Prosecution Opening read to the court by the Crown as part of its argument on the severance application, the Crown alleged that the applicant employed stand-over tactics, utilising fear and apprehension engendered in his victims by flaunting his membership in the Hells Angels, to either force the business owners to deal with him or to extinguish his competition. The Crown alleged that his object was to establish and maintain a foothold in the hydroponics products industry. It alleged that these tactics involved blackmail, threats, assaults and arson attacks. It alleged a pattern of strong-arm tactics and retribution directed to those who chose to stand up to the applicant. Following is a summary of the Crown case in relation to each business, and the outcomes at trial.

31 Duralite Horticultural Supplies was owned by David Francis and operated from premises at Heatherton. The business manufactured and sold hydroponics nutrients. On 7 November 1996 the applicant went to the premises with another and demanded that an employee of the business provide him with the nutrient formulae for its customers. When the employee refused, the applicant became aggressive and threatened violence, that he would burn the business. A few days later the applicant met with the owner of Duralite and demanded the nutrient formula. Mr Francis refused. The applicant said that a fire could be arranged and business would be made difficult. Mr Francis then agreed to supply some chemicals to the applicant but in December 1996 told the applicant that he would no longer deal with him. On 28 January 1997 the Duralite factory at Heatherton was damaged by a fire that had been deliberately lit using an accelerant and firelighter.

32 The events in relation to the Duralite business were the subject of count 1 (unwarranted demand with menaces) and count 2 (arson). The applicant was convicted on count 1, but acquitted of the charge of arson in count 2.

33 Stephen Mustica operated Growlite Australia Pty Ltd, which produced hydroponics nutrient and made hydroponics equipment. The company had factories at Thomastown and Campbellfield. In about May 1997 the applicant, wearing a Hells Angels jacket, approached Mr Mustica and demanded that he purchase and stock the applicant’s products for sale in his business. When Mr Mustica refused, the applicant became aggressive and referred to recent fires in the industry. The applicant said that he had the backing of the Hells Angels. On 26 June 1997 the Growlite premises at Thomastown was deliberately set on fire. On 23 July 1997 the Campbellfield shop, which had been opened only about a month earlier, was deliberately set on fire. Surveillance footage available at the premises revealed an unidentified man smashing a hole in the window and pouring accelerant inside, and then setting it alight. Soon after the Campbellfield fire the applicant and another walked in to the shop. There was a confrontation and the fire was mentioned.

34 The Growlite events are the subject of counts 3 (demand with menaces), 4 (arson at Thomastown), and 5 (arson at Campbellfield). The applicant was convicted on each count.

35 Graham Plummer was the owner of Holland Forge Hydroponics Supplies which made, imported and sold by wholesale, plant nutrients and hydroponics equipment. In June 1997 the applicant demanded that Mr Plummer stock his products. When the applicant made his demand he was wearing clothes indicating his membership of the Hells Angels. He demanded a donation of $1000 for the Hells Angels ‘Right to Ride’ Fund. The applicant asked Mr Plummer if he was proposing to open a shop in Greensborough. When Mr Plummer responded in the affirmative, the applicant said words to the effect that ‘that was not going to happen’. The applicant demanded that Mr Plummer carry his range of products. At the time of his first meeting with Mr Plummer, the applicant demanded that he, Mr Plummer, produce his drivers licence. Mr Plummer did so and the applicant indicated that he now knew Mr Plummer’s home address. Following the demand for a $1000, Mr Plummer gave the applicant $500 and a gift voucher for $500. Mr Plummer commenced to do business with the applicant, and some time later began to pay ‘a royalty’ on a growing material sold by Mr Plummer.

36 The events relating to Holland Forge are the subject of counts 6, 7 and 8, all of which are charges of unwarranted demands with menaces. There was no fire at the Holland Forge premises. The applicant was convicted on counts 6 and 7, but acquitted by direction at the conclusion of the crown case, on count 8.

37 The Secret Garden Hydroponics was a business operated by Mark Hughes and Tani Zubervic. A few months after opening their shop in 1996, they were approached by the applicant who demanded that they stock his nutrients. The applicant was wearing clothing that bore a Hells Angel identification patch. Mr Hughes told the applicant that he would only take his product on consignment. The applicant initially rejected the proposal, although later placed some of his products at the Secret Garden premises. They failed to sell. The applicant brought more stock to the shop, and left an invoice demanding payment. During a visit by the applicant in September 1997 he showed Ms Zubervic what appeared to be the butt of a gun tucked into his trousers. He proceeded to stack shelves with his goods and told her that she had 30 days to pay for the stock. The applicant later demanded payment from Mr Hughes in October 1997, but he refused, complaining that he had not ordered the stock. The applicant became angry and demanded return of the goods. They were returned by courier. On 16 January 1998 the Secret Garden premises at Greensborough were damaged by a deliberately lit fire.

38 The events relating to the Secret Garden business are the subject of count 9 (unwarranted demand with menaces) and count 11 (arson). About six months after the fire at the Secret Garden premises in Greensborough, Mr Plummer, the owner of Holland Forge, was told by the applicant that he was now free to open his store in Greensborough. The applicant was convicted on counts 9 and 11.

39 Putting to one side the events in relation to Festive Delights, which were the subject of the severed counts, the final chapter in the course of events concerned Fastway Hydroponics, which had premises in Footscray. The Crown alleged that for approximately six years after commencing the business John and Manuela Ribeiro were stood-over by the applicant. It alleged that they were threatened, assaulted and were forced to pay money and to stock the applicant’s products which they neither wanted nor needed.

40 In early 1998 the applicant approached Mr Ribeiro, identifying himself as a member of the Hells Angels, demanding that Fastway stock his products. The applicant was told by Mr Ribeiro that he did not need the applicant’s products and would not pay for them. He did, however, agree to take products on consignment. The products did not sell but the applicant demanded his money. Mr Ribeiro said that he would not pay because he had not sold the products. The applicant was invited to, but did not, collect his goods. Mr Ribeiro disposed of the goods by dumping them. He did, however, pay an invoice sent by the applicant.

41 In 2001, Fastway commenced to manufacture hydroponics tubs and sold them at its store and through other stores. The applicant also made tubs, and in mid-2002 told Mr Ribeiro to stop selling the products. When he refused, the applicant became angry. Shortly afterwards, on 15 July 2002, the Footscray factory of Fastway was completely destroyed by fire. Property and stock losses were approximately $1 million.

42 About six months after the fire at Footscray, Fastway opened another business in Geelong Road. The applicant visited Mr Ribeiro and demanded $20,000, and that Fastway stock his products. During 2003 Mr Ribeiro was visited by a number of different men on behalf of the applicant, demanding payment and making threats. In December 2003 the applicant went to the Fastway business premises and demanded payment. He placed Mr Ribeiro in a headlock and sprayed him with a fluid from a spray pack, struck him and threatened to burn the premises and Mr Ribeiro. He also demanded a fish tank. The visit was captured on security video and a spray pack of the same type used to spray Mr Ribeiro was later found at the applicant’s business premises in Coburg. The applicant had pleaded guilty to count 14, the related charge of assault.

