R v Cooper CA99/06 [2006] NZCA 430 (19 July 2006)

Last Updated: 27 January 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA99/06

THE QUEEN

v

BRIAN KENNETH COOPER

Hearing: 17 July 2006

Court: Glazebrook, Chisholm and Wild JJ Counsel: A R Laurenson for Appellant

A Markham for Crown

Judgment: 19 July 2006

_{JUDGMENT OF THE COURT}

A The appeal is allowed, the convictions are quashed and a retrial is

_ordered.

R V COOPER CA CA99/06 19 July 2006

B Order prohibiting publication of the judgment and any part of the proceedings (except the result) in news media or on Internet or other publicly available database until final disposition of trial. Publication in

_{Law Report or Law Digest permitted.}

REASONS OF THE COURT

_{(Given by Glazebrook J)}

Introduction

[1] Mr Cooper was convicted after a jury trial in the District Court of one count of sexual violation by unlawful sexual connection and one of indecent assault. He appeals against that conviction on the ground that there was a misdirection in the Judge’s summing up. The Crown concedes that there was a misdirection and does not seek to invoke the proviso. It seeks a retrial. Mr Laurenson, on behalf of Mr Cooper, submits that the credibility of the complainant has been so damaged that a retrial should not be ordered.

Background

[2] The complainant and a friend went to Mr Cooper’s house for some drinks. According to the complainant’s statement to the police, Mr Cooper invited her into his bedroom where he hugged and kissed her without consent. She then left the room. She told police that later Mr Cooper invited her again into his bedroom and offered her some cannabis. She accepted and smoked most of the joint. She then lay down on the bed. Mr Cooper allegedly touched and kissed her breasts, slid his hand inside her pants and digitally penetrated her. The complainant said that she left the room in distress and told her friend they had to leave, a short time later telling her friend what had happened. She also complained to a local police officer she encountered while walking home.

[3] Mr Cooper did not give evidence at trial but in his video interview he alleged that the complainant called him into his bedroom a number of times and each time became more amorous. He agreed that on the last occasion he touched her breasts and penetrated her vagina with his finger but said that she wanted this to happen.

[4] At trial the complainant gave evidence about one visit to the bedroom only and denied going into the bedroom on any other occasion. She was not cross-examined about her inconsistent police statement where she said she went into the bedroom twice. Nor were key aspects of Mr Cooper’s version of events put to her - ie a number of visits to the bedroom with increasing “amorousness” initiated by her.

[5] We note that the complainant in her evidence at trial also initially said that she had not been back to Mr Cooper’s house after the incident, admitting eventually that she had been back on at least two occasions.

[6] Defence counsel closed to the jury at trial on the basis that the complainant had lied in saying that she only went to the bedroom once and that she had also lied about sexual activity in the bedroom prior to the second incident. The trial judge, Judge Bidois, after closing, asked counsel to identify the evidential foundation for that submission which counsel was unable to do. The Judge therefore summed up on the basis that there was no evidence to support this allegation. It was only after the summing up that counsel pointed to the relevant passages in Mr Cooper’s video interview. The Judge, however, declined to redirect the jury on the grounds that the specifics of Mr Cooper’s version had not been put to the complainant.

Submissions

[7] The Crown accepts that the Judge should have redirected the jury. It is also accepted by the Crown that the failure to do so was material in the sense that any prior consensual activity was relevant both to the complainant’s credibility and to Mr Cooper’s honest and reasonable belief in consent at the time of the second incident.

[8] Mr Laurenson submits that the complainant’s credibility has been so damaged that Mr Cooper should not be required to undergo a new trial. Mr Laurenson points out that the evidence about the complainant not having gone back to Mr Cooper’s house after the incident was shown to have been incorrect. Mr Laurenson submits that this, coupled with the fact that she denied at trial going into the bedroom more than once, was a clear indication that the complainant was attempting to minimise her participation and that she was not telling the truth.

[9] The Crown submits that, despite problems with the complainant’s evidence, there is still evidence upon which a properly directed jury could convict. In its submission, it is not an inevitable inference from the inconsistency between the complainant’s police statement and her evidence at trial that she lied about having gone into the bedroom on another occasion. As Judge Bidois said, she may have made a mistake in her original statement or she may have completely forgotten about the first incident given the passage of time and the likely focus on the more serious event. In addition, even if there may have been more than one visit to the bedroom, it does not necessarily follow that the admitted sexual activity on the second occasion was consensual. Any issues of credibility should, in the Crown’s submission, be for a jury to assess.

Discussion

[10] We agree that the Judge was wrong to refuse to redirect the jury as the question of prior consensual activity was, as the Crown concedes, obviously relevant both to the complainant’s credibility and to whether Mr Cooper had a reasonable belief in consent. The convictions must therefore be quashed.

[11] As to the question of a retrial, we accept the Crown submission that the inconsistency between the complainant’s police statement and her evidence in court as to how often she went into Mr Cooper’s bedroom is explicable on grounds other than that she lied. We understand that there were tactical reasons why the complainant’s prior inconsistent statement was not put to her but we cannot be expected to draw an adverse inference on this point without having heard the complainant’s explanation.

[12] We also accept the Crown submission that, even if the complainant did go to the bedroom more than once, this does not necessarily mean that the sexual activity was consensual on the second occasion or that Mr Cooper could reasonably have held the belief that it was.

[13] This means that we accept the Crown submission that there is evidence upon which a properly directed jury could convict. It is thus appropriate for us to order a retrial.

Result

[14] For the above reasons, we allow the appeal, quash the convictions and order a retrial.

Solicitors:

Govett Quilliam, New Plymouth for Appellant

Crown Law Office, Wellington