Cooper v The Queen [2012] HCATrans 120 (11 May 2012)

Last Updated: 12 June 2018

[2012] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S423 of 2011

B e t w e e n -

BRADLEY DOUGLAS COOPER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 2012, AT 12.48 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear with MR S.J. BUCHEN for the applicant. (instructed by Legal Aid (NSW))

MR L.A. BABB, SC: If the Court, pleases, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J: You are for the respondent are you, Mr Babb?

MR BABB: I am the respondent, your Honour.

HAYNE J: You are the respondent?

MR BABB: Do you wish to hear from me first?

HAYNE J: We may be assisted by hearing from you first, Mr Babb, yes.

MR BABB: Well, your Honours, that is a strong indication.

HAYNE J: No. You tell us why leave should not go, Mr Babb.

MR BABB: Your Honour, in this case we know there was an error and finding of that error is a precondition for the application of the proviso. Now, the error established, that is leaving an alternative basis of liability to the jury which was not available on the evidence and, in my submission, does not preclude the operation of the proviso in this case. The applicant’s point that it was a serious error was accepted by the Court of Criminal Appeal who then undertook the process of determining whether the proviso should be applied in this case.

HAYNE J: Do their Honours find any facts as proof beyond reasonable doubt?

MR BABB: Not in terms, your Honour. They do not specify that they find that the evidence would have proved the case beyond reasonable doubt in terms, but when one looks at the way they analyse the proviso, they firstly set out the test as set out in Weiss.

HAYNE J: I am sure they do, but do you say that this was a case in which the proviso was properly applied?

MR BABB: I do, your Honour, yes. What I say, it is clear that what has happened here is that they have considered that it is unlikely that C’s evidence was correct and looked at the objective evidence in - - -

KIEFEL J: That is to undertake an assessment of the veracity of her evidence. How is the court in a position to do that?

MR BABB: Because they do it, your Honour Justice Kiefel, by looking at the objective evidence that relates to that portion of C’s evidence that relates to the confession that she says she got. Now, the objective features - - -

HAYNE J: They get to a conclusion about likelihood, something is unlikely.

MR BABB: Yes.

HAYNE J: How does that fit?

MR BABB: It does revolve around unlikelihood. Earlier in the judgment they also talk about, this is at paragraph 205, that:

there was cogent independent evidence indicating that C’s evidence was unlikely to be true.

At 206:

Although the jury was not bound to accept Ms Quinn’s evidence, it is unlikely that they would not accept her evidence if they rejected C’s evidence.

So, your Honours, in terms of this case and the state of the evidence, when one looks at it, you had direct evidence from Ms Quinn as to all the blows being struck by the applicant, you had no evidence from the applicant, and I could take your Honours through the strength of the other evidence that supports Ms Quinn’s evidence. In my submission, what the Court of Criminal Appeal were doing clearly when they set out the Weiss test immediately – or writing the section in relation to the proviso, was determining that they found the case against the applicant proved beyond reasonable doubt, but I accept, your Honours, that they do not say that in terms in the judgment.

Your Honours, the strength of the case in this particular case reflected back on the evidence of C and it was tied up with error in the way that the case was put. If I could put it in this way. Inherent in the finding that it was unlikely that C’s evidence was correct and that it was likely that the jury would then accept Ms Quinn, is the finding that the misdirection had little impact because the joint criminal enterprise direction depended solely upon C’s evidence. In that way, your Honours, those findings in relation to C’s evidence meant that there was no substantial miscarriage of justice that actually occurred in this case. Your Honours, would it assist if I took you through the other evidence that I would point to as showing that this was a strong case against the applicant?

KIEFEL J: As you wish.

MR BABB: Well, your Honours, just briefly, the deceased was much smaller than the applicant and the Court took that into account in that he was a larger man and it may have caused the jury to consider that it was unlikely that the deceased has overpowered the applicant as the alleged admission intimated. He had not observable injuries to him except for bruising to the knuckles, which was completely consistent with the unchallenged evidence of J and Ms Quinn that the applicant had punched him a number of times to the face. The applicant initiated the violent conduct, as shown by that unchallenged evidence.