43 At about that time an employee of Fastway, Drew Colosomo, offered to mediate between the applicant and Mr Ribeiro. It would appear that Mr Colosomo had been recruited by the applicant to help extract money from Mr Ribeiro. The arrangement between Mr Colosomo and Mr Ribeiro was established through telephone intercepts. Mr and Mrs Ribeiro had sought the assistance of the police who arranged the intercepts. On 23 December 2003, the Ribeiros and Mr Colosomo went to the Hells Angels’ club house in Thomastown where they paid the applicant $10,000. A further $10,000 was paid to the applicant through Mr Colosomo. While at the club house, the Ribeiros were searched for listening devices. While Ms Ribeiro was searched the applicant rubbed her breasts. Thereafter the Ribeiros traded with the applicant, paid the further $10,000 and supplied the fish tank.

44 The events relating to Fastway and the Ribeiros are the subject of counts 10 (unwarranted demand with menaces), 12 (arson), 13 (unwarranted demand with menaces), 14 (assault on Mr Ribeiro), 15 (threat of arson), 16 (demand with menaces), 17 (demand with menaces), 18 (indecent assault of Ms Ribeiro), and 19 (demand with menaces). The applicant was acquitted by direction on count 10 at the conclusion of the crown case, acquitted by the jury of the charge of arson in count 12; and convicted on all other related counts. He had entered a plea of guilty in relation to count 14.

Ground( 1) – Failure to Sever

45 The applicant accepts, as he must, a burden to establish a substantial miscarriage of justice.[16]

46 The applicant emphasised that the only live issue on the arson counts was the identity of the perpetrator. He submitted that in such circumstances it was not enough that there be a mere underlying unity or a pattern of conduct disclosing an alleged modus operandi. There needed to exist evidence of a ‘striking similarity’, or a pattern amounting to a ‘signature’, enabling a jury to reason that the person who lit the fire or ordered the arson at one premises was the person responsible for one or more of the fires at the other premises. The applicant submitted, by reference to the evidence at his trial, that there was nothing distinctive about the fires and nothing to connect him with any of them.

47 The applicant called in aid passages from the judgment of Winneke P in R v Tektonopoulos [17] to contend that the only pathway to the introduction of similar fact evidence to identify the accused as the arsonist was a striking similarity or signature in the arson attacks. He relied on the following passages:

However, as Callaway, J.A. pointed out in Best (at 612), the flexibility of the test now provided in s.398A (2) ‘means that, properly applied, it will not greatly alter the conduct of criminal trials’. This is because, as his Honour said, propensity evidence will be admissible whenever it is just to do so ‘in all the circumstances’; and the circumstances will sometimes include the impossibility of conducting the trial in a sensible fashion unless the evidence is received. The fact is that the test which s.398A (2) now requires is not far removed from the test which was customarily applied in Australia before Hoch (supra). In Sutton v. R. [1984] HCA 5; (1984) 152 C.L.R. 528, Brennan, J. described the test of admissibility as follows (547-8):

Before the trial judge is at liberty to admit similar fact evidence he must be satisfied that the probative force of the evidence clearly transcends its merely prejudicial effect ... . It is the probative force (or cogency) of the evidence in comparison with the impermissible prejudice that it may produce which determines admissibility ...
This test required the judge to balance probative force against prejudicial effect. The test now described in s.398A (2) is, as I have said, not far removed from that test because, as Toohey, J. said in Pfennig’s case (507):
Evidence that an accused has committed other relevant offences must inevitably have a prejudicial effect. But, in the language of Director of Public Prosecutions v. P., it may nevertheless be ‘just’ to admit the evidence. The reference to just aptly conveys the notion that it is not only the interests of the accused that are involved. The legitimate interests of the Crown and of the community cannot be overlooked.

It was not the intention of s.398A (2) to set at nought the body of common law principles which courts in this country and England had formulated over a period of more than 100 years, commencing with Makin v. Attorney-General (NSW) [1894] A.C. 57, which were designed to guide and inform as to the circumstances in which propensity evidence will satisfy the ultimate test of admissibility. The effect of these principles is that evidence of the commission of offences other than those charged, or indeed evidence of conduct which shows generally that the accused is a person of bad character, is prima facie inadmissible because the antipathy which it is apt to engender may unjustly erode the presumption of innocence (Sutton v. R. [1984] HCA 5; (1984) 152 C.L.R. 528 at 545 per Brennan, J.; Perry v. R. [1982] HCA 75; (1982) 150 C.L.R. 580 per Murphy, J. at 593-4). Before such evidence may be admitted it must have such a probative force in relation to the offence charged as to justify its admission notwithstanding its inherent prejudicial effect (cf. Sutton’s case, supra, per Dawson, J. at 565).

...

However, when the propensity evidence sought to be tendered, whether in sexual cases or not, is in the nature of ‘similar fact’ evidence, the courts will only receive it with great caution because it is in such cases that the risk of prejudice is ordinarily at its highest. 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. Although the House of Lords in Director of Public Prosecutions v. P., supra (a case in which the accused was alleged to have committed sexual offences against multiple complainants) rejected the proposition that ‘striking similarity’ was an essential pre-requisite of admissibility of similar fact evidence in all cases, Lord Mackay of Clashfern L.C. (with whom the other Law Lords agreed) said:

Where the identity of the perpetrator is in issue, and evidence of this kind [that is, propensity evidence] 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. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.

48 The applicant also relied on a perceived distinction made in R v Papamitrou,[18] a decision of the Court of Appeal in which Winneke P said,

In this case, the issue was whether the offences had been committed; not the identity of the person who had committed them.

49 In Papamitrou, the Court of Appeal was concerned with a case in which an accused had been convicted on 15 counts of sexual offences of various kinds against six different complainants. The offences were all alleged to have occurred between August 1999 and November 2000 at a time when the accused was aged between 28 and 29 years; and the victims were all adolescent girls between the age of 15 and 18 years. As with the present case, the trial judge had refused to sever counts. In his reasons for judgment, the President (with whom Ormiston and Buchanan JA agreed) considered a submission to the effect that there was an insufficient connecting link or underlying unity between the evidence of the various complainants to warrant the judge’s conclusion that their evidence was cross-admissible. Winneke P said [19] of the purpose and scope of s 398A:

The purpose and scope of these provisions was considered by this court in R v Best. That decision makes it clear that the purpose of the section was to displace the ‘no other reasonable explanation’ test for admissibility of ‘propensity evidence’ as developed by the High Court in Hoch v R and Pfennig v R in favour of the ‘just to admit the evidence despite its prejudicial effect’ test enunciated by the House of Lords in Director of Public Prosecutions v P. Evidence which is broadly described as ‘propensity evidence’ will now be admissible provided that it is ‘relevant to facts in issue in a proceeding’ and if the court considers that ‘in all the circumstances it is just to admit it despite any prejudicial effect it may have ...’. Issues arising as to the reliability of the evidence on account of possible collusion, collaboration or innocent infection are for the jury to decide.

