R v Cooper[2015] QDC 93

[2015] QDC  93

DISTRICT COURT OF QUEENSLAND

CRIMINAL JURISDICTION

JUDGE R.S. JONES

THE QUEEN   

v.

COOPER     

BRISBANE 

10.04 AM, THURSDAY, 23 APRIL 2015

EX TEMPORE ORDER

HIS HONOUR: After a trial lasting approximately two and a-half days, the jury returned a guilty verdict against the defendant in respect of one count of maintaining an unlawful sexual relationship and one count of rape. That occurred at about 1.30 pm on 22^nd April 2015. The matter was then listed for sentence at 3 pm that day and I should indicate that that verdict was taken after an application for a mistrial that was refused by me. In any event, at 3 pm, Mr Edwards, on behalf of the defendant, instead of proceeding with the sentence, made an application, in effect seeking that the sentence be adjourned to a date to be fixed and second that the defendant be granted bail pending the determination of his expected appeal against the conviction. The application to adjourn the sentence was not opposed, but the application for bail pending appeal was.

The background to the application was, as best as I can recall it, as follows. At about 3.40 pm on the 21^st of April, the jury requested that exhibit 1, being the record of interview of the complainant, be replayed and that exhibit B, the pre-recording of the complainant, also be replayed. As the combined total of those two discs was about two and a-quarter hours, the jury requested that that occur on the morning of the 22^nd and that they have a break between the playing of the two discs.

On the morning of the 22^nd, the record of the interview of the complainant was played, commencing at about 10.30 am and ending at about 11.40 am. Thereafter, the court adjourned on the assumption that when proceedings resumed the jury would then have the pre-recorded evidence of the complainant replayed. Upon the intended resumption of proceedings at about 12.05 pm, I was advised by the bailiff that the jury wanted some more time and after advising counsel of that, the court again adjourned in the absence of the jury at about 12:10pm.

Some 30 minutes later, that is, about an hour after the replaying of the record of interview had been completed, the court resumed in the absence of jury and, at that time Mr Edwards expressed concern about the delay in the jury viewing the pre-recorded evidence. I agreed with Mr Edwards’ concerns and after some discussion between the counsel, it was decided that the jury would be asked to come back into the courtroom and then have the pre-recorded evidence replayed to them.

Almost at the same time, and that occurred at about 12.40 pm. At about the same time, almost immediately after those discussions with counsel, the bailiff was advised and in turn advised me that the jury had already reached a verdict. Further discussion occurred between counsel and myself, wherein I expressed concerns about taking a verdict in circumstances where they had indicated that they wanted to see the replaying of the pre-recorded evidence but had not done so. Following those discussions, the jury was asked to return to the courtroom. That was at about 12.46 pm. When they returned, I said to them as follows – and this is a quote from the transcript at pages 4 and 5 of the proceedings on the 22^nd.

Thank you, ladies and gentlemen. Coincidentally with me speaking to the bailiff about you – about having you brought back into the courtroom, I was then advised that you had, in fact, reached a verdict. I am not going to take the verdict at this stage and the reason for that is this. Initially, it was indicated that you wanted to see both the record of interview and, of course, the pre-recorded evidence and you had seen the record of interview and I have no doubt that you were discussing what you had seen and heard in that record of interview, but then there was a concern about the passage of time between seeing that and seeing and hearing the pre-recording of the complainant’s evidence, because in the record of interview, of course, you were just seeing the complainant give her version of events, whereas in the pre-recording you would see – or you are seeing the complainant subject to cross-examination by Mr Edwards. My concern was that by reaching a verdict based solely on what you saw and heard in the record of interview without hearing and seeing the pre-recorded, where she was, in fact – her version of events was tested in cross-examination, that might work in serious prejudice against the defendant in respect of both counts and, accordingly, what I propose to do now that I am aware that you have, in fact, reached a verdict, is to discuss the matter further with counsel and see, firstly, whether it is necessary to take any further steps before taking the verdict and, if it is, then what those steps ought to be. But I trust you understand what my concerns are about only seeing one component of the complainant giving her evidence, or her version of events, if you like. Now, it might be that see the pre-record may have no impact on your conclusions, but none of us know whether that is, indeed, the case. But, as I say, I am concerned that without seeing both sides, if I could put it that way, that there would be serious prejudice worked against the defendant. So would you mind retiring for the moment so we can discuss – so I can discuss the matter further with counsel.

The jury was then sent out at about 12.50 pm. Because that was so close to the usual luncheon break, it was decided that the jury could have their lunch, which was already provided, and that court would resume at 1.30 pm. Upon resumption at 1.30, I advised counsel that I felt that there was no alternative other than to take the verdicts of the jury. At that time, Mr Edwards made his application for a mistrial and, as I have said, that was refused. I have not been taken to any express powers to grant the relief sought by Mr Edwards, but there was no opposition by Mr Wallis to me hearing the application and, therefore, I proposed to proceed on the basis that I do have the necessary power. Argument ended at about 3.40 pm and the defendant was remanded in custody until today.

I have already given the nature of the relief sought by the defendant. That relief was said to be warranted, given the particular circumstances of this case to which I have just referred and also having regard to the defendant’s conduct on bail and parole up to date. While not conceding that what I am about to say might be the only grounds of appeal, as I understood Mr Edwards’ submissions, the likely grounds would, at least, include one ground to the effect that the verdicts were inherently unsafe having regard to material inconsistencies in the complainant’s evidence and that, second, there was a miscarriage of justice in that the jury, having had the record of interview replayed, were not warned or given adequate directions of the type identified in the Queen v C [1999] QCA 246 at paragraphs 28 and 29, citing the Queen v Hibbins [1998] QCA 276. And in this context, I was also referred by Mr Edwards to the case of the Queen v S [2002] QCA 57.

