R v Cooper
[2000] QCA 220
•6 June 2000
SUPREME COURT OF QUEENSLAND
CITATION: R v Cooper [2000] QCA 220 PARTIES: R
v
COOPER, Glenn Neil
(appellant)FILE NO/S: CA No 7 of 2000
DC No 285 of 1999DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction ORIGINATING COURT: District Court at Southport
DELIVERED ON: 6 June 2000 DELIVERED AT: Brisbane HEARING DATE: 14 April 2000 JUDGES: de Jersey CJ, McMurdo P, and Helman J.
Separate reasons for judgment of each member of the court, each concurring with the directions made.ORDER: Direct:
1. that further Crown submissions be presented in writing and served on the appellant within 14 days
2. that any response by the appellant be presented in writing and served on the Crown within a further 14 days
3. that any reply by the Crown to the appellant’s response be presented in writing and served on the appellant within a further 14 days
CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF GENERAL CONDUCT OF CASE – EXPRESSION OF JUDGE’S OWN OPINION - whether the learned trial judge intervened during the course of the trial
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICUALR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – AVAILABILITY AT TRIAL – EVIDENCE IN POSSESSION OF CROWN NOT DISCLOSED TO DEFENCE – whether reports containing prior inconsistent statements of a witness were not made available to counsel for the accused
Criminal Code s 320
COUNSEL: The appellant appeared on his own behalf
L Clare for the respondentSOLICITORS: The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Helman J. The Crown case depended substantially on the evidence of Ms Chippindale. Ms Chippindale’s state of sobriety at the time of the commission of the offence by the appellant upon his mother was an important matter going to the reliability of the recollection of the incident which Ms Chippindale recounted from the witness box. The appellant referred us to material said not to have been made available by the Crown, in breach of duty, to defence counsel at the trial. That material bore on the credibility of the mother’s evidence at the trial of what Ms Chippindale had been drinking and her state of sobriety. Because of the way the points were developed in the course of the hearing of the appeal, the Crown did not have a reasonable opportunity to address this material and the issue whether the Crown, if in possession of the material at or prior to the trial, should have disclosed it to the defence.
I agree with Helman J that the parties should have a further opportunity to address submissions upon these aspects ; that is, Ms Chippindale’s consumption of alcohol and any apparent effect upon her in relation to the two documents referred to in para 11 of Helman J’s reasons, and any Crown obligation to disclose that material.
We have already received relevant submissions from the appellant on these matters.
Further Crown submissions should, within 14 days, be presented in writing, and served, with the appellant responding should he wish, within 14 days thereafter, also in writing.
It should not be necessary for the court to hear further oral submissions, but if a further oral hearing is sought, that should be signalled to the court in the further written material. A copy of any further submissions from the appellant should, of course, be served on the Crown, with the Crown being at liberty to respond if necessary on any issue of law within 14 days thereafter.
McMURDO P: I agree with the reasons for judgment of Helman J and with the orders proposed by the Chief Justice.
HELMAN J: On 30 November 1999 the appellant came before the District Court at Southport charged under s. 320 of the Criminal Code that, on 17 March 1998 at Gold Coast, Queensland, he did grievous bodily harm to a Mrs June Fanselow. Mrs Fanselow is the appellant’s mother. She was sixty-four years old at the time of the incident which gave rise to the charge, and he forty years old. The appellant pleaded not guilty, the trial proceeded, and on 3 December 1999 the jury found him guilty. On 6 December 1999 at Brisbane the learned trial judge sentenced the appellant, who had been in custody for over thirteen months awaiting trial, to imprisonment for three years and recommended that he not be eligible for release on parole until 6 June this year.
The appellant, who was not represented by solicitor or counsel before us, lodged a notice of appeal against his conviction on the following ground:
I feel the Judge, by entering into the Arena of the Court by stopping crucial cross-examination at a vital moment, took the initiative away from the defence therefore robbing the defence of the grounds for a defence.