He had hostility towards the deceased and had told Ms McCann well before this time that he would get the deceased, it might take him years, but he would be sorry. He made an admission to C that someone had come around to the house and threatened the kids and that he would put a stop to it. The applicant was the one who had disposed of the body in bushland and he pleaded guilty to that disposal with intent to pervert the course of justice, and he threatened all those involved in the disposal of the body that he would kill them if they did not assist and if they did not keep quiet.

Despite the fact that the forensic pathologist spoke about it being possible that the flat side of an axe could be a blunt surface, the probability was that a baseball bat was used because we know that the evidence of C was that two handles, one a baseball bat and one an axe handle, were visible from the hessian bag which the applicant told her had DNA on it and was taken by the applicant to the tip and burned. Your Honours, in my submission, what the court did was determine that their case was proved beyond reasonable doubt and considered the case in the context of the error in the case and correctly applied the proviso.

Briefly, in relation to the third ground raised by the applicant, the Court of Criminal Appeal was correct, in my submission, that the adducing of additional evidence of the deceased’s mental condition and the failure to cross-examine the grandmother would not have furthered the defence case significantly. There was evidence from Ms Quinn that the deceased had become disoriented, made paranoid and irrational comments and there was other evidence led, your Honours, as to the violent and irrational conduct of the deceased when he had been drinking or taking drugs. That is at page 218 of the application book, summarised by the Court of Criminal Appeal at paragraphs 91 and following, your Honours.

So in addition to Ms Quin there were the witnesses, Adrian Selmes and Darren Harvey who, in terms, spoke about the deceased using drugs, becoming violent and irrational when he did. Mr Selmes said that when he used drugs he:

would “become agitated and aggressive” . . . have “mood swings” in which he would “go from being a quiet and calm person to being a more agitated person quickly”.

Mr Harvey gave evidence of an incident where:

the deceased had a screwdriver and made a stabbing action with it towards him.

He indicated that at the time:

he considered that the deceased’s behaviour was “pretty paranoid” and “pretty irrational” –

In that context, your Honours, it is submitted that there was clear evidence going to those points and even if the evidence that could also have been led would have gone towards him on previous occasions acting strangely and aggressively, that was not a matter in dispute and it did not assist the central issue in the trial of whether the applicant or Ms Quinn had struck the deceased with ah blunt instrument.

The fourth ground of appeal, your Honours, the incontrovertibility, in my submission, it certainly does not come up in any way in relation to the primary case. They were completely consistent, the acquittal of Ms Quinn and the conviction of the applicant, and in relation to the question of joint criminal enterprise, as the Court of Criminal Appeal made clear, that should never have been put to the jury and that situation has moved on and the point is now moot and it is a unique case and that should not be the ground of special leave on that point. They are my submissions. Thank you.

HAYNE J: Thank you, Mr Babb. Mr Game, we need not trouble you on the substance of the matter. There will be a grant of special leave in this matter. How long will an appeal take?

MR GAME: It will be a one-day case I would say, your Honour.

HAYNE J: Even if the respondent seeks to maintain the application of the proviso by an examination of the evidence?

MR GAME: It would take longer then. But could I take your Honours to the grounds so that I could – perhaps that might assist in working out how long it will take.

HAYNE J: Yes.

MR GAME: Ground 1 is the proviso. Ground 2 picks up the Court saying that there was not other error in these very lengthy directions on joint criminal enterprise, which - - -

KIEFEL J: That alone would seem to take some time.

MR GAME: Yes. Then ground 3, if you go back to pages 252 and 253 you can see the kernel of – I am sorry to take you through this.

HAYNE J: No.

