Cooper v The Queen
[2019] NZCA 651
•17 December 2019 at 12 noon
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA110/2018 [2019] NZCA 651 |
| BETWEEN | LAURA ALYS COOPER |
| AND | THE QUEEN |
| Hearing: | 18 November 2019 |
Court: | Collins, Brewer and Gendall JJ |
Counsel: | P L Murray for Appellant |
Judgment: | 17 December 2019 at 12 noon |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe application to adduce further evidence is declined.
CThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
Ms Cooper was found guilty by a jury of two charges of perjury.[1] On 1 February 2018 she was sentenced to 12 months’ home detention on each charge and made subject to a 12-month period of post detention conditions.[2]
[1]Crimes Act 1961, ss 108 and 109(1). The maximum punishment is seven years’ imprisonment.
[2]R v Cooper [2018] NZDC 1655.
Ms Cooper now appeals the convictions.[3]
Extension of time to appeal
[3]Ms Cooper’s notice of appeal indicated that she intended to appeal against her conviction and sentence. We received no submissions on the appeal against sentence and therefore treat it as abandoned.
Ms Cooper requires an extension of time to appeal because her notice of appeal was filed out of time.[4] Ms Cooper mistakenly filed her notice of appeal in the District Court and there was a small delay before it was received by this Court. The Crown does not oppose an extension being granted. We grant the application for an extension of time to appeal.[5]
Background
[4]Criminal Procedure Act 2011, s 231(2).
[5]Under s 231(3).
On Wednesday 20 May 2015 Ms Cooper and her partner, Mr Wildey, went to the Castlecliff Hotel in Whanganui where they consumed alcohol.
An altercation occurred which resulted in Mr Wildey facing a number of charges. He defended himself at trial in the District Court on 17 August 2015 and called Ms Cooper to give evidence.
The prosecution case against Mr Wildey was that Mr Wildey was aggressive, threatening and violent towards the hotel manager, Mr Singh. The defence case was that Mr Singh had been acting inappropriately (masturbating himself) and he was the aggressive one.
Ms Cooper gave evidence in support of Mr Wildey’s narrative. The police prosecutor warned her against committing perjury.
Mr Wildey was convicted.[6]
[6]Police v Wildey [2015] NZDC 19398.
Ms Cooper and Mr Wildey were subsequently charged with perjury and convicted following trial by jury in November 2017. Ms Cooper faced two charges of making assertions during evidence on oath known to her to be false and intended by her to mislead the District Court. The particulars of the first charge was her assertion in evidence that Mr Singh was “masturbating/touching himself/rubbing his crotch area”. For the second charge the particulars were her assertion in evidence that Mr Singh “pursued John Wildey outside and assaulted him along with other unknown persons”.
The appeal
We have set out the background to the appeal in very short form because Ms Cooper does not criticise what happened at her trial. Her appeal is on the ground that she has acquired fresh evidence that is so cogent that, had it been called at the trial, it might have led a reasonable jury to return a different verdict.[7]
[7]There was no formal application to admit the evidence as fresh evidence. We will evaluate the evidence to see whether it is in the interests of justice to admit it: see Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [116]–[128].
Our task is to decide whether the fact the jury did not hear the evidence is an occurrence that has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial.[8] If we find either to be the case then there has been a miscarriage of justice and we must allow Ms Cooper’s appeal and order a new trial.[9]
The evidence
[8]Criminal Procedure Act, s 232(4).
[9]Section 232(2); and see Misa v R [2019] NZSC 134 at [38]–[48].
During the altercation at the Castlecliff Hotel Mr Singh made a 111 telephone call. The call was recorded. A transcript of the call and a recording of the call were disclosed to Ms Cooper’s trial counsel on 1 November 2017 and 2 November 2017 respectively (the trial commenced on 6 November 2017).
Ms Cooper, post-trial, arranged for the recording of the 111 call to be synchronised electronically with CCTV footage taken at the hotel during the incident. We were told this allows the CCTV footage to be viewed while listening to the contemporaneous 111 call.
Subsequently, Dr Viktoria Papp of the University of Canterbury was retained to evaluate the transcript of the 111 call for accuracy and completeness.[10] In particular, Dr Papp was to try to verify the background utterances audible in the recording of the 111 call. That is to say, utterances by people in the hotel other than Mr Singh.
[10]Dr Papp is a forensic linguist.
Mr Murray’s submissions set out the results of Dr Papp’s report on which he particularly relies:
36.The key parts of the revised transcript, from [Ms Cooper’s] point of view, are:[11]
a.Page 2, line 3 – “MB ... fucking leg ... fucking asshole”. Mr Wildey alleged that he was assaulted by the victim. This is something [Ms Cooper] claimed to have seen. Only Mr Wildey faced a charge concerning this. Mr Wildey said that he was tripped or kicked by the victim in the pokie room. An available construction on the clarified audio is that Mr Wildey is referring to his leg having been assaulted by the victim who he proceeds to refer to in derogatory terms.
b.Page 3, lines 14-15 – “MB What a dickhead (?.... ) Might be. (pause) Who the fuck (is here)? ( ?:...) … a (wank / blank) and stick your fingers up your arsehole. … (Fucking hell) ... (ex_6)”. The evidence contains a possible reference to “wank”.[12] That is what [Ms Cooper] alleges the victim was doing in the pokie room.
c.Page 3, lines 20-21 – “MB You fucking back off, if you’re on (meth), this is one here, (he did / admit it). You only need to fucking suck up – and say ‘I’m sorry’. (ex_7)”. [Ms Cooper] argues that this is Mr Wildey telling the victim to “admit” what he was doing in the pokie room (as seen by [Ms Cooper]); and the need for the victim to apologise to [Ms Cooper].
d.Page 4, line 22 – “MB Bullshit ... you’re / your … you’re a (pervert) (ex_10)”. Labelling the victim, a “pervert”, if that is accepted, is consistent with what [Ms Cooper] says she saw and relayed to Mr Wildey.
e.Page 5, line 8 – “MB {Put on a (register) …”. Again, this could, if accepted, fit with [Ms Cooper’s] report to Mr Wildey, as Mr Wildey may be saying that the victim should be put on a (sex offenders) register. It is accepted that the possible linkage is less clear in this example.