At the hearing of the appeal the appellant did not abandon that ground of appeal but did not elaborate on it. His argument before us was directed to other complaints about his trial, some of which were set out in a letter which had been received by the Registrar of this court prior to the hearing, but a copy of the letter had not found its way into the hands of counsel for the Crown, Mrs Clare. Mrs Clare had therefore not been able to prepare arguments on the further matters to which the appellant referred in the course of his submissions.
The charge arose out of an incident which occurred in a home unit occupied by Mrs Fanselow. Mrs Fanselow and Ms Wendy Chippindale were drinking alcohol when the appellant joined them. After some time there was an altercation between mother and son during which he struck at her face. Soon after, she suffered grievous bodily harm, probably as a result of a fall. Mrs Fanselow’s evidence was that the appellant had looked at her with what looked like a ‘lizard eye’, and that she then felt pain and lost consciousness. Her next memory was leaning on a window ledge and then waking up in hospital. She was unable to recall any other details of the incident.
The appellant gave evidence that he had asked his mother about the identity of his father and the possibility that he had a brother called Mark. His mother then abused him asserting that he was a ‘fucking psycho’, ‘mental’, ‘mad’, and a ‘loser’. He said that he tried to strike his mother, and hit her spectacles, which fell off. There was a scuffle and he and his mother over-balanced. He fell on top of her. He stood up. Mrs Fanselow screamed ‘derogatory things’ at him and put her hands on his throat. She then poked at his eyes. The appellant struggled to free himself, she lunged at him, and he tripped over a footstool. He heard a crash and saw his mother ‘flip off the point end’ of a coffee table, and she hit her head on the floor ‘with a terrible thud’.
Ms Chippindale said she saw the incident. She said that the appellant began to hit Mrs Fanselow around the head and the body ‘without warning’. It was ‘like a frantic hitting’, ‘like a frenzy punching’ attack, for approximately seven or eight seconds. Mrs Fanselow fell when the appellant hit her and did not get up. Ms Chippindale said that Mrs Fanselow did not do anything to defend herself. Soon after, the appellant left the unit.
It is apparent that the Crown case relied substantially on the evidence of Ms Chippindale, the appellant’s case being that any grievous bodily harm suffered by Mrs Fanselow was accidental. Cross-examined about the effect of the alcohol she had consumed on her, Ms Chippindale said that she did not think that she was intoxicated at the time the incident occurred, and that on a scale of zero to ten in which zero is ‘completely free of alcohol’ and ten is ‘as drunk as you possibly could be’, she said that she would say she was three. When cross-examined about Ms Chippindale’s state, Mrs Fanselow said that Ms Chippindale was not sober: ‘she was a little bit sort of tired. She said she felt tired, and drink does do that to you’. She said that Ms Chippindale was not slurring her words. Asked why it was that she thought that Ms Chippindale was a bit drunk, she said, ‘Because she said she felt tired, and normally when she has a few drinks she says she feels tired’.
It is convenient to deal first with the ground of appeal in the appellant’s notice of appeal, and then to consider the other matters. If it were thought that there was substance in any of those other matters consideration could be given to allowing an amendment to the appellant’s notice of appeal after hearing further submissions from the appellant and the Crown.
The reference to the learned trial judge’s entry into the arena is, it appears, to two instances in which her Honour interrupted the cross-examination of Mrs Fanselow by the appellant’s counsel. On the first occasion, after Mrs Fanselow had been shown an exhibit (no. 3) which was a photograph of the room in which the incident occurred she seemed to her Honour to be ‘slightly distracted’. The jury retired to the jury room at her Honour’s request and her Honour questioned Mrs Fanselow about her unease. Mrs Fanselow said that the blood shown in the photograph had upset her, and that a question that the appellant’s counsel had asked about curtains also shown in the photograph had appeared to Mrs Fanselow to be stupid. Her Honour explained to Mrs Fanselow that counsel was performing his duty and that she would intervene if necessary should any unfairness to the witness be apparent. Soon after, the trial proceeded.
On the second occasion on which her Honour intervened she did so in order to urge the appellant’s counsel to clarify a line of questioning which her Honour indicated she did not consider to be as clear as it might be.