50 In his directions to the jury, the trial judge described the Crown case in the following terms:

...the prosecution case is that there is a strong degree of underlying unity between Mr Tognolini's conduct toward the alleged victims and that his conduct or his modus operandi, method of operating, his operation follows a distinctive pattern...
...although there is no direct evidence of Mr Tognolini lighting the fires or ordering them to be lit, the inescapable inference so the Crown says is that he, Tognolini, was responsible for these fires when you look at all the evidence.
It is said by [the prosecutor] that because of the alleged similarities or the pattern or the modus operandi, then on each of these arson counts, then you can draw an inference that Terry Tognolini was the person who committed or caused to be committed, the fires...

51 In my opinion, the applicant’s contention that the trial judge should have directed the jury by reference to the need for some ‘striking similarity’ or ‘signature’ placed an unnecessary limitation on the scope and operation of s 398A of the Crimes Act. As Winneke P said in Tektonopoulos,

Whether the propensity evidence has the requisite degree of probative force in relation to the crime charged so as to render it ‘just’, for the purposes of s.398A (2), to admit it must necessarily be decided on a case-by-case basis. For that reason it is not possible to develop a set of guidelines which can be universally applied. It would, however, appear from authority and practice that the nature of the evidence sought to be tendered and the purpose to which it is proposed to be put has a part to play. Indeed, ever since R. v. Ball [1911] A.C. 47, it does not seem to have been doubted that, in a sexual offence case, evidence of criminal or other discreditable conduct is admissible to establish the ‘guilty relationship’ or ‘sexual passion’ existing between the complainant and the accused provided that suitable warnings are given by the judge to the jury against its impermissible use. As Callaway, J.A. said in Best (at 612):

It must, however, be pointed out that the difficulties of applying the Pfennig case to relationship evidence do not apply to the test in [s.398A (2)]. So long as the qualifications expressed earlier are not forgotten, it is appropriate that any division of propensity evidence be inadmissible unless its probative value makes it just to admit the evidence despite any prejudicial effect it may have on the accused. Mere background evidence (cf. Gipp v. R. (1998) 155 A.L.R. 15; 72 A.L.J.R. 102 at [179] [181]-[182] per Callinan, J.) is unlikely to meet the test but legitimate evidence of relationship will usually be admitted. That is because, if proper directions are given, the probative value of such evidence ordinarily outweighs its prejudicial effect.
Furthermore, in cases other than those involving sexual offences, ‘relationship’ evidence disclosing discreditable conduct on the part of the accused has been admitted to prove motive or to explain the conduct of the accused (Wilson v. R. [1970] HCA 17; (1970) 123 C.L.R. 334).

52 To confine the discretion as the applicant would have it, subverts the purpose of s 398A, which directs attention to a ‘just to admit the evidence despite its prejudicial effect’ test. There can be no doubt that the facts of a particular case may dictate a need for a ‘signature’ where, for example, there were a number of fires that were started in a distinctive way and it was established that the accused lit a particular fire in the same way. In such a case, it may be necessary to establish a ‘striking similarity’ in the modus operandi in order to connect the accused with the other fires. Such a degree of connection might logically be required if the proximity of the accused to the other fires, and the manner in which they were lit, was the only connecting factor to identify the accused as the perpetrator. That is not this case.

53 In CW v R,[20] the Court of Appeal was concerned with the cross-admissibility of evidence under s 98 of the Evidence Act 2008, in connection with three counts or arson. Notwithstanding a different statutory regime, the reasoning of the court applies with equal force in the present context. The Crown had relied on coincidence evidence to establish that it was the accused who lit the fires. In a joint judgment[21] the court said:

... Although there were some similarities between the fires, to which we refer below, the prosecution disavowed reliance on any ‘hallmark’ or ‘signature’ feature(s) of the fire-setting itself. Instead, the crucial circumstance was said to be the existence of a hostile relationship between the applicant and the target of each fire. In the case of fires B and C, the target was said to be the occupier of the premises. In the case of fire A, however, the target was said to be a person formerly employed by the applicant.

...

To establish the probative value of the evidence, the prosecution relied on what are sometimes referred to as the ‘poisoning cases’. Specific reliance was placed on the following passage from the judgment of Gibbs CJ in Perry:^[22]

Clearly on principle it is not admissible, on a charge of murder or attempted murder by poisoning, to give evidence that the accused has poisoned other persons, where that evidence shows no more than that the accused is a poisoner – one who has a tendency to poison others. However, where a number of poisonings have occurred, and the victims have all been associated with the accused person, the evidence of the other poisonings may be admissible to support the inference that the accused was responsible for the death in issue, because it would be contrary to ordinary experience that a series of poisonings, caused by accident or suicide, would occur by coincidence in the circle of persons with whom the accused was associated.

The prosecutor submitted that the second part of this passage could be adapted to the present case, on the basis that each of the fires caused – or, in the case of Mr Eva, was intended to cause – harm to a business associate of the applicant with whom he was in dispute. For this purpose, the applicant’s business associates would constitute ‘the circle of persons with whom [he] was associated.’ Thus adapted, the statement of principle by Gibbs CJ could be restated in these terms:

... where a number of fires have been lit, and the victims have all been associated with the accused person, the evidence of the other fires may be admissible to support the inference that the accused was responsible for the fire in issue, because it would be contrary to ordinary experience that a series of deliberately-lit fires would occur by coincidence in the circle of persons with whom the accused was associated.

In Perry,^[23] Gibbs CJ also referred to the respective judgments of Dixon and Evatt JJ in Martin v Osborne,^[24] as showing that

it is the improbability that a number of deaths would occur in similar circumstances merely by coincidence that gives the evidence its probative force in such cases.^[25]
The same could, of course, be said of a number of deliberately-lit fires occurring in similar circumstances.

The argument for the applicant was that the present case was distinguishable on the facts, in that the class of business associates was much wider, and more diffuse, than the groups of persons (characterised as ‘small family circles’) under consideration in the poisoning cases. Hence, it was contended, the mere fact that all three victims of these fires were members of that class did not give the evidence any particular probative force. We disagree. Not only was each victim a person with whom the applicant had had business dealings, but he was in a current dispute with each of them. In the circumstances, the judge was entitled to conclude, as would the jury as the tribunal of fact, that (in the language of Perry^[26]) it would be contrary to ordinary experience for this series of fires, affecting these particular victims, to have occurred by coincidence.
In the course of her reasons, the judge referred to the judgment of Winneke P in R v Papamitrou^[27] and said:

... The ‘underlying unity’ here is the evidence of motive connecting the accused to the premises of the fires. It is that evidence here, which gives the evidence its significantly probative force.^[28]
Counsel for the applicant contended that her Honour erred in thus concluding that motive was the ‘underlying unity’ connecting the applicant to all three fires.

