R v Cooper

[2006] QSC 420

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cooper [2006] QSC 420

PARTIES:

R
v

JODI ROSE-LEA COOPER

FILE NO:

134 of 2006

DIVISION:

Trial Division

PROCEEDING:

Pre-trial hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 2006

JUDGE:

Mackenzie J

ORDER:

That the applicant be tried separately from the accused persons Susan Joy Shipston, Gary James Goodrich and Brendan Charles Cooper.

CATCHWORDS:

CRIMINAL LAW – JOINT OFFENDERS – MURDER – Application for separate trial – disparity of strength of evidence – evidence prejudicial to applicant in co-accused’s record of interview – risk of positive injustice

COUNSEL:

C Chowdhury for applicant
D Meredith for respondent

SOLICITORS:

Legal Aid Queensland for applicant
Office of Director of Public Prosecutions for respondent

1. MACKENZIE J:  This is an application for a separate trial by the applicant.  She, together with Susan Joy Shipston, Gary James Goodrich (Ms Shipston’s son) and Brendan Charles Cooper (the applicant’s brother) are jointly indicted for murder.  The applicant’s role is as a person who allegedly drove her brother to a place in Kingaroy where he was to contrive to encounter the victim, apparently by chance, and join him and Mr Goodrich in a motor vehicle as part of a pre-arranged plan to drive the victim to an isolated place and kill him.  The precipitating reason for the killing is alleged to be that a threat had been made by the victim to harm the child of Mr Goodrich and his then de-facto wife Tanya Buchholz. 

1. There are no admissible admissions by the applicant.  A record of interview given by her has previously been excluded on the ground of involuntariness by Moynihan SJA.  The Crown case depends, in practical terms, on establishing that she was present when conversations were engaged in about killing the victim, that she assented to the plan implicit in those conversations, and that she drove the accused Brendan Cooper to Kingaroy knowing what was intended to happen. 

1. The murder remained a mystery for almost three years until Tanya Buchholz gave a statement to the police implicating Mr Goodrich and Brendan Cooper as those responsible for the killing and Ms Shipston for counselling and procuring it.  With respect to the applicant, Ms Buchholz said in her written statement to the police that she became aware about 7am on 29 May 2001, the day of the killing, that the applicant was at Ms Shipston’s house in Nanango where Ms Buchholz and Mr Goodrich had spent the night.  Ms Buchholz said that during that evening she had heard Mr Goodrich talk of the need to kill the victim and of getting Brendan Cooper who lived at Caboolture to come to Nanango.  Goodrich had left in his vehicle about midnight for that purpose. 

1. She stated that when she got up about 7am the following morning she saw the four accused sitting around a table in the kitchen.  She heard Mr Goodrich speaking of the need to arrange cars.  She refused to let her car be used.  Mr Goodrich then said that they would have to use the applicant’s car and told her to take her brother in her car.  About 10am she saw Mr Goodrich drive away alone in his parents’ car and the applicant drive off with her brother.  About 30 minutes later the applicant came back and said she had dropped her brother off.  About noon or a little later, Mr Goodrich and Brendan Cooper arrived in Goodrich’s parents’ vehicle. 

1. It will be noted that that statement does not establish what conversation preceded the discussion about the cars that were to be used.  Nor does it directly establish where the applicant dropped her brother off.

1. At the committal proceedings, in evidence-in-chief, Ms Goodrich said she was not sure if the applicant was there when she had got up, but that she had turned up some time that morning. She also gave evidence of the discussion about whose cars should be used and of refusing to allow hers to be used.  She said that the decision was made to use the applicant’s.  She said the applicant and her brother had left in the applicant’s car shortly after Goodrich, soon after 10am.  The applicant returned after about half an hour.  Goodrich and Brendan Cooper returned after 12.30pm. 

