R v Cooper - [2015] QDC 93

[2015] QDC 93

DISTRICT COURT OF QUEENSLAND
CRIMINAL JURISDICTION
JUDGE R.S. JONES
THE QUEEN
v.
COOPER
BRISBANE
10.04 AM, THURSDAY, 23 APRIL 2015
EX TEMPORE ORDER

HIS HONOUR: After a trial lasting approximately two and a-half days, the jury returned a guilty verdict against the defendant in respect of one count of maintaining an unlawful sexual relationship and one count of rape. That occurred at about 1.30 pm on 22^nd April 2015. The matter was then listed for sentence at 3 pm that day and I should indicate that that verdict was taken after an application for a mistrial that was refused by me. In any event, at 3 pm, Mr Edwards, on behalf of the defendant, instead of proceeding with the sentence, made an application, in effect seeking that the sentence be adjourned to a date to be fixed and second that the defendant be granted bail pending the determination of his expected appeal against the conviction. The application to adjourn the sentence was not opposed, but the application for bail pending appeal was.

The background to the application was, as best as I can recall it, as follows. At about 3.40 pm on the 21^st of April, the jury requested that exhibit 1, being the record of interview of the complainant, be replayed and that exhibit B, the pre-recording of the complainant, also be replayed. As the combined total of those two discs was about two and a-quarter hours, the jury requested that that occur on the morning of the 22^nd and that they have a break between the playing of the two discs.

On the morning of the 22^nd, the record of the interview of the complainant was played, commencing at about 10.30 am and ending at about 11.40 am. Thereafter, the court adjourned on the assumption that when proceedings resumed the jury would then have the pre-recorded evidence of the complainant replayed. Upon the intended resumption of proceedings at about 12.05 pm, I was advised by the bailiff that the jury wanted some more time and after advising counsel of that, the court again adjourned in the absence of the jury at about 12:10pm.

Some 30 minutes later, that is, about an hour after the replaying of the record of interview had been completed, the court resumed in the absence of jury and, at that time Mr Edwards expressed concern about the delay in the jury viewing the pre-recorded evidence. I agreed with Mr Edwards’ concerns and after some discussion between the counsel, it was decided that the jury would be asked to come back into the courtroom and then have the pre-recorded evidence replayed to them.

Almost at the same time, and that occurred at about 12.40 pm. At about the same time, almost immediately after those discussions with counsel, the bailiff was advised and in turn advised me that the jury had already reached a verdict. Further discussion occurred between counsel and myself, wherein I expressed concerns about taking…

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 Cooper

Details

AGLC: R v Cooper [2015] QDC 93
Case: [2015] QDC 93
Decision Date: 23 APRIL 2015

CaseChat Overview and Summary

The case of R v Cooper was heard in the District Court of Queensland. The defendant was found guilty of maintaining an unlawful sexual relationship and rape. Following the verdict, the defendant’s counsel applied for the sentence to be adjourned and for the defendant to be granted bail pending the determination of his appeal against the conviction. The Crown opposed the application for bail.

The legal issues before the court included whether the defendant’s application for bail pending appeal should be granted, particularly in light of the defendant’s criminal history, compliance with parole and bail conditions, and the arguability of the appeal. The court considered the principles established in Ex parte Maher and other relevant cases, focusing on the risk of the defendant failing to appear or surrender himself into custody and the respect for the jury’s verdict.

The court held that while the defendant’s compliance with parole and bail conditions worked in his favour, the risk of him failing to appear or surrender himself into custody was unacceptable. Given the defendant’s criminal history and the nature of the offences, the court found no exceptional circumstances warranting the granting of bail. The application for bail was therefore refused. The court did not find the circumstances of this case to be irregularly obtained, which would have warranted exceptional circumstances for bail.

Orders