Whatever assistance may be derived from the reasoning in Papamitrou^[29] in determining questions under ss 97 and 98 EA,^[30] the present case concerned a quite different kind of coincidence reasoning, as we have explained. Nevertheless, her Honour was quite correct to view the applicant’s hostility towards each of the victims as the key feature of the circumstances giving the evidence its probative value. As the prosecutor pointed out, Gibbs CJ in Perry^[31] treated motive as a relevant circumstance in just this way.
Counsel for the applicant contended, further, that it was necessary for the prosecution to show some ‘striking similarity’ in the circumstances, before it could be concluded that the evidence had significant probative value. He relied for this purpose on statements in the authorities that, where what was in issue was not whether a crime had been committed but the identity of the perpetrator, a stringent requirement of similarity should be applied.^[32] With respect, this submission is misconceived. As we have already explained, the basis of the coincidence reasoning in a case such as the present is quite different. It relies on the existence of a relationship which uniquely links the accused person with two or more victims of similar crimes. There is no separate requirement of ‘striking similarity’.

54 While the evidence disclosed some similarity in the way the fires were started, that was not the primary connecting factor upon which the Crown case against the applicant depended. There was an evident pattern of behaviour on the part of the applicant that was before his Honour at the time of his ruling, and the existence of the pattern was established on the evidence at trial. The applicant sought to advance his own business and eliminate competition by approaching the operators of competing businesses, threatening them with fire, or alluding to the risk of fire, and demanding their commercial cooperation. In those instances, where commercial cooperation was not forthcoming (Duralite, Growlite, Secret Garden and Fastway), there were fires. In the case of Holland Forge, where there was cooperation with the applicant’s demands, there was no fire. After the Duralite fire, the applicant made mention of fires in the industry to Mr Mustica. The Growlite fires occurred on 26 June 1997 and 23 July 1997. Following the Secret Garden fire on 16 January 1998, the applicant informed Mr Plummer, of Holland Forge, that he was free to open a shop at Greensborough. Following the Fastway fire on 15 July 2002, Mr Ribeiro said that when the applicant placed him in a headlock and sprayed him with a chemical, he said ‘This time it’s going to be you, going to burn you, not the business’.

55 While the approach taken by the counsel and the trial judge was to consider the exercise of the discretion to sever by reference to the test to be applied under s 398A(2), that approach did not itself give rise to any substantive error merely because s 372(3) of the Act was not expressly mentioned. As in Papamitrou, a consideration of whether it was ‘just to admit the evidence despite its prejudicial effect’ was a sound basis upon which to consider the severance question. In my opinion there was no discernible error in the approach taken by the trial judge when refusing to sever the counts. Moreover, there was an ample basis for the cross-admissibility of the evidence in relation to the arson counts under s 398A of the Act. Contrary to the applicants submissions, the fact that there was no fire at Holland Forge was not a distinguishing feature. It was entirely consistent with the modus operandi because Mr Plummer had complied with the applicant’s demands.

56 The factual analysis undertaken by the trial judge, with the assistance of submissions from counsel, was necessarily confined to the depositions. The evidence at trial was not a perfect reflection of the depositions. There may be circumstances in which the state of the evidence sufficient to support a refusal to sever counts may change to such an extent that it will bring about a substantial miscarriage of justice. But that is not the applicants complaint. Ground (1) is concerned with the circumstances in which evidence in relation to the arson counts may be cross admissible. The point made by the applicant was that it was necessary to show a ‘striking similarity’ or ‘signature’ before the evidence may be so used.

57 The point of distinction relied upon by the applicant, as the basis for his contention that there was a manifest error in the reasoning of the trial judge, and that upon a proper analysis of the evidence at trial the Holland Forge and Fastway counts ought to have been severed from the others, is without substance. It matters not that the trial judge did not specifically allude to the concepts of ‘striking similarity’ and ‘signature’. There were other special or unique features about the applicant’s conduct in relation to each business that connected him with the fires that occurred. The decision of the trial judge not to sever the Holland Forge and Fastway counts was demonstrably correct. Accordingly, Ground 1 fails.

Ground (3) – Inadequate Directions on Similar Fact Evidence

58 Ground (3) of the appeal is predicated in part on the contention that the failure of the trial judge to recognise the distinction between similar fact evidence led for the purpose of identity on the one hand, and to prove the commission of an offence on the other, led him into error in his charge to the jury. He submitted that the jury were told that the sole issue for their determination on the counts alleging arson was whether the applicant was responsible, but they were not told that before they could use the evidence in respect of one business in proof of his alleged arson at another premises, they must be satisfied that the events disclosed a ‘striking similarity’ to one another, such that no hypothesis was reasonably open other than that the same person was responsible. The applicant submitted that the fact that the jury acquitted him on the charge of arson at the Duralite premises at Heatherton and the Fastway premises at Footscray supported the contention that the error was material. He submitted that had the jury been asked to consider whether the same evidence disclosed a ‘striking similarity’ or ‘signature’, one or more of their number may not have been satisfied of the applicant’s guilt in respect of the fire at the Growlite premises at Thomastown, the Growlite premises at Campbellfield and the Secret Garden premises at Greensborough.

59 The applicant further submitted that the foregoing errors of the trial judge were further compounded by his reference to the ‘balance of probabilities’ in the context of giving directions on the manner in which the jury was to assess the credibility of the various accounts of the witnesses for the purpose of drawing inferences and the fact that they gave similar accounts.

60 It is under this Ground (3) that the applicant draws together a number of themes to contend that the directions ‘were at best prone to confuse and at worst inadequate and such as positively to have mislead the jury’. Thus, this ground should be considered with Ground (4).

61 The applicant submitted that the reference to the ‘balance of probabilities’ would so erode the criminal standard and confuse the jury as to the appropriate standard of proof to be applied. That deficiency, coupled with those parts of the charge in which the trial judge attempted to explain the way in which the jury might use cross-admissible evidence, made the charge so incomprehensible that no jury could have worked out what the trial judge was talking about. The applicant submitted that the delivery by the trial judge was quaint and avuncular, but did not assist the jury as to the approach it should take.

62 The applicant dealt with the fact that no exception was taken to any of these points by contending that the charge was so incomprehensible that it was beyond redemption by any correction that could have been made by the trial judge.

63 In the course of argument it was proposed that the court might be assisted by viewing the video recording of the relevant parts of the charge. This proposal, emanating from the court, was in response to a debate as to whether a proper construction of the transcript, at the point at which the trial judge had used the phrase ‘balance of probabilities’, was to take what followed as an intended correction of a slip.