MR GAME: But if you go back to 252 to 253, if you contrast what is on paragraph 202 with what is in 204, now, we say that it does not matter for the moment, but we say that is the wrong test in 204 and it is an inaccurate précis of what your Honour Justice Hayne said in TKWJ, but there is a question here about what the test is. Justice McHugh spoke about (a) was there a fair trial and (b) is there a reasonable possibility the verdict would have been different? So on this question about the – we established that the evidence should have been led, so that issue itself is going to take a little time. Then your Honours would have to decide whether or we get leave on the fourth ground on 273 and the way that arises is this. You can see it in our written submissions in-chief.

HAYNE J: Well, would not this re-agitate what was decided in - - -

MR GAME: Likiardopoulos?

HAYNE J: No. Osland.

MR GAME: Yes, your Honour.

HAYNE J: You would have to have us depart from the majority decision in Osland, would you not?

MR GAME: No, your Honour, this is different for this reason. What happens in this case is this. Quinn is put to trial and acquitted and she is put to trial on the basis of C’s admission. Quinn is called, C is called, C is not challenged on the admission which is further – then Quinn is relied on in principal case, then alternative case is – so Quinn relied on, reject C, then alternative case is, if you do not accept everything Quinn says, then you will

accept the confession beyond reasonable doubt in one respect, namely, that the assault took place and then you will rejected beyond reasonable doubt in respect of the self-defence part. So by the time you get to the end of this case the Crown has changed its position a number of times.

HAYNE J: So you say it is a Rogers Case?

MR GAME: That is right, yes. So it was not dealt with properly by the – if all of those things are argued, then it is a two-day case, your Honour, one and a half to a two-day case.

HAYNE J: Mr Babb, is there anything separate you would wish to say about a grant on all grounds?

MR BABB: Yes. My submission is that if your Honours are going to grant leave, it should be on the proviso ground only, that the fourth point has moved on in light of the finding that it should never have been put to the jury anyway and that the test in relation to the third ground was put in terms of TKWJ and that your Honours should not grant leave in relation to that and should limit it grounds - - -

HAYNE J: Let me just see if I understand that because I am not sure that I do. You say ground 4 is swallowed up by the fact that the Court of Criminal Appeal has held, and you will not seek to challenge, that joint criminal enterprise should not have gone to the jury, is that right?

MR BABB: Well, yes.

HAYNE J: You would accept on the hearing of the appeal in this matter that joint criminal enterprise should not have been left?

MR BABB: Yes, your Honour.

HAYNE J: Then you say, as to 3, in any event, you would say the Court of Criminal Appeal did not err, but there is some debate about that, I would have thought. Then 1 and 2 march together, do they not, about the proviso?

MR BABB: Well, they do to an extent, your Honour, although 2 really springs out of what was really a technical decision of the Court of Criminal Appeal that the directions given were, in a sense, okay but for the important rider that joint criminal – there was not evidence to sustain the joint criminal enterprise point. But, I mean, 2 really incorporates three different special leave questions, in my submission, and really the significant ground is 1.

HAYNE J: Yes. Well, Mr Game, as at present advised we are minded not to grant you leave on ground 4 in light of what has been said, that it is accepted that joint criminal enterprise should not have been left.

MR GAME: Could I just say this, your Honour. Does that mean I do not have address on 2 and 3?

HAYNE J: That is right.

MR GAME: Now, in respect of 4, if your Honours just have a look at pages 128 and 129 of the application book, and it may be that the concession takes this away, but can I just explain how it seems that it might still have some life? If you look at 128, line 45, at that moment the Crown is asking for the admission to be rejected. At 129, line 36, now there are asking for the admission to be – so what I am saying is, it is there in these directions, so it is kind of hard when you dig into the significance off the directions to get away from the abuse aspect of it.

HAYNE J: Maybe. There will be a grant of special leave in this matter confined to grounds 1, 2 and 3 of the draft notice of appeal. The attention of the parties is drawn to the directions that are to be given for filing of submissions. The case will be listed on the assumption that it is a one and a half to two-day case.

MR BABB: May it please the Court.

AT 1.09 PM THE MATTER WAS CONCLUDED