Cooper v The Queen - [2019] NZCA 651

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA110/2018
[2019] NZCA 651

BETWEEN	LAURA ALYS COOPER Appellant
AND	THE QUEEN Respondent

Hearing:	18 November 2019
Court:	Collins, Brewer and Gendall JJ
Counsel:	P L Murray for Appellant J A Eng for Respondent
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…

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 Cooper v The Queen

Details

AGLC: Cooper v The Queen [2019] NZCA 651
Case: [2019] NZCA 651
Decision Date: 17 December 2019 at 12 noon

CaseChat Overview and Summary

Laura Alys Cooper appeals against her convictions for perjury, which were handed down following a jury trial. The appeal concerns the admissibility of fresh evidence which, it is argued, might have led a reasonable jury to return a different verdict. The Crown does not oppose the granting of an extension of time to appeal and this application is granted. The Court considers the fresh evidence that Ms Cooper claims was not available at the time of the trial and which, it is argued, might have led to a different verdict. The evidence consists of a forensic linguistic evaluation of a transcript of a 111 call made by the hotel manager during the incident, as well as synchronised CCTV footage and audio from the 111 call. The Court concludes that the fresh evidence is not sufficiently cogent to warrant a new trial and the appeal is dismissed. The Court grants the extension of time to appeal and declines the application to adduce further evidence.

Orders