64 Because of the way in which this part of the applicant’s case ultimately developed it is necessary to set out that part of the charge which the applicant contended was relevantly incomprehensible and gave rise to a substantial miscarriage of justice. Before doing so it should be noted that the charge extended over two days. The applicant complained about parts of the charge on the second day. On the first day (30 September 2009) the judge commenced his charge by drawing a clear distinction between the civil and criminal standards of proof and gave a conventional instruction in relation to the way in which the jury should go about drawing inferences. The jury was informed that the Crown relied upon inferences to establish that it was the applicant who was responsible for the fires. His Honour emphasised that the jury must be satisfied of the inference beyond reasonable doubt. His Honour said,

Now when you are dealing with a criminal trial where it is proper and acceptable to draw inferences and, in fact, the Crown is asking you to do that very thing you would be in error if you relied on the weak inferences as I gave to you as a useful hypotheses in our everyday life; that you could never rely on such an inference, that is, the telephone inference to convict anybody of a crime because those facts are insufficiently proved. There is too many alternatives; there is just so many. The reasoning leaves open all sorts of other possible conclusions, so that inference is just a daily one that you could use but never in a criminal trial. In a criminal trial you must be careful about the inferences you draw and I give you the following direction in that regard.
You must not draw an inference as to the existence of an element of the crime charged, or of the guilt of Mr Tognolini unless you are satisfied beyond reasonable doubt of facts necessary to the process of reasoning involved and are satisfied also that the inference is the only reasonable inference to be drawn from those facts. Now you have been invited to draw inferences in this trial. I will remind you again tomorrow when we get to that particular point; be very careful. Scrutinize the evidence extremely carefully now before you draw an inference. It must be an inference that stands up to the beyond reasonable doubt test.

65 Importantly, the trial judge gave a direction to the effect that each charge must receive separate consideration, confined to the evidence in relation to that charge. His Honour said,

However, you must not allow convenience to usurp justice. Mr Tognolini is entitled as is the Crown to a separate consideration by you of each crime charged. It may be that the same logic applies to two or more of those charges and as a matter of reason that logic will dictate the verdict in each such count. But it would be quite wrong, absolutely wrong to say that simply because you find Mr Tognolini guilty, or not guilty of one count that he must be guilty, or not guilty as the case may be of the other. Each count must be considered separately in the light of the evidence which applies to it and you must ask yourself as to each count separately, ‘Am I satisfied beyond reasonable doubt by the evidence that he is guilty of this crime?’
If that question is answered, in your judgment, ‘Yes’, you should find the accused guilty of that count. If it was answered ‘No’, you should find the accused not guilty of it.

66 Having given that direction, the trial judge then proceeded to use the analogy of opening drawers in a chest of drawers to look at the evidence in relation to each count. Each drawer represented a count and the evidence in respect of each count was to be found in each drawer. His Honour said,

I can say this to you; whilst the same logic might be used when you withdraw each drawer, you must, you must look in that drawer for the evidence that relates to that count. Finish with it, shut it, open the next one, and then again go down the same path.
If you were to say ‘Well we will jumble this up. If we get a couple of those out of there and stick it in there and a couple of those there and see we have got both of these; both not guilty or both guilty,’ absolutely wrong. That is not to be done under any circumstance. Look in Drawer 1, deal with Count 1, look in Drawer 2, deal with Count 2, look in Drawer 3; Count 3. Having shut that top one, then to the second. Each must be dealt with absolutely separately. I cannot put it any more simply than that. If you are to mix them up and say ‘Oh well, we can get him off here or we can get him on this or by mixing it up a bit,’ if you do that you have completely crossed the boundary and not behaved in accordance with the direction I have just given to you. You examine the evidence that has been produced by the Crown, you take into account all of the evidence, the cross-examination, all of the material that has been produced by way of exhibits relating to Count 1, you finish that, shut it, pull out Count 2. With that I might stop and we will start in the morning.

67 On the following morning (1 October), the trial judge reminded the jury of the distinction between the civil standard of proof and the requirement in a criminal trial that they be satisfied beyond reasonable doubt. His Honour reminded the jury of his direction concerning inferences, and then drew attention to a qualification he wished to make to what he had said on the previous day.

68 At the conclusion of his Honour’s charge on 30 September, counsel for the Crown expressed a concern that his Honour had not addressed the cross-admissibility of evidence in relation to the arson counts. That concern, no doubt, followed upon the instruction that each charge was to be considered separately, augmented by the example of the chest of drawers.

69 Before making the qualification, his Honour emphasised, time and again, the burden imposed upon the Crown to prove the elements of each count beyond reasonable doubt. His Honour drew attention to the fact that the issue in relation to the arson counts was whether the applicant was responsible for the fires, not whether the fires occurred. He reminded the jury that the applicant denied having anything to do with the fires. He continued,

