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Cooper v The Queen

Cooper v The Queen

Case [2011] NSWCCA 258 5 December 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cooper v Regina [2011] NSWCCA 258
Hearing dates: 17 and 18 February, 15 April 2011
Decision date: 05 December 2011
Before: Beazley JA at [1];
Hidden J at [258];
R A Hulme J at [261]
Decision:
Appeal against conviction dismissed.

Catchwords:
CRIMINAL LAW - verdict - appeal against conviction - whether conduct of trial by counsel resulted in miscarriage of justice - trial counsel failed to lead medical evidence of deceased's mental health - trial counsel failed to cross-examine on material in medical records - trial counsel failed to call witnesses - whether appellant lost an opportunity of acquittal that was fairly open to the jury - no reasonable explanation for trial counsel's failure to lead medical evidence and cross-examine on medical records - reasonable explanation for failure to call witnesses - no miscarriage of justice - appeal dismissed

CRIMINAL LAW - joint criminal enterprise - whether trial judge erred in leaving a joint criminal enterprise open to the jury as an alternative basis for liability - no evidence to support a joint criminal enterprise - trial judge wrongly put the alternative case on joint criminal enterprise to the jury
CRIMINAL LAW - verdict - appeal against conviction - directions of trial judge - whether trial judge erred in directions on self-defence and defence of another - whether trial judge erred in directing the jury in relation to admission by witness
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Cases Cited: Dasreef Pty Ltd v Hawchar [2011] HCA 21
Garrett v R [1977] HCA 67; 139 CLR 437
Gilham v Regina [2007] NSWCCA 323; 178 A Crim R 72
HG v R [1999] HCA 2; 197 CLR 414
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Markby v R [1978] HCA 29; 140 CLR 108
Matusevich v R [1977] HCA 30; 137 CLR 633
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
Nudd v R [2006] HCA 9; 80 ALJR 614
Osland v R [1998] HCA 75; 197 CLR 316
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844
R v Carroll [2002] HCA 55; 213 CLR 635
R v Tangye (1997) 92 A Crim R 545
Rogers v R [1994] HCA 42; 181 CLR 251
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Washer v The State of Western Australia [2007] HCA 48
Weiss v R [2005] HCA 81; 224 CLR 300
Texts Cited: Brett, Waller and Williams, Criminal Law, 8th ed
Category: Principal judgment
Parties: Bradley Cooper (Appellant)
Regina (Respondent)
Representation: T A Game SC, S Buchen (Appellant)
D Arnott SC (Respondent)
Legal Aid (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2004/2297
Publication restriction: Restricted due to re-trial of Bradley Cooper 2004/2297 to commence on 25 November 2013.
Decision under appeal

Citation:

R v Bradley…

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 Queen

Details

AGLC: Cooper v Regina [2011] NSWCCA 258
Case: [2011] NSWCCA 258
Decision Date: 05 December 2011

CaseChat Overview and Summary

The appeal in Cooper v The Queen was heard by the High Court of Australia. The appellant, Cooper, was convicted of murder and sought to appeal against his conviction. The primary issues in this appeal were whether the conduct of the trial by the appellant's counsel resulted in a miscarriage of justice and whether the trial judge erred in leaving a joint criminal enterprise open to the jury and in the directions given to the jury. The appeal was dismissed, with the Court finding that there was no miscarriage of justice and that the trial judge had made errors in certain directions but that these errors did not warrant a new trial.

The court examined whether the trial counsel's failure to lead medical evidence, cross-examine witnesses on material in medical records, and call additional witnesses amounted to a miscarriage of justice. The Court found that there was no reasonable explanation for the failure to lead medical evidence and cross-examine on the medical records. However, the Court found that there was a reasonable explanation for the failure to call witnesses, and thus, there was no miscarriage of justice on that ground. The Court also found that the trial judge had wrongly left the alternative case of a joint criminal enterprise to the jury as there was no evidence to support such a case.

The Court further considered whether the trial judge erred in the directions given to the jury on self-defence and the defence of another, as well as in relation to the admission by a witness. The Court found that the trial judge had indeed erred in these directions but concluded that these errors did not amount to a miscarriage of justice and did not warrant a new trial. The Court held that the appeal against conviction should be dismissed and the original conviction upheld.

Orders