[11]These are all said to be utterances of Mr Wildey.
[12]Passages within parentheses being the result of: “attempted resolution for noisy or overlapping speech material, ‘/’ indicating multiple possible resolutions”.
Mr Murray submits these snatches of words lend support to the sequence of events relied upon by Ms Cooper and Mr Wildey. A jury could accept they corroborate Ms Cooper’s evidence that Mr Singh was touching himself indecently. Further, if the jury accepted the words also corroborate that Mr Singh was the aggressor in the hotel then that makes more credible Ms Cooper’s evidence she saw Mr Singh and others assault Mr Wildey later outside the hotel.
Mr Murray submits also that the synchronised CCTV footage and audio recording of the 111 call raise a possibility that Mr Singh could have gone outside after Mr Wildey. This could provide an opportunity for the assault on Mr Wildey described in evidence by Ms Cooper. Mr Murray submits:
41.In the synchronised footage the images end at 21:45:33 while the audio continues. Previously, at 21:45:11 the victim can be seen opening the door to outside (by that stage [Ms Cooper] and Mr Wildey had been locked out of the hotel for a time). Before the footage ends the victim can be seen going outside. In terms of the transcript this is between the following:
MNo, no, she’s just abusing us.
(typing)
COMIs she outside as well?
MYeah.
COMIs he still there?
MYeah, Police, yeah Police have arrived.
42.It is following the victim saying “no, no, she’s just abusing us” that the CCTV goes blank.
43.The audio continues to run. There is a period of time with no talking, while the operator types (for approximately six to seven seconds). There is indistinguishable background noise. There is nothing conclusive to say that Mr Wildey was assaulted. There was an opportunity for it to happen prior to the Police arriving, as the victim had gone outside, the visual footage ended, and some seconds transpired before the victim says the Police arrived.
(Footnotes omitted.)
Discussion
Evidence is admitted on appeal if it is fresh evidence in the sense that it could not reasonably have been produced at trial and it is sufficiently credible and cogent.[13] That is to say the evidence has to be sufficiently probative of an issue or issues in the trial that, in the interests of justice, it should be taken into account because it might reasonably have led to a different verdict.
[13]See Lundy v R, above n 7; R v Bain [2004] 1 NZLR 638 (CA); and R v Crime Appeal (CA60/88) (1988) 3 CRNZ 512 (CA).
We accept that the disclosure of the audio record of the 111 call just before the trial meant Ms Cooper could not reasonably have obtained Dr Papp’s report for the trial or the synchronised CCTV footage and audio record evidence. So, we will focus on the cogency of the evidence.
In our view Dr Papp’s evidence does nothing to resolve the contest between the Crown’s case and Ms Cooper’s case. The utterances put forward are ambiguous. They are not probative of anything other than that there was an altercation and Mr Wildey was angry. Further, Dr Papp is unsure about the accuracy of her interpretation of some of the key utterances. For example, whether “wank” is the word used in the second resolution is, Dr Papp says, impossible to decide. Also, the identification in the fourth resolution of the word “pervert” is partly acoustic and partly context-driven. Dr Papp has low confidence the word is correctly identified. The same is true of the word “register” in the fifth resolution.
The evidence of the synchronised CCTV footage with the audio record is not probative either. As the Crown submits:
33.The “synchronised” audio and video does nothing to suggest that there was an opportunity for Mr Singh to go outside and assault Mr Wildey before the Police arrived. The prosecutor put the evidence on the basis that the patrol unit arrived and a second later Mr Singh reported its arrival. However, the position appears to be even more compelling: the unit is recorded as having self-reported its arrival (“Status: AR”) at 21:29:31; Mr Singh is recorded as having reported its arrival (“Police are Ten 7”) some 42 seconds later, at 21:40:13. In the interim Mr Singh is recorded as having informed the call-taker that there was a lady with the male (something that the appellant’s synchronised video suggests happened while Mr Singh was still inside the Hotel). After Mr Singh reports the arrival of the police he (correctly) reports that Mr Wildey went and hopped in the police car. Quite clearly there was no opportunity for Mr Singh to participate in a serious group assault on Mr Wildey before the Police arrived. The proposition that he effected such an assault in the presence of Police and without creating any sound of violence (the entire episode was recorded on the 111 call) defies belief.
(Footnotes omitted.)
This was a case where Mr Singh said Mr Wildey had tripped over his legs and from there an altercation developed with Mr Wildey being aggressive. The CCTV footage is consistent with that. At the police station afterwards neither Mr Wildey nor Ms Cooper made mention in their statements about masturbation or about Mr Wildey being assaulted outside the hotel.
We find the evidence is not cogent and therefore does not satisfy the criteria explained by the Privy Council in Lundy v R. Its absence from the trial has not created a real risk that the outcome of the trial was affected. The trial was not rendered unfair because the evidence was not before the jury.
Result
The application for an extension of time to appeal is granted.
The application to adduce further evidence is declined.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent