Cooper v The Queen

Case [2012] HCA 50

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

BRADLEY DOUGLAS COOPER  APPELLANT

AND

THE QUEEN  RESPONDENT

Cooper v The Queen

[2012] HCA 50

14 November 2012

S135/2012

ORDER

1.Appeal allowed.

2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 December 2011 and, in its place, order that:

(a) the appeal to that Court be allowed;

(b)the appellant's conviction be quashed; and

(c)a new trial be had.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with S J Buchen for the appellant (instructed by Legal Aid (NSW))

L A Babb SC with J H Pickering for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Cooper v The Queen

Criminal law – Appeal – Misdirection – Application of "proviso" – Appellant convicted of murder – Prosecution alleged at trial that either appellant hit and killed deceased or alternatively another person hit and killed deceased pursuant to joint criminal enterprise with appellant – Jury instructed to consider case of joint criminal enterprise as alternative to primary case that appellant hit and killed deceased – Court of Criminal Appeal held no evidence of joint criminal enterprise – Whether "no substantial miscarriage of justice" occurred.

Words and phrases – "proviso", "substantial miscarriage of justice".

Criminal Appeal Act 1912 (NSW), s 6(1).

  1. FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ.   At the appellant's trial in the Supreme Court of New South Wales for the murder of Dale Kevin Muldoon, Julie Anne Quinn gave evidence that she saw the appellant beat the deceased to death by hitting him with his fists, a child's baseball bat and a small axe.  The appellant's niece, known in the trial as "C", gave evidence that Ms Quinn had told her that it was she (Ms Quinn) who had struck the deceased with an axe and that she had done so because the deceased was hitting the appellant.

  2. At the appellant's trial, the prosecution's primary case was that the appellant alone had hit and killed the deceased.  But, as an alternative case, the prosecution submitted that even if Ms Quinn had struck the fatal blow or blows, the appellant was guilty of murder because Ms Quinn had been part of a joint criminal enterprise with the appellant.  The trial judge instructed the jury that, if they considered that the prosecution did not establish that the appellant was solely responsible for the fatal injuries inflicted on the deceased, they should then consider whether the appellant had used the baseball bat, and Ms Quinn the axe, "pursuant to an agreement to cause the death of the deceased with the intention of killing him or inflicting grievous bodily harm upon him".

  3. The appellant was convicted.  His appeal against conviction was dismissed[1] by the Court of…

Continue reading Cooper v The Queen

Sign in free to access the full text

Details
AGLC
Cooper v The Queen [2012] HCA 50
Case
[2012] HCA 50
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Court of Criminal Appeal of New South Wales concerning a conviction for murder. The appellant, having been convicted of murder at trial, appealed to the Court of Criminal Appeal, which dismissed his appeal. The central dispute revolved around whether a miscarriage of justice had occurred due to alleged deficiencies in the defence case at trial, specifically the failure to adduce evidence regarding the deceased's mental condition and related failures in cross-examination.

The legal issues before the High Court included whether the Court of Criminal Appeal erred in holding that the defence counsel's failure to adduce evidence concerning the deceased's mental state and the related failure to cross-examine the deceased's grandmother did not occasion a miscarriage of justice. The Court was required to consider the application of the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW), which allows an appeal to be dismissed if no substantial miscarriage of justice has occurred, even if a point of law might be decided in favour of the appellant.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial. The Court found that the Court of Criminal Appeal had erred in its assessment of whether a miscarriage of justice had occurred. The Court determined that the uncalled evidence regarding the deceased's mental health, potentially exacerbated by drug and alcohol use, could have provided a compelling basis for a reasonable doubt about the appellant's guilt. Consequently, the Court concluded that a substantial miscarriage of justice had occurred, necessitating the quashing of the conviction and the ordering of a new trial.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 December 2011 and, in its place, order that:

(a) the appeal to that Court be allowed;

(b) the appellant's conviction be quashed; and

(c) a new trial be had.

