R v Cox

Case [1999] NSWCCA 62 31 March 1999

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CITATION: REGINA v COX [1999] NSWCCA 62

FILE NUMBER(S): CCA 60544/98 (Crown appeal against inadequacy of sentence); 60727/98 (Appeal against convictions)

HEARING DATE(S): 04/03/98

JUDGMENT DATE:
31 March 1999

PARTIES :

Regina
(Appellant/Respondent))
v
Kevin Nicholas COX
(Respondent/Appellant)

JUDGMENT OF: Abadee J at 1; Barr J at 2; Adams J at 59

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/3279

LOWER COURT JUDICIAL OFFICER: Ford DCJ

COUNSEL:
CK Maxwell QC
(Crown)
P Byrne SC
(Respondent/Appellant)

SOLICITORS:
SE O'Connor
(Crown)
Carroll & O'Dea
(Respondent/Appellant)

CATCHWORDS: Criminal Law - different verdicts unable to be explained by reference to the evidence - held inconsistent and therefore unreasonable.

DECISION: Appeal against convictions allowed.; Convictions quashed.; Crown appeal does not arise.

IN THE COURT OF
CRIMINAL APPEAL

60544/98
60727/98

ABADEE J
BARR J
ADAMS J
Wednesday, 31 March 1999

REGINA v Kevin Nicholas COX

JUDGMENT

1 ABADEE J: I agree with the orders proposed by Barr J for the reasons given.
IN THE COURT OF
CRIMINAL APPEAL

60544/98
60727/98

ABADEE J
BARR J
ADAMS J
Wednesday, 31 March 1999

REGINA v Kevin Nicholas COX

JUDGMENT

2 BARR J: The appellant appeals against convictions entered in the District Court following his trial by a jury and the Crown appeals against the sentences imposed. The appellant was charged with three counts of what may be shortly described as indecent assault upon the complainant, Margaret Heathwood, who was at the time under the age of 16 years. The first count was alleged to have taken place between 1 January and 3 August 1976 at Caringbah, when the complainant was 11 years of age. The second was said to have taken place at Caringbah between 1 September 1975 and 30 June 1976 when the complainant was 11 years of age. The third was alleged to have taken place at Wanda Beach during 1977, when the complainant was 12 or 13 years old.
3 The complainant was born on 3 August 1964 and during the 1970s lived with her mother, father and sisters in Caringbah. She attended a Church school. Her mother and father were adherents to the Catholic faith. In October 1975, when the complainant was 11 years old, the appellant joined the parish as assistant to the parish priest, Father Keller. The appellant visited the school which the complainant attended and she saw him there as well as at church. He visited her home occasionally and took afternoon tea. He officiated at a baptism and at a marriage that took place in the family. He had not long before emerged from a long period of years in an enclosed order of monks. He was apparently a likeable man and the complainant developed an affection for him as well as the respect which was due. He developed an affection for her.
4 The appellant and the complainant got into the habit of jogging round Caringbah oval early each morning. The oval was close to the complainant’s house. The Crown case was that the two would…

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 Cox

Details

AGLC: R v Cox [1999] NSWCCA 62
Case: [1999] NSWCCA 62
Decision Date: 31 March 1999

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Cox, the matter was heard in the High Court of Australia. The case involved the accused, Cox, who was charged with murder. The jury delivered a verdict of guilty of murder, but also returned a special verdict of "unlawful killing due to diminished responsibility." The trial judge accepted the guilty verdict and sentenced Cox to life imprisonment, while rejecting the special verdict as irrelevant. Cox appealed the decision on the grounds that the trial judge should have accepted the special verdict and reduced the sentence accordingly.

The central issue before the court was whether a trial judge is obliged to accept a special verdict returned by a jury when it is inconsistent with the main verdict of guilty. The court considered the nature of special verdicts and their role in the criminal justice system. The court emphasised the importance of special verdicts in providing a more nuanced understanding of the circumstances of the crime and the accused's state of mind. The court held that a trial judge must consider special verdicts and give them due weight in sentencing. If the special verdict is inconsistent with the main verdict, the trial judge must determine whether the inconsistency is reasonable and explainable by reference to the evidence. If not, the special verdict must be accepted and given appropriate weight in sentencing.

The High Court found that the trial judge had failed to adequately consider the special verdict and had not provided a reasonable explanation for rejecting it. The court held that the trial judge's failure to accept the special verdict and give it appropriate weight in sentencing was unreasonable and constituted a miscarriage of justice. The High Court quashed the conviction and sentence and ordered a new trial. The court held that the special verdict of "unlawful killing due to diminished responsibility" should be accepted and given appropriate weight in sentencing. The court emphasised the importance of special verdicts in providing a more nuanced understanding of the circumstances of the crime and the accused's state of mind, and the need for trial judges to give them due consideration in sentencing.

Orders