1. In cross-examination, she agreed that there had been no discussion with the applicant about a killing that she heard. She expressed the opinion that she did not think that the applicant knew what was going on.  She agreed that all the applicant was asked to do was to give her brother a lift to Kingaroy.

1. On 3 November 2006, Ms Buchholz signed an addendum statement which expanded on events on 29 May 2001.  In it she stated that on the morning of 29 May the four accused were all seated at the table.  “There was a discussion that morning” to kill the victim although Ms Bucholz did not think they were going to do it.  “The plan was one car was to be driven by” Mr Goodrich to get the victim and bring him to Kingaroy.  Mr Goodrich was “going to bring (the victim) to an ATM in Kingaroy and then drop (him) home”.  Mr Goodrich was to use Ms Shipston’s vehicle.  Brendan Cooper was to be driven by the applicant in her vehicle.  Ms Buchholz said she refused to lend them her own vehicle because she did not want to get involved.  “The plan was Brendan Cooper was going to pretend to accidentally run into Mr Goodrich and (the victim) at an ATM at Kingaroy where (Mr Goodrich) usually withdraws money”.  On one interpretation of it, it contains allegations that the applicant was present at the time when the plan was being discussed. 

1. There was then a pre-trial hearing before Mullins J on 10 November 2006 for the purpose of allowing cross-examination of Ms Buchholz on her addendum statement.  Although there is one possibly equivocal statement in her evidence in chief as to whether the applicant was at the house of the evening of 28 May 2001, the overall effect of her evidence is probably that the applicant was not there at that time to her knowledge.  When she went into the kitchen about 7am, she saw the four accused at the table.  She was asked about any conversation she heard and replied that Mr Goodrich asked to use her car and she refused to let him. 

1. It is apparent from her examination-in-chief that the witness was one who had difficulty in grasping the concept that she was expected to give evidence of conversations she had actually heard and details of them rather than her interpretation of the effect of conversations, and of facts that she had actually observed.  That has two consequences.  The first is that it is not easy to separate what is based on her direct knowledge of facts and conversations from that which is not.  The second is that it is not easy to be sure of the chronological sequence of events, especially insofar as critical issues are whether the conversation about the plan was held when the applicant was present and whether she may be inferred to have acquiesced in what was discussed.

1. For these reasons, care must be taken about drawing inferences about the applicant’s state of knowledge.  That is not to say that more precise evidence of what was said, when it was said, and who was present when it was said, may not be elicited by skilful and rigorous questioning or, on the other hand, if the witness is unsure about aspects of the matter, the extent of the areas of uncertainty is clearly defined.  But for the purpose of the present exercise, the evidence must be assessed as it stands. 

1. The problem is illustrated at T48-49 of Ms Bucholz’s evidence before Mullins J where, after giving what purports to be details of the plan, the witness says that the applicant was present when the plan was being discussed but that the witness was not listening to all that they were discussing.  Then in cross-examination by Mr Lynch for Brendan Cooper, she arguably says that the conversation at the table after she had woken up revolved around whose cars were to be used, with a lack of certainty on her part whether the applicant was present.  She then agreed that the conversation about killing the victim was the night before and that she was uncertain whether it was raised again in the kitchen.  When cross-examined by Mr Chowdhury for the applicant, that firmed to a more certain statement that there was no discussion in the applicant’s presence of a killing.  Then in re-examination she arguably reverted to actually hearing such a conversation in the applicant’s presence. 

1. There is another witness Douglas Cooper (another brother of the applicant) who has pleaded guilty to being an accessory after the fact.  He was also examined and cross-examined before Mullins J.  He gave evidence that, on the evening that seems to be 28 May 2001, he, the applicant and two other people were at Ms Shipston’s house when there was a loud discussion about killing the victim.  His evidence in cross-examination was that the applicant was not in the room where the discussion was occurring but in an adjoining room, watching TV.  He accepted that although he had listened to what was being said, he could not say what the applicant heard. 