Background

Background to the litigation

It is necessary to say something further about the facts of the matter and the course of proceedings against the appellant.The facts and proceedings below On 5 May 2003, the mother of the deceased told police that her son was missing. She said that she had not seen or heard from him since 22 March 2003. A New South Wales State election was held on that day and the deceased's mother told police that the deceased had gone to vote but had not returned. On 18 June 2003, police arrested the appellant, Ms Quinn and Mr Kevin Denne. Mr Denne told police that he had been present when the appellant took the body of the deceased to the Ben Bullen State Forest and buried it. Mr Denne took police to the State Forest and pointed out where the deceased's body had been buried. In September 2004, the appellant and Ms Quinn were jointly indicted on one count of murder and one count of disposing of the deceased's body with intent to pervert the course of justice. The appellant pleaded not guilty to murder but guilty to the count about disposing of the body; Ms Quinn pleaded not guilty to both counts. An order was made that the two accused be tried separately. Ms Quinn's trial proceeded first. She was acquitted of murder but the jury could not agree with respect to the second count. A "no bill" was subsequently entered in respect of the second count. In May and June 2005 the appellant was tried on the charge of murder. At his trial, expert evidence was led that post mortem examination of the deceased showed that he had four wounds to the head. At least two of those wounds were associated with skull fractures that the forensic pathologist described as requiring "a lot of force" to inflict. Some but not all of the wounds could have been caused by a blunt object like a baseball bat or the flat side of an axe; one of the wounds could have been caused by the back of an axe. In this Court, both the appellant and the respondent accepted that the evidence did not permit the jury to conclude beyond reasonable doubt that only one weapon was used. The respondent submitted that the evidence showed that two weapons were used. The prosecution alleged that these wounds were inflicted on the deceased on 22 March 2003 at the house in Lithgow occupied by the appellant and one of his children with Ms Quinn and one of her children. The appellant did not dispute these matters at trial. He denied that he had inflicted the wounds. As has already been noted, Ms Quinn gave evidence at the trial. She said that the appellant had struck the deceased several times first with his fists, then with a child's baseball bat and finally with a small axe. Unsworn evidence was also adduced from Ms Quinn's then eleven year old son who described the appellant punching the deceased. Ms Quinn said that she took her son into a bedroom after the appellant punched the deceased. Mr Denne and C each gave evidence describing his or her part in the appellant's burying the body in the State Forest on the day after the deceased was killed. Mr Denne also gave evidence that after the body had been buried the appellant had dropped a hessian bag into a fire at a rubbish tip. (This bag was said to have contained the murder weapons.)

Evidence

Evidence Before The Court

After a trial by jury, the appellant was convicted of murder in the Supreme Court of New South Wales. The Court of Criminal Appeal dismissed his appeal. The appellant raises two points in this Court.Counsel's failure to introduce evidence Ground 2.3 of the Notice of Appeal in this Court was: "The Court of Criminal Appeal erred in holding that defence counsel's failure to adduce relevant evidence in relation to the deceased's mental condition and the related failure to cross-examine the deceased's grandmother did not occasion a miscarriage of justice." In the Court of Criminal Appeal the appellant contended that there were various deficiencies in how defence counsel presented his case at trial. The Court of Criminal Appeal rejected some of these contentions, but accepted two. The first was that counsel had omitted to adduce certain evidence about Mr Muldoon's mental state in her cross-examination of Mr Muldoon's grandmother, Mrs Muldoon. The second was that counsel had omitted to tender some documents held by the Mid Western Area Health Service. Those documents related to visits by Mr Muldoon to Lithgow District Hospital. They supposedly recorded that Mr Muldoon appeared to be affected by drug induced psychosis, and he claimed to suffer from mental health problems, including possibly mild schizophrenia. Finally, the documents also revealed contacts between Mrs Muldoon and Lithgow District Hospital in which Mrs Muldoon stated that she had at times felt a little afraid of Mr Muldoon because of his violent and erratic behaviour. In this Court the appellant submitted that the uncalled evidence would have provided "a compelling basis for an inference that the deceased suffered from a psychotic illness substantially aggravated by the consumption of alcohol and drugs, making him prone to paranoid, erratic and dangerous behaviour." Both in this Court and in the Court of Criminal Appeal, the appellant submitted that there had been "a miscarriage of justice" within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act"). In considering that submission the Court of Criminal Appeal posed the question: "would a jury have been likely to entertain a reasonable doubt about guilt if all the evidence had been before it?" It answered that question in the negative. Thus in its view the ground of appeal before it was not made out. That made it unnecessary to consider whether the proviso to s 6(1) of the Criminal Appeal Act applied in relation to this ground. The proviso is to the effect that notwithstanding the fact that the Court of Criminal Appeal is of opinion that the point raised by the appeal might be decided in favour of the appellant, it may dismiss the appeal "if it considers that no substantial miscarriage of justice has actually occurred." It was not necessary to consider the application of the proviso because the particular point raised by the appeal was not decided in favour of the appellant. However, the Court of Criminal Appeal later applied the proviso to this ground of appeal as well as to a joint criminal enterprise ground of appeal which is discussed below[23]. [23]See below at [47]-[101].

Decision

Reasons for decision

FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ HEYDON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ, HEYDON J

Full text does not contain this section.