R v Cotton

Case [2015] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v COTTON

[2015] SASCFC 17

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)

20 February 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCELLANEOUS GROUNDS ON WHICH NEW TRIAL GRANTED OR REFUSED

Appeal against conviction.  The defendant was convicted following a trial by judge alone of two counts of assault, two counts of aggravated assault, three counts of aggravated assault causing harm, one count of threatening to cause harm and four counts of doing an act creating a risk of harm.  The trial concluded on 5 June 2013.  The Judge’s verdict and reasons were delivered on 24 September 2014.

Whether the reasons of the Judge were inadequate.  Whether the Judge erred in failing to make findings of fact capable of sustaining verdicts of guilty.

Held per Gray J (Kourakis CJ and Stanley J agreeing) allowing the appeal:

(1)  The Judge failed to make findings in relation to inconsistencies in the evidence given by the various prosecution witnesses. 

(2)  The task of the appellate court has been severely compromised. 

(3)  The Judge has not explained how he reached his satisfaction beyond reasonable doubt on each of the counts, with the possible exception of the counts of doing an act creating a risk of harm.

(4)  In relation to the counts of doing an act creating a risk of harm, the Judge had regard to some unspecified “earlier conduct towards [the complainant]” and regarded this conduct as being relevant to his conclusion as to the defendant’s state of mind.  The Judge was obliged to identify the earlier conduct and explain his use of that conduct. 

(5)  Appeal allowed and retrial ordered.

Evidence Act 1929 (SA) s 34R; Criminal Law Consolidation Act 1935 (SA) s 29(2), referred to.
R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; R v Maxwell (1998) 217 ALR 452; Monie v Commonwealth of Australia (2005) 63 NSWLR 729; Goose v Wilson Sandford & Co (1998) 142 SLJB 92; Mount Lawley Pty Ltd v Planning Commission (WA) (2004) 29 WAR 273, considered.

R v COTTON
[2015] SASCFC 17

Court of Criminal Appeal:  Kourakis CJ, Gray and Stanley JJ

  1. KOURAKIS CJ:    I would allow the appeal for the reasons given by Gray J.

    GRAY J.

  2. This is an appeal against conviction. 

  3. Following a trial by Judge alone in the District Court, the defendant and appellant, Alan John Cotton, was convicted of two counts of assault, two counts of aggravated assault, three counts of aggravated assault causing harm, one count of threatening to cause harm and four counts of doing an…

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AGLC
R v Cotton [2015] SASCFC 17
Case
[2015] SASCFC 17
Decision Date

CaseChat Overview and Summary

The appeal in *R v Cotton* concerned a criminal conviction where the defendant, Cotton, appealed against findings of guilt made by a judge sitting without a jury. The dispute centred on the adequacy of the trial judge's reasons for conviction, particularly in relation to inconsistencies in prosecution evidence and the use of certain evidence. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Gray and Stanley JJ.

The primary legal issues before the Full Court were whether the trial judge had failed to adequately address inconsistencies in the evidence of prosecution witnesses, whether the judge had sufficiently explained the basis for his satisfaction of guilt beyond reasonable doubt on each count, and whether the judge had properly considered and explained the relevance of earlier conduct by the defendant towards the complainant when determining the defendant's state of mind. The court also considered the impact of significant delay on the appellate court's ability to review the findings of fact.

Gray J, with whom Kourakis CJ and Stanley J agreed, held that the trial judge had erred in several respects. Firstly, the judge failed to make findings regarding inconsistencies in the prosecution witnesses' evidence, which severely compromised the appellate court's task. Secondly, the judge did not adequately explain how he reached his satisfaction beyond reasonable doubt for most counts, with the exception of those involving an act creating a risk of harm. In relation to those counts, the judge had improperly relied on unspecified "earlier conduct" without identifying it or explaining its relevance to the defendant's state of mind. The court noted that significant delay can necessitate closer scrutiny of findings of fact, as it may indicate that certain matters were overlooked.

Consequently, the Full Court allowed the appeal, set aside the verdicts of guilty, and ordered a retrial. The court declined to comment further on the factual allegations to avoid prejudicing the retrial and indicated that issues of duplicity, evidence admissibility, and proper use of evidence would be matters for the judge presiding over the retrial.

Orders

Orders of the court

Held per Gray J (Kourakis CJ and Stanley J agreeing) allowing the appeal:

(1) The Judge failed to make findings in relation to inconsistencies in the evidence given by the various prosecution witnesses.

(2) The task of the appellate court has been severely compromised.

(3) The Judge has not explained how he reached his satisfaction beyond reasonable doubt on each of the counts, with the possible exception of the counts of doing an act creating a risk of harm.

(4) In relation to the counts of doing an act creating a risk of harm, the Judge had regard to some unspecified “earlier conduct towards [the complainant]” and regarded this conduct as being relevant to his conclusion as to the defendant’s state of mind. The Judge was obliged to identify the earlier conduct and explain his use of that conduct.

(5) Appeal allowed and retrial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Where there is significant delay, it is incumbent upon the appellate court to look with special care at any findings of fact challenged on appeal. The usual advantage that a trial judge has in seeing and hearing the evidence is likely to be weakened.[19] Delay may assist in establishing error because the inference might more readily be drawn that a failure to deal with particular matters upon which an applicant relied in contradiction of the prosecution case resulted from those matters being overlooked, either because of the time which has passed or because of the pressure on the judge to complete the judgment.[20][19] R v Maxwell (1998) 217 ALR 452, 463; citing Goose v Wilson Sandford & Co (1998) 142 SLJB 92.[20] Monie v Commonwealth of Australia (2005) 63 NSWLR 729, [44].Conclusion For these reasons, I would allow the appeal and order that the defendant be retried. As there is to be a retrial, it is not appropriate to comment further in regard to the factual allegations giving rise to the complaints. It is also unnecessary to consider further the detailed complaints advanced by the defendant on the appeal. Issues of duplicity, including latent duplicity, can be addressed at the retrial in accordance with the well established authorities on those topics. Issues concerning the admissibility of evidence and the proper use of evidence will be matters to be the subject of submission to the Judge conducting the retrial. STANLEY J: I agree that the appeal should be allowed for the reasons given by Gray J. I would set aside the verdicts of guilty in relation to each of the counts and order a retrial.

Ratio Decidendi

Legal Principle Established

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