As to the inconsistencies in the complainant’s evidence, in particular, those concerned with the extent and nature of the offending as described by the complainant to different preliminary complaint witnesses and the inconsistency in those versions in amongst themselves and also the inconsistencies in those versions with what she told the police in the record of interview and then subsequently in the pre-recorded evidence. Also those inconsistencies concerning the timing of the alleged threat to kill the complainant’s parents and those concerned with whether the offending occurred at school or when she was at preschool.

Personally, I did not find the first of those inconsistencies particularly persuasive, but the last were, in my view, significant as they were concerned with not only the timing of the offending, but also with the location and what the complainant would have been wearing at the time. That is, what uniform she would have had on, be it the school uniform or her kindergarten clothing, which she described as being to the effect that it was whatever she decided to wear on that day. Those inconsistencies were highlighted by Mr Edwards in his concluding address to the jury and, as far – at least, as far as I can remember, remarked on by me during my summing up.

It is obvious that because of the circumstances of this case, there was no opportunity to give the directions and/or the warnings of the type just identified above. Mr Edwards did not contend that any subsequent appeal would necessarily have strong prospects of success, but contended that they were, at the very least, arguable grounds of appeal. At this very preliminary stage, I am inclined to agree with that assessment.

As to the defendant’s conduct on bail and parole, on 24 December 1999, he was sentenced on his own plea of guilty for a number of sexual offences, including involving, as I understand, the complainant’s sister or, at least, her step-sister. The offending dealt with there included one count of maintaining an unlawful sexual relationship and there were other sexual offences. When released on parole, the defendant complied with all conditions. On 30 July 2010, the defendant was then dealt with in respect of a number of other sexual offences against the same complainant, including multiple counts of rape. The defendant was then sentenced to seven years’ imprisonment and a parole eligibility date was set for 30 January 2011. Since being on parole for those offences and on bail in respect of the offences in this case, the defendant has complied with all relevant conditions.

Mr Edwards submitted that there was little risk of flight in circumstances where the defendant had, firstly, complied with all of the initial parole orders and then, voluntarily appeared on 30 July 2010, knowing that he was almost certainly going to go back into prison for a significant period. And Mr Edwards also pointed then to the fact that he has, at all times, complied with his bail conditions regarding the subject offending. In such circumstances, Mr Edwards contended to the effect that it would be unjust to require the defendant to serve a period of custody when it may turn out that no actual term of custody was required to be served. That would be as a consequence of a successful appeal.

The application was opposed by the Crown. The application for bail was opposed by the Crown, not because there was an unacceptable risk of the defendant reoffending or attempting to interfere with witnesses or otherwise be a danger to the public, but because there was an unacceptable risk of the defendant later failing to appear or surrender himself into custody and that, otherwise, there were no special circumstances or exceptional circumstances warranting the defendant not being sentenced following guilty verdicts returned by the jury after trial. As I have already said, the appeal is an arguable one, but at this stage, those prospects cannot be considered to be any higher than that, a fact that Mr Edwards, at this stage, at least, seems prepared to accept. Prospects of appeal, of course, is not the decisive factor in my view.

Also, while the defendant’s compliance with parole and bail to date works strongly in his favour, given that he has been found guilty after a trial of two very serious offences, whilst in a position of trust and having regard to the very relevant criminal history, the defendant must be aware that he now faces a real risk of a further significant term of imprisonment. In circumstances where I was not provided with any material establishing what, if any, links or ties the defendant has to this jurisdiction – within this jurisdiction, be it by employment, assets or personal ties, I consider that there is an unacceptable risk of the defendant failing to appear or surrender himself into custody at a future time.

The Crown also referred me to the cases of Hanson v the Director of Public Prosecutions [2003] QCA 409 and the Queen v Fuller [2008] QCA 303. In Fuller, Justice Fraser on behalf of the Court of Appeal relevantly said:

In Hanson v DPP [2003] QCA 409, this Court confirmed that the principles applicable when considering an application for bail pending appeal are those expounded in the decision of the Full Court in Ex parte Maher (1986) 1 Qd R 303. The judgment of Justice Thomas in that decision was referred to with approval in the joint judgment in United Mexican States v Cabal (2001) 183 ALR 645 at 656. Maher establishes that while Sections 8.1 and 8.5 of the Bail Act 1980 confer jurisdiction on this Court to grant bail to convicted offenders wanting to appeal their conviction or sentence or both, the respect for a jury's verdict which underlines our system of criminal justice requires that a regularly obtained conviction should not be seen as a mere step in the process of appeal: the release on bail of an appellant sentenced to a reasonably long term of imprisonment should occur only in exceptional circumstances: see Hanson at 25.

The discussion then goes on to deal with a number of other matters, but having regard to my finding concerning unacceptable risk, it is not necessary to go on further, other than to deal with an observation made by Mr Edwards to the effect that that discussion was in the context of a regularly obtained conviction. It is, in my view, true that the circumstances of this case are unusual, if not highly unusual. However, in my view, what occurred does not amount to or constitute an irregularly obtained conviction. The Court of Appeal may decide otherwise, but in my view, at this stage, it could not be characterised in that way and, accordingly, I do not consider that there are any exceptional circumstances warranting the granting of bail. For those reasons, the application is refused.

...

HIS HONOUR: It was pointed out at the conclusion of my reasons that Mr Edwards, in fact, contended that the prospects were strong rather than merely arguable. For the sake of completeness, I just will place on the record that that does not alter my position.

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