Cooper (a pseudonym) v The King - [2023] VSCA 67

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0046

ANDREW COOPER (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of certain names.

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JUDGES:	PRIEST, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2023
DATE OF JUDGMENT:	3 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 67
JUDGMENT APPEALED FROM:	DPP v [Cooper] (Unreported, County Court of Victoria, Judge Meredith, 13 December 2021)

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CRIMINAL LAW – Conviction – Appeal – Four charges of sexual offending relating to three incidents against step-daughter – Jury convicted applicant on four charges – Whether trial judge wrongly rejected application to cross-examine complainant as to prior complaints about unwanted kissing – Whether trial judge wrongly admitted evidence of applicant’s ‘bad character’ – Whether verdicts unsafe and unsatisfactory – Leave to appeal refused.

Criminal Procedure Act 2009, ss 276 (1), 349; Jury Directions Act 2015, ss 52, 54D.

Perry v The Queen (1982) 150 CLR 580; M v The Queen (1994) 181 CLR 487; Melbourne v The Queen (1999) 198 CLR 1; R v Thomas [2006] VSCA 167; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 403 ALR 221; Price (a pseudonym) v The Queen [2022] VSCA 169; Blake (a pseudonym) v The King [2023] VSCA 52 considered.

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Counsel
Applicant:		Mr PJ Smallwood
Respondent:		Ms EH Ruddle KC
Solicitors
Applicant:	Mapleston Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MCLEISH JA
KENNEDY JA:

On 13 December 2021, the applicant was found guilty of two charges of indecent assault,[2] one charge of incest,[3] and one charge of sexual assault[4] following a 10 day trial by jury in the County Court.
[2]Contrary to s 39 of the Crimes Act 1958, as amended by the Crimes Amendment (Rape) Act 2007.
[3]Contrary to s 44(2) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
[4]Contrary to s 40(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
The complainant (‘TJ’) was the step-daughter of the applicant and was between the ages of approximately 13 and 19 when the offending was alleged to have occurred. The applicant was between the ages of 57 and 63.
The four charges were related to three discrete incidents. TJ gave evidence about each of these incidents, as well as evidence of a broader context of other (uncharged) prolonged sexual offending. The applicant did not give evidence, but generally denied that the incidents occurred. He accepted that he engaged in physical play-fighting with TJ, but denied that this involved sexual acts. His counsel also emphasised that there was delay in complaint being made.
The applicant now effectively advances three proposed grounds of appeal: that the trial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooper (a pseudonym) v The King

Details

AGLC: Cooper (a pseudonym) v The King [2023] VSCA 67
Case: [2023] VSCA 67
Decision Date: 3 April 2023

CaseChat Overview and Summary

The applicant, Cooper, appealed against his conviction on four charges of sexual offending against his step-daughter, arguing that the trial judge erred in several respects. The case was heard and determined in the Supreme Court of Victoria. Cooper's appeal centred on the trial judge's refusal to allow him to cross-examine the complainant about prior complaints of unwanted kissing, and the admission of evidence about his bad character. He contended that these errors rendered the verdicts unsafe and unsatisfactory.

The central issues before the court were whether the trial judge wrongly rejected Cooper's application to cross-examine the complainant about prior complaints of unwanted kissing, whether the trial judge wrongly admitted evidence of Cooper’s bad character, and whether these errors made the verdicts unsafe and unsatisfactory. The court examined whether these alleged errors breached Cooper's right to a fair trial under the Australian Constitution, and whether they affected the safety of the verdicts.

The court found that the trial judge did not err in rejecting the application to cross-examine the complainant about prior complaints, as the evidence did not meet the criteria for relevance and probative value under the Evidence Act. The court also held that the admission of evidence of Cooper's bad character was not an error, as it was relevant to the character evidence allowed under the Act. The court concluded that the verdicts were safe and satisfactory, as the evidence against Cooper was overwhelming and the jury's verdict was well-supported by the evidence. Consequently, the court dismissed the appeal and refused leave to appeal.

The court did not make any orders as the appeal was dismissed, and leave to appeal was refused.

Orders