Cooper v The King - [2023] HCATrans 47

[2023] HCATrans 47

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D8 of 2022

B e t w e e n -
BENJAMIN COOPER
Applicant

and
THE KING
Respondent
Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 21 APRIL 2023, AT 9.30 AM

MR S.A. McDONALD, SC: May it please the Court, I appear with MS H.L. CANHAM for the applicant. (instructed by North Australian Aboriginal Justice Agency)

MR L.A. BABB, SC: May it please the Court, I appear with MS T.L. GREALY for the respondent. (instructed by Director of Public Prosecutions (NT))

GAGELER J: Thank you, Mr Babb. Mr McDonald.

MR McDONALD: Thank you, your Honours. The first matter I need to raise is that we require an extension of time of only two days. An attempt was made to file within time, but ‑ ‑ ‑

GAGELER J: You present your argument, and we will deal with the extension of time as part of the application.

MR McDONALD: Thank you, your Honour.

GAGELER J: Mr McDonald, can I just ask, has your client’s term of imprisonment now been fully served?

MR McDONALD: Yes, it has.

GAGELER J: And do you put the case as one of principle, or is it some kind of interests of justice in the individual case?

MR McDONALD: It is put as both. In essence, the central complaint is the application and determination of the question relating to section 137 of the Uniform Evidence Act.

GAGELER J: Well, application and determination does not sound like a question of principle, when you put it that way.

MR McDONALD: No, your Honour, I accept that, but there are two errors that are introduced at the Court of Appeal level. The first is essentially one that goes to the justice of the case, which is the factual error that a tendency warning was given when in fact none was – and the balancing has been done on that basis – fundamentally wrong. That is obviously not a question of general importance but a question specific to this case.

The question of general importance concerns the use of evidence said to be evidence of sexual attraction, or labelled motive, and whether or not that is distinct from a tendency use. That is the question that we say is a question of general importance.

The approach of the Northern Territory Court of Criminal Appeal in this case is contrary to statements in a number of cases in Victoria and New South Wales, commencing with Justice Hodgson’s judgment in Leonard, and that has been picked up in a line of authority in both those other jurisdictions.

So, the court explicitly reasoned in this case – paragraphs [10] and [11] – that the evidence was admissible, that is, the evidence of the shower incident was admissible to show a motive, in the sense…

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 v The King

Details

AGLC: Cooper v The King [2023] HCATrans 47
Case: [2023] HCATrans 47
Decision Date

CaseChat Overview and Summary

Cooper (the applicant) appealed to the High Court of Australia against his conviction for murder. The applicant had been convicted in the Supreme Court of Queensland following a trial by jury. The central issue on appeal concerned the admissibility of certain evidence obtained by police during an investigation.

The High Court was required to determine whether the evidence, which included statements made by the applicant to police and items seized from his home, had been obtained in contravention of the applicant's rights under the *Criminal Code* (Qld) and, if so, whether that evidence should have been excluded from the trial. Specifically, the court considered the application of s 590A of the *Criminal Code* and the common law exclusionary rule concerning improperly or illegally obtained evidence.

The Court held that the evidence was obtained in contravention of the applicant's rights. However, applying the principles established in *Bunning v Cross* and *Ridgeway v The Queen*, the Court found that the evidence was admissible. The reasoning focused on the balance between the public interest in the conviction of those guilty of serious crimes and the public interest in the due administration of justice, including the protection of individual rights. The Court concluded that the probative value of the evidence was not outweighed by the impropriety of its acquisition, and therefore, the evidence was rightly admitted at trial.

The appeal was dismissed.

Orders