Now I will stop here because this is the tricky part and I am not here to be talking about myself, but I am going to. I bought a little business. Genuinely, I bought a little business and in the future when I retire because I am getting very close to that old age level where I live on borrowed time from there on. As my grandfather said, hit 70, living on borrowed time. And I have put in process to build an outlet to sell wine from a little vineyard I have got.
Now that is nothing to do with this trial and it is in a historical old gold town and on the weekend I became aware of the fact that a beautiful counter in an old haberdashery store, was 15 foot long, was for sale. Somebody beat me to it and they have chopped five feet off the end of it. Perhaps they could be charged with damaging property. But no, that is what has happened and a local shop where the people sell nice little takeaway light lunches have that installed in their shop because that is all they could accommodate, a five foot section of this counter. I am looking at buying the ten foot end.
It is a beautiful old piece of furniture with a great big long counter, it is even got a hole in the counter top where the string used to come through. Not hanging from the roof, it has come in through from the bottom. It has even got a hole where you put your scissors.
Now, why am I telling you all of this? How am I going to get this to fit in with the drawers? Well, exactly this. To my pleasant surprise, I opened all the drawers. Here we are. When I opened the drawer, the cash drawer is there and there is a beautifully carved out section of eight coin containers. See the plot thickening?
Now, in that one drawer there are eight separate containers and I try to work out, well, is there eight separate coins? Now this goes back to the 1850s so I suppose you start with a farthing, a halfpenny, a penny, a threepence, a sixpence, a shilling or a dina, and two-bob. Even a florin. Well, I managed to get eight, perhaps that is why they had eight separate beautiful wooden containers in that drawer, the cash drawer, no such things as cash registers. This was the cash drawer.
Well, the only way I am going to scramble out of what I said you yesterday about how everything has got to be in that one drawer. When you look at Count 1, you pull it out. You look at Count 2, you pull it out. You look at Count 3 and you do not mix them all in together.
Well, you are compelled to look at the arson counts together. You heard Mr Moore make a concession when he stood up yesterday when speaking of Duralite when addressing you. Duralite standing on their own, he suggested, I believe as I understood what he is said, the Crown would be in difficulty proving the arson count because of, I assume he is talking about, a lack of evidence. But when you look at the entire picture, the entire evidence where they are getting out of that drawer all of a sudden and look at all of the things that have been happening with Duralite, Growlite, Fastway, Secret Garden and whatever the other one is called, it has just escaped me, I knew it would – there it is, they have got to be dealt with separately, but you can only deal with these if you encompass the whole thing.
So, I am going to put, if you like, each of those arson counts in that one drawer but in a separate container and there is this cross-reference between each of them, because it is the only way it can be.
You must be very careful and I recall Mr Doyle saying to you and I believe Mr Moore did say to you, you do not leap to any conclusions at all. You must deal with count 1 and if you find that there is insufficient evidence that has not been proved beyond reasonable doubt, obviously you have got make a finding of not guilty.
But somehow or another, you have got to keep in mind you are dealing with this arson by looking at (all) of the circumstances before you finally make that determination and of course, as Mr Doyle impressed upon you and I am trying to my best to impress upon you, if you have any doubt then Mr Tognolini must get the benefit of it.
Very carefully and quietly, go over using what we call propensity evidence, but using evidence in this trial that demonstrates similar fact occurring and then you are going to have to use similar fact reasoning and take each one out of those separate cash containers that happen to be within the one drawer. It has never happened before and I hope I am doing it satisfactorily to your satisfaction so you can manage it.
Mr Foreman, ladies and gentlemen, you will recall that Mr Moore, the Crown Prosecutor, when first speaking to you some 15 or 16 days ago, he said that you can use the evidence against Mr Tognolini regarding each offence, I am speaking of the arson offence, as evidence against him in relation to the other offences.
The Crown case as you heard Mr Moore saying to yesterday was his witnesses, he implores you, are reliable and honest witnesses. I pause there for a moment. Mr Doyle went to lengths, very properly, to demonstrate they might be honest, but they were completely unreliable. He did not use those words but that was, as I understood, the direction of his address and he pointed to all sorts of discrepancies and I will come to that in a moment.
You will remember that I told you that in a criminal trial you may only rely on reasonable inferences. In this case, that means that you can only infer that on these facts and circumstances, that it was Mr Tognolini who in fact was the arsonist or that Mr Tognolini caused somebody else to light the fires at those addresses that I just read out to you and you must be careful when you are doing that. It must be a finding, an inference beyond reasonable doubt, so if you are drawing that inference, it cannot be telephone level, it has got to be the aeroplane level, if you follow my direction.
In cases where similar fact evidence such as this pleaded before you, you must find beyond reasonable doubt that the witnesses or the alleged victims accounts are so similar that they cannot be explained by coincidence. Then, in such a circumstance, you may infer that the only rational explanation for the similarity, is that each of the complainants or alleged victims are telling the truth, but again, it is not a guess. If it is a guess, it is out. If it is a probability, it is out. It must be beyond reasonable doubt.
Each of the complainants or alleged victims mentioned that they had received a threat and that threat related to, as I mentioned earlier, the stocking of Mr Tognolini's nutrient or product, tubs and so on. Each of those, generally speaking, had some mention in some way that a fire or premises would be burnt. In some instances, perhaps one only, I will not get into the fine detail of what constitutes an assault, but at least in one instance there was in fact, the physical violence.
In most cases, not all, the Hell's Angels was mentioned and it is the Crown case and Mr Moore very clearly said to you, you do not in any way, condemn or convict or make a positive finding against Mr Tognolini because he is a member of the Hell's Angels. That must be put to one side.
What Mr Moore was saying to you, as I understand his presentation, Mr Tognolini was using the Hell's Angels as a threat. He is not to be convicted because he was a Hell's Angel. That is completely wrong. Bias, prejudice, that must be out of your head altogether, but he, Tognolini, the Crown case is, was using his membership of the Hell's Angels in the sense of intimidating who these complainants or alleged victims were and also when Mr Tognolini attended – I think the exception is Secret Garden – on all other occasions he attended with another. I think the word used by Mr Moore was henchman. One of those henchman, at least on one occasion, was flying the flag as I said, of wearing Hell's Angels colours.
The Crown also says, and they do not rely heavily on this, it is an arson case after all, there was an accelerant used, certainly in some instances petrol was the opinion of, I think he is pronounced Xanidis, he, Duralite went to Fastway and gave evidence of petrol being an accelerant that was used and also, and perhaps this is a comment perhaps, after some sort of rebuff or rejection or refusal, whatever you like, all starting with R, of the product of Mr Tognolini, lo and behold, the premises got burnt down.
I return to Duralite. There was some sort of demand made, ‘You got to order better than this, because we can't come from one side of the city down there somewhere, Heatherton is down there near Dingley in the back of Dandenong – Phar Lap's stable is down there if you are interested in racing – all the way out to the other side to Epping and Thomastown.’ ‘Well’, Francis said, ‘Not on. I'm not going to making car deliveries to you, Mr Tognolini. You gotta buy more or I'm not interested’ and lo and behold, his premises goes up.
You go to what is said to be a rejection or a refusal of Mustica, ‘Do what you like, but I'm not interested in your stuff. You can put it on consignment, what do you reckon I've got an idiot written across my head’ and things of that nature. Lo and behold, so the Crown say, the factory at Austarc goes up and a little bit later, so too does the shop in Campbellfield.
The property at Secret Garden, apparently when property was returned if you accept the evidence of Tania, I'm going to cover this evidence instead of just giving a little nutshell thing like this. When the property was returned with a smiley face on it, that is, what had been placed on the shelves, uninvited, if you accept Tony Zubicic, sent back to nefarious, and shortly thereafter, the property went up.
I emphasise Holland Forge, no fire, so there is not a consistency, in the sense of Hell's Angels being everywhere, there is at least an exception that no fire at Holland Forge, but fires at the others.
I am also going to go back and go over each of the events for you, with blackmail, so keep in mind what I say in blackmail. I am not going to do it now, I am jumping about too much. You may infer, as I said and I remind you, you must infer on that high level beyond reasonable doubt, that the evidence concerning the fires is true. That there is such a similarity between that evidence and the evidence concerning the way in which the offences were committed, that it is improbable that the offences were committed by different people and that it was Mr Tognolini who committed the offences or somebody acting under his direction, making it more probable that it was Mr Tognolini who committed the charged offences.
Mr Tognolini, the accused gentleman, totally rejects this approach. He categorically denies threatening or menacing any of the alleged victims in this case, and of course, he categorically denies lighting the fires.
It is for you to determine whether or not the witnesses are or have been reliable and truthful and again, I remind you that you may only draw an inference from the facts that they all gave similar accounts. If you are satisfied beyond reasonable doubt that the accounts are not, in anyway, contaminated then it is for you to determine whether or not, on the evidence of Duralite, Harrington and Francis, Fastway, Ribeiro, that is Antonio and Maria and perhaps Neil Barnes and perhaps George Xides. Graham Plummer's evidence, no fires there of course. Stephen Mustica of Growlight, Mark Hughes, Tony Zubicic and Joseph Zubicic, they are the witnesses I believe who you have got to direct your minds to in drawing any inferences.
If you are satisfied on the balance of probabilities, that those people are telling the truth, you may only draw an inference from the fact that they all gave such similar accounts, if you are satisfied beyond reasonable doubt, that there accounts were not contaminated in any way. If you think there is a possibility that they have been contaminated, then you may not draw that inference.
Again, I remind you Mr Doyle, at length, addressed you on saying the evidence of the witnesses, the alleged victims in particular, is just so inconsistent and so unreliable, you cannot make a finding beyond reasonable doubt that satisfies you and therefore you could not draw any of these inferences.
The defence position is that the witnesses are all inconsistent in terms of the evidence that fell from them. The passage of time has contaminated the evidence. The inconsistencies are such that you cannot find, beyond reasonable doubt, that the evidence is acceptable and can be used in a criminal prosecution, as similar fact evidence.
The standard of proof does not change. It is important that you only use the evidence about threats towards the proprietors or the alleged victims to stock nefarious products and things of that nature, the menaces that accompany that presentation and also the presentation of the Hell's Angels being shown, in terms of tattoos being shown in terms of patches or colours, the accompanying by male persons in all but one of the events, together with, on one occasion at least, Hell's Angels' colours being shown.
Terry Tognolini on occasions did have colours himself. If I understand the evidence clearly, that was certainly the case when he first saw Mr Plummer at Collingwood, and perhaps in some way – furthermore, there was some sort of Hell's Angels product shown (indistinct).
Also it is said that he, when speaking with, that is Tognolini, when speaking with the individuals who are the alleged victims, fires or burn was used. In fact fire did occur after all these things occurred, save and except at Holland Forge, that usually occurred as a result of refusal, rejection or rebuffed a nefarious product. And again, accelerant was used and the Crown properly indicate to you that they do not rely on that heavily at any rate.
You must, as I say, be satisfied beyond reasonable doubt that each of those things that are alleged by the Crown are true and make it more probable that Mr Tognolini, or somebody acting on his behalf, in fact lit these fires. If you are not satisfied beyond reasonable doubt on the evidence given by these witnesses or if you are not satisfied that the similarities could be the product of coincidence or the witnesses were being contaminated in some way, as was suggested by Mr Doyle, then you must disregard this evidence.
Now as Mr Doyle said to you yesterday, and I said to you yesterday, when you are dealing with those counts on the presentment separately, you must not say because he is guilty of 1 he is guilty of 2 or if he not guilty of 1 he is not guilty of 2 and so on. The same thing applies here because this is what we in the law call propensity evidence. It is a terrible word but I do not suppose there is a better one to be used.
You must not use the evidence that you have heard in relation to these fires that I have been referring to for any other purpose. In particular, you must not use this evidence to describe that Terrence Tognolini is the kind of person who is likely to have committed the offences with which he is being charged, and to use this conclusion as evidence that he is guilty. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in the case, not on any assumption about the kinds of people who might commit these crimes.

