Cooper v The Queen - [2018] NZCA 159

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA5/2018
[2018] NZCA 159

BETWEEN	ROBERT BRITT COOPER Appellant
AND	THE QUEEN Respondent

Hearing:	2 May 2018
Court:	Kós P, Brewer and Gendall JJ
Counsel:	J W Watson for Appellant E J Hoskin for Respondent
Judgment:	18 May 2018 at 3 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

On 20 December 2016, Judge R McIlraith convicted Mr Cooper of three charges following his judge alone trial:[1]
(a)by deception and without claim of right, Mr Cooper induced Marion Brock to deliver over a document, namely a bank document capable of being used to derive a pecuniary advantage, valued at $70,000;[2]
(b)with intent to obtain pecuniary advantage, dishonestly and without claim of right took a document, namely a bank document;[3] and
(c)while a protection order was in force against him, engaged in behaviour which amounted to psychological abuse of the protected person, namely without authority withdrew $70,000 from a family-trust
[1]R v Cooper [2016] NZDC 25508.
[2]Crimes Act 1961, ss 240(1)(c) and 241(a).
[3]Section 228(1)(a).
[4]Domestic Violence Act 1995, ss 19(1)(d), 49(1)(b) and 49(3).
term-deposit account.[4]
On 30 June 2017, the Judge sentenced Mr Cooper to nine months’ home detention and made a reparation order for $70,000.[5]
[5]R v Cooper [2017] NZDC 14241.
Mr Cooper now appeals his convictions and, if unsuccessful, the making of the reparation order.

Approach on appeal

Mr Cooper’s appeal lies with this Court because he originally elected trial by jury before applying for a judge alone trial.[6] The appeal is by way of rehearing. To succeed in his conviction appeal, Mr Cooper must show that a miscarriage of justice has occurred.[7] This means Mr Cooper must first establish an error. Second, he must establish there is a real risk the error may have affected the outcome of the trial or rendered it unfair or a nullity.[8]
[6]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [19].
[7]Criminal Procedure Act 2011, s 232(2)(b).
[8]Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [23]–[24].
To succeed in his appeal against the making of the reparation order, Mr Cooper must establish there is an error in the sentence, and that a different sentence should be imposed.[9]

Background

[9]Criminal Procedure Act, s 250.

Mr Cooper and his wife were estranged. They attended mediation to try to resolve their relationship property matters. An agreement in principle was reached on various matters but there was no binding settlement. However, in expectation of a final settlement being agreed in a timely way, both Mr and Mrs Cooper signed a single bank form authorising the withdrawal of $70,000 from their family-trust term-deposit account. It was agreed that this signed form would be held by Mr Cooper’s solicitor, Mr Dodds, pending final agreement.
Final agreement was not reached. On 3 October 2014, Mr Cooper went to…

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 [2018] NZCA 159
Case: [2018] NZCA 159
Decision Date: 18 May 2018 at 3 pm

CaseChat Overview and Summary

Robert Cooper appeals against his convictions and the reparation order made against him following his conviction for obtaining by deception, taking a document dishonestly, and breaching a protection order. Cooper and his wife were estranged, and had been in mediation to resolve their property matters. They had reached an agreement in principle but had not signed a final settlement. They had, however, signed a single bank form authorising the withdrawal of $70,000 from their family-trust term-deposit account. Cooper went to his solicitor's office and removed the signed withdrawal form from his file, without telling the legal executive there that he had done so. He presented the form at the bank and withdrew the money, thereby breaking the term deposit. His wife discovered this when she checked their bank accounts online. Cooper appeals on the basis that the Judge should have found that his communications with the legal executive were privileged and therefore inadmissible, and that he had an honest belief that the money in the family-trust term-deposit account was his own. He further appeals on the basis that there was no evidence that he had caused his wife psychological impact in breach of the protection order. The Court finds that Cooper's communications with the legal executive were not privileged, and that the Judge was entitled to find that Cooper did not have an honest belief that the money in the family-trust term-deposit account was his own. The Court also finds that the definition of psychological abuse in the Domestic Violence Act 1995 is concerned with the exertion of control by the perpetrator rather than the psychological impact upon the protected person. Cooper's appeal against his conviction and sentence is dismissed.

Orders