R v Cotic - [2003] QCA 435

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cotic [2003] QCA 435

PARTIES:

R
v
COTIC, Laurie John

(applicant/appellant)

FILE NO/S:

CA No 105 of 2003

DC No 1 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Warwick

DELIVERED EX TEMPORE ON:

6 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2003

JUDGES:

McPherson JA, Jones and Holmes JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – EXPRESSION OF JUDGE’S OWN OPINION – GENERALLY – where applicant convicted of five counts of indecent dealing with a child under 16 – where in summing up the trial judge stated that the jury should avoid preconceived notions of how a complainant would behave – whether comment suggested a view of the trial judge as to the evidence and rendered the trial unfair

COUNSEL:

R V Bowler for the applicant

R G Martin for the respondent

SOLICITORS:

R Bowler for the applicant

Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I will ask Justice Holmes to deliver the first judgment.

HOLMES J: The appellant appeals against conviction on five counts of indecent dealing with a child under 16. The sole ground of the appeal is that a passage in the learned trial Judge's summing-up, in which he cautioned the jury against assuming that complainants of sexual offences could be expected to behave in any particular way, rendered the summing-up unbalanced and the trial as a whole unfair.

The offences were said to have occurred on the 11th of January 2001. The complainant, a 14 year old boy, was staying with friends, Mrs and Mr M, who worked on a dairy farm managed by the appellant with the assistance of another man, G. Mr M managed the dairy herd while Mrs M did some housekeeping.

The complainant's evidence was that one morning a couple of days after his arrival he was asked by G to take some papers to the house shared by G and the appellant. While he was there the appellant emerged wearing only underpants and asked him to come and look at something in a bedroom. He removed the complainant's shorts, performed oral sex on him and masturbated him and himself before ejaculating on the complainant's stomach. At this point the co-accused G entered the room and joined in. The appellant rubbed the complainant's chest while G commenced to masturbate himself and the complainant. He also ejaculated onto the complainant.

G then left and the appellant kissed the complainant, inserting his tongue into his mouth. The complainant then showered. While he was doing so, the appellant joined him in the shower and touched his penis again. These events…

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 Cotic

Details

AGLC: R v Cotic [2003] QCA 435
Case: [2003] QCA 435
Decision Date: 6 October 2003

CaseChat Overview and Summary

In the matter of R v Cotic, the applicant appealed against his conviction on five counts of indecent dealing with a child under 16. The case was heard in the High Court of Australia. The applicant contended that the trial judge's comments during the summing up to the jury amounted to an expression of the judge's opinion on the evidence, thereby rendering the trial unfair. The applicant argued that the trial judge's direction suggested a preconceived notion of how a complainant should behave, which misdirected the jury and compromised the fairness of the trial.

The central legal issue was whether the trial judge's comments amounted to an impermissible expression of opinion that prejudiced the applicant's right to a fair trial. The court had to determine if the trial judge's remarks went beyond permissible guidance and instead conveyed the judge's view on the evidence, which could influence the jury's decision. The court examined whether the comments had the potential to affect the jury's impartiality and whether they constituted a misdirection that warranted a new trial.

The High Court found that the trial judge's comments, while not ideal, did not rise to the level of a misdirection that would vitiate the trial. The court held that the comments were part of the judge's general guidance to the jury and did not explicitly or implicitly express a view on the evidence. The judge's direction was deemed to be within the bounds of proper judicial guidance and did not suggest a preconceived notion of how a complainant should behave. Consequently, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also dismissed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

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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CITATION:	R v Cotic [2003] QCA 435
PARTIES:	R v COTIC, Laurie John (applicant/appellant)
FILE NO/S:	CA No 105 of 2003 DC No 1 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Warwick
DELIVERED EX TEMPORE ON:	6 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2003
JUDGES:	McPherson JA, Jones and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – EXPRESSION OF JUDGE’S OWN OPINION – GENERALLY – where applicant convicted of five counts of indecent dealing with a child under 16 – where in summing up the trial judge stated that the jury should avoid preconceived notions of how a complainant would behave – whether comment suggested a view of the trial judge as to the evidence and rendered the trial unfair
COUNSEL:	R V Bowler for the applicant R G Martin for the respondent
SOLICITORS:	R Bowler for the applicant Director of Public Prosecutions (Queensland) for the respondent