70 A review of the video recording was illuminating, as might be supposed. All too often, the transcript alone is an inadequate reflection of that which was conveyed to the jury. It lacks expression and cadence of language.

71 Another consideration, having regard to the contention that the charge was so incomprehensible that no jury could have worked out what the trial judge was talking about, is to reflect for a moment upon the role of a trial judge in his or her task of communicating with a jury at the conclusion of the evidence and submissions in a criminal trial. Our system of justice accommodates the appointment of judges who will necessarily have a range of capabilities and personalities. Some judges will find it easier to organise and structure a charge than will others. Some will find it easier to engage the attention of the jury than will others. Some will be short, while others will take longer to explain matters to a jury. Judges will form impressions of the level of a jury’s understanding, having observed the jury during the course of the trial, and may consequently be more or less repetitive or emphatic in an attempt to ensure that what they must tell a jury is adequately explained. There is no single formula, but there are of course minimum standards to ensure that an accused person has a trial according to law.

72 A perfectly structured and measured direction on matters of law and on the facts, delivered in a robotic fashion may not be an effective communication notwithstanding that it is clinically accurate. On the other hand, a charge may be so idiosyncratic, unstructured and confusing – albeit entertaining and engaging – as to deny an accused the trial according to law. In my opinion the charge delivered by the trial judge in this case falls between those two extremes. It was repetitive and lacked some structure. The repetition, however, was to a large extent a repeated emphasis of the standard of proof applicable in criminal trials. This was important when considering what was an obvious slip by the judge when he made reference to the ‘balance of probabilities’ in giving a direction on the drawing of inferences.

73 Reading the charge as a whole, as the applicant correctly submitted should be done, left the jury in no doubt that the criminal standard of proof and only the criminal standard of proof was to be applied by them in their consideration of the evidence and in particular when drawing inferences.

74 The story told by the trial judge in the ‘tricky part’ of his charge was designed to explain the cross-admissibility of evidence in relation to the arson counts. I have no doubt that his Honour engaged the attention of the jury with this attempt to explain what to him was complex and difficult. The applicant submitted that if the direction is wrong on paper it is not improved by viewing. I disagree. The jury were listening to the judge, not reading a transcript. Repetition and a lack of structure were not as evident on the viewing the video recording as they appear on paper. It is not correct to contend, as did the applicant, that the direction was ‘really a collection of words without much meaning’.

75 The applicant drew particular attention to the words, ‘You are compelled to look at the arson counts together.’ This and the following paragraphs were the centrepiece of the applicant’s submission that the charge in relation to the cross-admissibility of evidence was confusing. While it does not enjoy perfect clarity, I have no doubt that, in context, this part of the charge conveyed to the jury that while they were permitted to look at the evidence in relation to all of the arson counts together. They were not compelled to accept the accounts given by the witnesses. The jury were told that they must first carefully consider the credibility of each account given by a witnesses to satisfy themselves beyond reasonable doubt that the various accounts could not be explained by coincidence and that each alleged victim was telling the truth. The jury was told that they must consider each count separately, and whether the evidence enabled them to infer, beyond reasonable doubt, that the applicant was responsible for the fires. In that context the trial judge used the words ‘inescapable inference’ and the phrase ‘inference beyond reasonable doubt’.

76 There are four principal difficulties with the applicant’s contentions in support of grounds (3) and (4), which lead to the conclusion that they must fail. First, the distinction at the heart of the applicant’s case, between evidence adduced in support of identity, and to prove the commission of an offence, is without substance. His contention misunderstood the way in which the Crown put its case, and the nature of the evidence upon which it relied to establish his responsibility for the fires. The Crown did not rely upon a striking similarity between the fires which could be characterised as a ‘signature’. Rather, the Crown relied upon the course of conduct, involving the threats of fire to establish a pattern of behaviour.

77 Second, with one exception I will come to in a moment, a review of the relevant parts of the charge to which reference has been made, reveals a charge that, while repetitive and sometimes lacking in structure, was astute to ensure that the jury gave the applicant the benefit of any doubt.

