R v Bradley Grant Cooper - [2007] ACTSC 74

R v BRADLEY GRANT COOPER
[2007] ACTSC 74 (10 September 2007)

CRIMINAL LAW – assault – circumstantial case
EVIDENCE – when appropriate to allow child to give sworn or affirmed evidence – transcript of child’s emergency 000 call admissible as part of res gestae
EVIDENCE – discretion to allow prosecution to cross-examine unfavourable witness

Supreme Court Act 1933 (ACT), s 68C
Evidence Act 1995 (Cth), ss 12, 13, 38, 60, 66, 102, 132, 135, 144
Crimes Act 1900 (ACT), s 26
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 8, 11
Criminal Code 2002 (ACT), s 25
Oaths Act Amendment Act 1884 (Qld), s 2
Oaths and Affirmations Act 1984 (ACT), ss 14, 15

Adam v The Queen (2001) 207 CLR 96
R v Brasier (1779) 1 Leach 199
R v Hayes [1977] 2 A11 ER 288, 291
R v Brown [1977] Qd R 220
Cheers v Porter (1931) 46 CLR 521
R v Brooks (1998) 44 NSWLR 121
R v JTB [2003] NSWCCA 295 (3 October 2003).
R v Climas (1999) 74 SASR 411
R v Hissey (1973) 6 SASR 280
Ratten v R [1972] AC 378
Weissensteiner v The Queen (1993) 178 CLR 217
Azzopardi v The Queen (2001) 205 CLR 50

No. SCC 228A of 2006

Judge: Higgins CJ
Supreme Court of the ACT

Date: 10 September 2007

IN THE SUPREME COURT OF THE )
) No. SCC 228A of 2006
AUSTRALIAN CAPITAL TERRITORY )

R

v

BRADLEY GRANT COOPER

ORDER

Judge:  Higgins CJ
Date:  10 September 2007
Place:  Canberra

THE COURT ORDERS THAT:

There be recorded a verdict of ‘guilty’ to the count charged in the indictment.

On 25 June 2007 the accused, Bradley Grant Cooper, pleaded guilty to two counts of resisting two police officers. There was also presented a separate indictment charging that the accused:

… on the 13^th of March 2006 at Canberra … assaulted Teresa Glennie.

To that count the accused pleaded ‘not guilty’. That being a fresh indictment he also elected to be tried by judge alone.

Thus, the provisions of s 68C of the Supreme Court Act 1933 (ACT) apply. That is:

Verdict of judge in criminal proceedings
(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

Accordingly, the accused is entitled to the presumption of innocence and the Crown bears the onus of proof of each element of the…

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 R v Bradley Grant Cooper

Details

AGLC: R v Bradley Grant Cooper [2007] ACTSC 74
Case: [2007] ACTSC 74
Decision Date: 10 September 2007

CaseChat Overview and Summary

In the matter of R v Bradley Grant Cooper, the respondent was charged with assaulting Teresa Glennie on 13 March 2006 at Canberra. Cooper pleaded not guilty and elected to be tried by a judge alone. The Crown bore the onus of proving each element of the charge beyond reasonable doubt. The court considered evidence, including a transcript of a child's emergency 000 call as part of res gestae, and exercised its discretion to allow the prosecution to cross-examine an unfavourable witness. The court was required to decide whether the Crown had discharged its onus of proof.

The court considered the nature of a circumstantial case and the need to exclude any reasonable hypothesis consistent with the accused's innocence. It also addressed the admissibility of the transcript of the child's emergency 000 call and the appropriateness of allowing a child to give sworn or affirmed evidence. The court concluded that the Crown had discharged its onus of proof and found Cooper guilty of the assault charge. The court's decision was based on the principles of law applied and the findings of fact on which the judge relied.

Cooper was found guilty of assaulting Teresa Glennie on 13 March 2006 at Canberra. The court's judgment included the principles of law applied and the findings of fact on which the judge relied. The court took into account the warning that would otherwise be required in criminal proceedings tried by a jury. The court expressly excluded any prior knowledge of the accused's criminal record or previous assault on the complainant from consideration in this trial.

The final orders of the court were that Cooper was found guilty of the assault charge and that the provisions of s 68C of the Supreme Court Act 1933 (ACT) applied to the trial. Cooper's guilty pleas to two counts of resisting police officers were not considered in the decision on the assault charge. The court's judgment included the principles of law applied and the findings of fact on which the judge relied, and it took into account the warning that would otherwise be required in criminal proceedings tried by a jury.

Orders

Orders of the court

1. On 25 June 2007 the accused, Bradley Grant Cooper, pleaded guilty to two counts of resisting two police officers. There was also presented a separate indictment charging that the accused:

? on the 13th of March 2006 at Canberra ? assaulted Teresa Glennie.

2. To that count the accused pleaded ?not guilty?. That being a fresh indictment he also elected to be tried by judge alone.

3. Thus, the provisions of s 68C of the Supreme Court Act 1933 (ACT) apply. That is:

Verdict of judge in criminal proceedings

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

4. Accordingly, the accused is entitled to the presumption of innocence and the Crown bears the onus of proof of each element of the charge to the criminal standard, that is, beyond reasonable doubt. Any reasonable hypothesis, open on the evidence, consistent with the innocence of the accused must be excluded.

5. Any verdict to be arrived at must be determined by reference only to evidence properly admitted at trial but including such matters of common knowledge as may be taken into account by virtue of s 144 of the Evidence Act 1995 (Cth) (Evidence Act).

6. The fact that I have received the pleas of guilty referred to in respect of matters following the alleged assault was expressly eschewed as a ground for suggesting that I should disqualify myself from trying the matter at issue on the separate indictment. So also was the fact that on 4, 5, 6 June 2007, I presided over a trial of this accused where an earlier assault on Ms Glennie was alleged to have been committed by him. He was acquitted by the jury on that occasion. Further, during the course of that trial reference was made to the prior criminal record of the accused which included a plea of guilty entered by him to a prior assault on Ms Glennie. Those matters, though I have knowledge of them, are not part of the evidence properly admitted before me in this trial and I expressly exclude them from consideration on the question before me, that is, whether or not the accused has been proved guilty of the offence charged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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