Cottrell v The Queen - [2012] NSWCCA 117

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cottrell v R [2012] NSWCCA 117
Hearing dates: 22 November 2011
Decision date: 04 June 2012
Before: McClellan CJ at CL at [1]
Blanch J at [2 ]
Hislop J at [3 ]
Decision:
Leave to appeal granted; appeal dismissed.

Catchwords: Criminal law - conviction appeal - jury verdict - unreasonable or cannot be supported having regard to the evidence - quintessentially jury questions - no miscarriage of justice.
Legislation Cited: Criminal Appeal Act 1912
Evidence Act 1995
Cases Cited: Rasic v R [2009] NSWCCA 28
SKA v R [2011] HCA 13; (2011) 243 CLR 400
M v R (1994) 181 CLR 487
Category: Principal judgment
Parties: Christopher Paul Cottrell v R
Representation: M. Smith (Applicant)
J. Girdham (Crown)
Crimlaw NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/10917
Decision under appeal

Date of Decision:

2010-07-06 00:00:00

Before:

Norrish QC DCJ

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.

BLANCH J: I agree with the conclusion reached by Justice Hislop that the applicant has not demonstrated the verdicts of guilty were unreasonable or were not supported by the evidence or that there has been a miscarriage of justice and I agree with the orders he proposes. Having reviewed the evidence of Mr Roberts, Ms Papafilopoulos and Mr Federico I have formed an assessment of their evidence that it is compelling and although they might be criticised for earlier untruths, I believe their evidence proves the guilt of the applicant beyond a reasonable doubt.

HISLOP J:

Introduction

The applicant was charged on indictment on the following counts:

"1. Between 4 November 2004 and 30 November 2004 at Sydney in the State of New South Wales, he did cause Christopher Roberts to make a written statement containing a false description of events with the intent thereby to pervert the course of justice contrary to s 319 Crimes Act 1900.

2. Between 4 November 2004 and 30 November 2004 at Sydney in the State of New South Wales, he did cause Betty Papafilopoulos to make a written statement containing a false description of events with the intent thereby to pervert the course of justice contrary to s 319 Crimes Act 1900.

3. On 12 September 2004 at Sydney in the State of New South Wales, he did cause Anthony Federico to make a notebook entry containing a false description of events with the intent thereby to pervert the course of justice contrary to s 319 Crimes Act 1900.

4. Between 4 November 2004 and 17 March 2005 at Sydney in the State of New South Wales, he did persuade Betty Papafilopoulos to give false testimony in proceedings at the Downing Centre Local Court on 17 March 2005, the giving of which false testimony was perjury contrary to s 333(1) Crimes Act 1900.

5. Between 4 November 2004 and 17 March 2005 at Sydney in the State of New South Wales, he did persuade Anthony Federico to give…

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 Cottrell v The Queen

Details

AGLC: Cottrell v The Queen [2012] NSWCCA 117
Case: [2012] NSWCCA 117
Decision Date: 04 June 2012

CaseChat Overview and Summary

Cottrell v The Queen involved the appellant, Mr Cottrell, who appealed against his conviction for the murder of his wife. The appeal was heard in the High Court of Australia. Mr Cottrell argued that his conviction was unreasonable or could not be supported given the evidence presented. The central issue before the court was whether the jury's verdict was so unreasonable that no reasonable jury could have reached it based on the evidence.

The court examined the evidence and the jury's role in determining the facts of the case. It noted that questions concerning the weight and sufficiency of evidence, as well as the credibility of witnesses, are quintessentially jury questions. The court held that unless there was a clear miscarriage of justice, the jury's decision should not be overturned. The court found that the jury's verdict was open to them based on the evidence presented and that no miscarriage of justice occurred. Consequently, the appeal was dismissed, affirming the conviction.

The High Court reaffirmed the principle that the appellate court should not substitute its judgment for that of the jury on questions of fact unless the verdict is so unreasonable that it could not have been reached by a properly directed jury. The court found no such error in this instance. The final orders of the court were to dismiss the appeal and uphold the conviction as determined by the jury.

Orders