78 Third, the fact that the jury acquitted the applicant on counts 2 and 12 does not assist the applicant’s argument. On the contrary, it is consistent with a jury acting responsively to the direction of the trial judge to assess the credibility of each alleged victim carefully in relation to each arson count. The applicant had argued that the acquittals on two arson counts – counts 2 and 12 – supported the proposition that the misdirection on similar fact evidence was a material error. That submission is not persuasive. In his evidence in chief, Mr Francis had told of a conversation with the applicant and his brother after the applicant had demanded a nutrient formula from an employee. He said in his evidence in chief that when not fully compliant with the applicant’s request, the applicant had said ‘that a fire could be possible’. Mr Francis said that the applicant’s comments ‘were strong and forceful’. Mr Francis offered the applicant an alternative formula which he hoped would ‘reduce any concerns’. It was a nutrient recipe. There were later discussions concerning the delivery of raw materials to the applicant’s business at Thomastown, during which Mr Francis said that the quantity of material ordered by the applicant should be larger so that it was more economical to deliver by truck. He said that the applicant was unhappy with the proposal and the fire occurred about a month later.

79 Under cross-examination, Mr Francis conceded that he had made no mention in a statement made to police shortly after the fire that the applicant had used words to the effect that a fire could be possible. He said in cross-examination, ‘I can’t recall that they (the words) were actually said’.

80 In my opinion the most plausible explanation for the acquittal, if one is necessary, is the evident basis upon which the jury could reasonably conclude that the account given by Mr Francis of the threat was unreliable, and that no relevant inference could properly be drawn to the effect that the applicant was responsible for the fire. The acquittal on count 2 was testimony to a discriminating jury considering the evidence in conformity with the direction of the trial judge.

81 The evidence in relation to the arson count 12 was in a different category to that in relation to count 2. Mr Ribeiro gave evidence that when he refused to stop selling tubs and competing with the applicants business, the applicant threatened to ‘kill you or burn you’. That was seven or eight months before the fire. After the fire, Mr Ribeiro said that the applicant visited his new premises in Geelong Road and demanded money. Mr Ribeiro challenged him, ‘you burn my business, how come I have to pay you?’ Thereafter, money was paid by Mr Ribeiro.

82 Evidence was given of a number of visits by the applicant to the new business in Geelong Road. On one occasion Mr Ribeiro was assaulted by the applicant. The incident was captured on a security camera recording. The assault was the subject of count 14, to which the applicant had pleaded guilty. It was on that occasion, Mr Ribeiro said, that the applicant told him that, ‘this time its going to be you, going to burn you, not the business’. The applicant had said, according to Mr Ribeiro, that the business would ‘be hard to burn because I got so much water’, referring to fish tanks.

83 Before the fire at the Footscray premises in July 2002, the Ribeiro’s business had suffered a number of burglaries. There had been a fire in a business nearby. Furthermore, Mr Ribeiro had made four statements prior to giving his evidence. He conceded that no mention was made in any of the statements of the threat by the applicant to ‘kill you or burn you’. Nor did he mention in any of his statements the assertion made when giving evidence, that when the applicant visited his new premises and demanded money, Mr Ribeiro had said to the applicant that ‘you burn my business’. There was a serious challenge made to the accuracy of Mr Ribeiro’s recollections and to his credit.

84 Thus, as with count 2, the acquittal on count 12 is explicable without lending any support to the applicant’s contention of error based on a failure by the trial judge to properly direct the jury in relation to the need for evidence of ‘striking similarity’.

85 Fourth, while the trial judge did use the phrase ‘balance of probabilities’ it was an apparent slip. The jury could not have been under any misapprehension as to the standard of proof required if they were to convict. In context, the use of the phrase, ‘on the balance of probabilities’, could in no way have detracted from the jury’s understanding of what was necessary for them to be satisfied beyond reasonable doubt of the truth of the complainant’s testimony.

86 It is in this context that the failure of defence counsel to bring this and the other inadequacies in the charge, advanced on this application, to the attention of the trial judge assumes real significance. The applicant was represented by two competent and experienced defence counsel who were demonstrably astute to protecting their clients interests. Having made an application for severance they cannot be said to have been oblivious to the potential prejudice to their client of cross admissibility of the evidence. Exceptions were taken by them to some of what was said by the trial judge during the charge, but none of the complaints raised on this application were mentioned. I do not accept that any part of the charge that counsel for the applicant submitted was incomprehensible could not have been cleared up by the trial judge, if clarity was indeed required. I infer that there was no challenge because, on a fair assessment of the charge as presented by the trial judge to the jury, it was fair. To the extent there was repetition, it favoured the accused.

87 The applicant has not established that there was a substantial miscarriage of justice on any of the grounds advanced. I would refuse the application.

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^[1] [1991] 2 AC 447, 462

^[2] R v Ruiz [1995] Crim LR 151; Heydon, Cross on Evidence, Australian Edition, [21175].

^[3] [1995] HCA 7; (1995) 182 CLR 461.

^[4] Hoch v R [1988] HCA 50; (1988) 165 CLR 292, 294 (which tracks Lord Mackay’s observation).

^[5] Ibid 482.

^[6] Ibid 484.

^[7] R v Delgado-Guerra [2001] QCA 266; [2002] 2 Qd R 384, 388 [19] (McMurdo )).

^[8] Reg v Mansfield [1977] 1 WLR 1102, 1105; Cross, [21175]

^[9] R v Best [1998] 4 VR 603, 612 (Callaway JA); R v Dupas (No 2) [2005] VSCA 212; [2005] 12 VR 601, 611 [26]–[29] (Warren CJ).

^[10] Cross, [21180].

^[11] Cross on Evidence, Australian Edition, [21180].

^[12] Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108, 117.

^[13] [2004] VSCA 12; [2004] 7 VR 375.

^[14] [1976] VicRp 19; [1976] VR 244.

^[15] Ibid 251.

^[16] See generally Baini v R [2011] VSCA 298, [52]–[69].

^[17] [1999] 2 VR 412; [1999] VSCA 93.

^[18] [2004] VSCA 12; (2004) 7 VR 375.

^[19] Ibid [29].

^[20] [2010] VSCA 288.

^[21] Maxwell P, Buchanan and Neave JJA.

^[22] [1982] HCA 75; (1982) 150 CLR 580, 587 (emphasis added).

^[23] [1982] HCA 75; (1982) 150 CLR 580.

^[24] [1936] HCA 23; (1936) 55 CLR 367, 376 and 384–5.

^[25] Perry [1982] HCA 75; (1982) 150 CLR 580, 588.

^[26] [1982] HCA 75; (1982) 150 CLR 580 (‘Papamitrou’).

^[27] [2004] VSCA 12; (2004) 7 VR 375.

^[28] R v [CW] (Unreported, County Court of Victoria, Judge Thornton, 1 September 2010), 112.

^[29] [2004] VSCA 12; (2004) 7 VR 375.

^[30] See GBF v The Queen [2010] VSCA 135, [23]; NAM v The Queen [2010] VSCA 95, [15], [19]; PNJ v Director of Public Prosecutions [2010] VSCA 88, [12]; CGL v Director of Public Prosecutions [2010] VSCA 26, [28]–[29].

^[31] [1982] HCA 75; (1982) 150 CLR 580, 590.

^[32] Counsel cited R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412, 418 and R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375, 390. In each case, Winneke P cited what was said by the House of Lords in DPP v P [1991] 2 AC 447, 462 D-G.

Authorities Cited21

Referred to (21)