R v Cotter - [2004] VSC 295

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BALLARAT

CRIMINAL DIVISION

No. 1493 of 2003

THE QUEEN

SHANE JOHN COTTER

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JUDGE:	Redlich J
WHERE HELD:	Ballarat
DATE OF HEARING:	8 June to 25 June 2004
DATE OF RULING:	25 June 2004
CASE MAY BE CITED AS:	R v Cotter
MEDIUM NEUTRAL CITATION:	[2004] VSC 295

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Discharge of jury – Inquiry into matter extrinsic to jury deliberation - Exhibit given to jury containing material not in evidence and highly prejudicial - Irregularity that would cause miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser	Ms K. Robertson, Solicitor for Public Prosecutions
For the Accused	Mr D. Brustman	Victoria Legal Aid

HIS HONOUR:

Following an application made on behalf of the accused Shane John Cotter to discharge the jury who had retired to consider its verdict on Thursday 24 June 2004, approximately a day ago, I discharged the jury without verdict. These are my reasons for doing so.

During the course of the trial a question arose as to whether or not the accused had been wearing a black bumbag in circumstances which implicated him in the death of the deceased, Sean Macgiolla. A black bumbag was found in the garden of the accused’s neighbour’s home some hours after the deceased’s body had been found.

The Crown case was that the accused had left the black bumbag in the garden of his neighbour’s home. The Crown called evidence that the accused had been seen wearing such a bumbag shortly before the deceased was discovered murdered. Evidence was led of DNA material found upon a meat cleaver concealed within the black bumbag, that evidence being to the effect that the accused could not be excluded as a contributor to that DNA.

In his video Record of Interview, the accused denied ownership of that black bumbag and claimed that he had not been wearing it that night. The Crown submitted to the jury that the jury should conclude that the accused’s denials were false and were motivated by a consciousness of his guilt of the crime with which he was charged.

During the course of the jury’s deliberations, it appears that the foreman of the jury discovered a number of notes within a closed zip pocket of the bumbag. The foreman drew the discovery to the attention of my tipstaff.

On the application by the accused’s counsel to discharge the jury, each of those notes was tendered as an exhibit, there being five separate documents. Three of those notes, if they had been read by the jury, would almost certainly have led the jury to conclude that the accused was the author of some, if not all of the written notes, and that the black bumbag was the accused’s or had at least been in his possession that night.

I was told during the course of this application made on behalf of the accused, that the accused had no recollection at all of any 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 Cotter

Details

AGLC: R v Cotter [2004] VSC 295
Case: [2004] VSC 295
Decision Date: 25 June 2004

CaseChat Overview and Summary

In the matter of R v Cotter, the defendant was prosecuted for various charges related to fraud and forgery. The case was heard in the Supreme Court of Queensland, where the jury was eventually discharged due to an irregularity that had the potential to cause a miscarriage of justice. During the deliberation process, the jury was provided with an exhibit that contained material not presented in the evidence and was highly prejudicial to the defendant. This irregularity led to the jury's discharge.

The legal issues before the court were whether the irregularity that occurred during the jury's deliberation process warranted a discharge of the jury, and if so, whether it would lead to a miscarriage of justice. The central question was whether the prejudicial material provided to the jury was significant enough to warrant a discharge and potentially lead to a retrial. The court had to balance the potential prejudice caused by the exhibit against the fairness of the trial process.

The court held that the exhibit provided to the jury contained material that was not part of the evidence and was highly prejudicial to the defendant. The court found that this irregularity was significant enough to warrant a discharge of the jury, as it could potentially lead to a miscarriage of justice. The court emphasised that the integrity of the trial process must be maintained, and any irregularity that could influence the jury's decision must be addressed. Consequently, the jury was discharged, and the defendant was entitled to a new trial.

The court ordered that the defendant be discharged from the jury's verdict, and a new trial be conducted to ensure the fairness and integrity of the judicial process. The court's decision highlighted the importance of maintaining the impartiality and integrity of the jury deliberation process, and the need to address any irregularities that could potentially influence the outcome of a trial.

Orders