The cross-examination of Mrs Fanselow was quite lengthy and her Honour’s interruptions, as I read the record, did not inhibit the appellant’s counsel in putting his client’s case. Accordingly I conclude that there is no substance in the ground of appeal which appears in the appellant’s notice of appeal.
A number of the complaints which are referred to in the appellant’s letter result from his being served with two documents in connexion with Mrs Fanselow’s claim to criminal compensation arising from the conviction of the appellant. In a statement dated 9 November 1998, which the appellant asserted was not made available to his counsel during the trial, Mrs Fanselow had, he said, made statements which, the appellant argued, were inconsistent with her evidence at the trial. She had said ‘This lounge is near the front door’, which was, the appellant argued, contrary to evidence that she had given at the trial. I do not think that this alleged discrepancy is of sufficient moment to warrant further consideration. The appellant also alleges that in the statement of 9 November 1998 Mrs Fanselow said that Ms Chippindale had been drinking straight whisky whereas at the trial she had said that Ms Chippindale had been drinking whisky and water. Another document, which the appellant asserted also had not been available to his counsel at the trial, was an affidavit sworn by Mrs Fanselow to which a copy of a report made by a psychiatrist at least a year before the trial was exhibited. The psychiatrist had recorded that Mrs Fanselow had said to him that Ms Chippindale had had a lot to drink and ‘may not have been terribly coherent’. That, the appellant submitted, was at odds with evidence at the trial given by Mrs Fanselow and Ms Chippindale to the effect that although Ms Chippindale had had a number of alcoholic drinks she was not so affected by her consumption of alcohol as to be incoherent.
It was, as I have related, difficult for Mrs Clare to make submissions on the subject of the prior possibly inconsistent statements, as she had had no notice of the appellant’s argument about such statements. If there were in the Crown prosecutor’s brief a statement by a Crown witness which was inconsistent with the evidence of that witness, the prosecutor was obliged to disclose it to the appellant’s counsel: see J. H. Phillips, ‘Practical Advocacy’, 62 A.L.J. 64, at pp. 65-66. It would appear that the statement of 9 November 1998 could have been in the possession of the Crown at the time of the trial, but whether the report referred to in Mrs Fanselow’s affidavit was in the possession of the Crown prosecutor is another matter. The discrepancy between the evidence as to whisky and water and the statement concerning straight whisky would at first sight appear to be trivial, but coupled with the other evidence that, contrary to what was said by Mrs Fanselow at the trial, Ms Chippindale may not have been terribly coherent at the time of the incident, it could have greater cogency. At all events I do not think it appropriate to proceed to a final decision on this matter until there has been a further opportunity for the parties to be heard on the subject.
There was another complaint raised in the appellant’s letter which in my view does not require further consideration. In giving her evidence Mrs Fanselow made an oblique reference to an incident in which the appellant had allegedly assaulted Ms Chippindale’s friends. As soon as that happened the appellant’s counsel asked if he might raise a matter in the absence of the jury whereupon her Honour asked Mrs Fanselow and the jury to leave the courtroom. As Mrs Fanselow left the courtroom she walked past the dock and, in the presence of the jury, said the word ‘liar’ to the appellant. Those matters were fully discussed in the absence of the jury. The appellant’s counsel conceded that the reference to the assaults on Ms Chippindale’s friends did not call for the discharge of the jury, but said that he would seek instructions on the question of Mrs Fanselow’s calling the appellant a liar. That matter was taken no further, and I can see no justification for the intervention of this court as a result of that incident. Neither of Mrs Fanselow’s statements would have justified her Honour in concluding that there had been a mistrial. The appellant made further complaints in the course of his oral submissions which were neither in his notice of appeal nor in his letter. They may all be summarized by saying that they concerned inconsistencies on matters of detail which it was open to the jury to resolve in favour of the Crown.
I therefore conclude that further submissions should be invited on the statements by Mrs Fanselow concerning Ms Chippindale’s condition at the time of the incident which are allegedly inconsistent with her evidence at the trial. I conclude there is no merit in the other matters argued by the appellant.
Since writing the above, I have had the advantage of reading the reasons prepared by the Chief Justice. I agree with the directions he proposes in his paragraphs [4] and [5].
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