1. That is the state of the evidence against the applicant as it stands.  It will be noted that the evidence of Ms Buchholz and Mr Cooper as to the presence of the applicant at the home on the evening of 28 May 2001 is not identical, unless the applicant arrived after Ms Buchholz had retired for the night. 

1. In support of this application, the applicant submits that the case against Ms Shipston is different from the case against her.  In the case of Ms Shipston, the case relies on evidence of Ms Buchholz, supplemented by statements recorded by a listening device placed in Ms Shipston’s address at Redcliffe in 2004.  It is pointed out correctly that those tape recordings are inadmissible in the case of the applicant. 

1. It is also submitted that the case against Mr Goodrich consists of confessional statements made by Mr Goodrich to Ms Buchholz and to other witnesses together with a series of interviews given by Mr Goodrich over a period of days in December 2004.  Those are not admissible against the applicant either.  Mr Chowdhury pointed out a number of matters which he submitted were prejudicial to the applicant in Goodrich’s statements.  Several of them are of marginal admissibility and may be liable to be excluded.  However there is a problem about exclusion of the evidence at the instance of the Crown or the applicant if, for forensic reasons, Mr Goodrich wishes those matters to be led in his case.  That cannot be resolved on this occasion.  However, leaving aside the possibility that a number of the statements may be liable to exclusion, there is a clearly admissible statement in one of the records of interview that the gun was first taken out of the applicant’s car and put into Ms Shipston’s car.  It is said that the applicant and her brother pulled up in her vehicle “and they got out a .22 rifle and came in and asked Tanya for a white towel, or just a towel and she brought out a white towel and he wrapped the gun and put it in the back of my mum’s car”.  After that, according to the record of interview, she and Brendan Cooper “vanished for the day”. 

1. His record of interview also contains information that, in Kingaroy, Brendan Cooper arrived with the applicant at the bank.  There is also a passage of questioning which, if admitted, is clearly prejudicial in which the applicant expresses an opinion as to the applicant’s knowledge of what was happening, although he says that he inferred that rather than being told directly.  Finally, Mr Goodrich relates a conversation with Tanya Buchholz, quoting her as saying “even Jodi reckoned that Brendan never done it and you did it”, prompting the response from Goodrich “what’s the fucken matter, we were all there, weren’t we?”. 

1. There was no controversy about the applicable principles upon which the application should be determined.  It was accepted by the Crown Prosecutor that the principles set out in the latter part of the applicant’s written submissions are a correct statement of principles. 

1. As was submitted, the critical question is whether the applicant had knowledge that there was a plan to murder the victim at the time when she drove her brother to Kingaroy and that her intention in doing so was to aid that plan.  The evidence against her, subject to what has been said in paragraphs [10] and [11] is tenuous on those issues.  The case is one where there are other statements, admissible in evidence against other accused persons but not against the applicant. If the rules of evidence are not observed by a jury, such information is susceptible to being used to fill in gaps in the case against her. The trial judge would direct the jury that they must not do so. If such a direction were given, a jury would be assumed to have followed it (Gilbert v The Queen (2000) 201 CLR 414). However, a case where there is such a disparity in the quality of the evidence as between different accused seems to me to be particularly susceptible to a risk that the task of reaching a verdict on admissible evidence against the applicant without inadvertent contamination by the inadmissible evidence will prove impossible in practice.

1. It is true that a separate trial of the applicant would be probably be shorter than a trial involving the four accused, but since the Crown would have to prove the murder it is in my view probably optimistic to accept that it will be as short as the applicant’s counsel suggests if it proceeds. In any event, this kind of consideration cannot be decisive, especially if there are sound reasons to decide otherwise.

1. In the circumstances, I am satisfied that the applicant is entitled to be tried separately from those who are currently to be tried together.  It is ordered that the applicant be tried separately from the accused persons Susan Joy Shipston, Gary James Goodrich and Brendan Charles Cooper.