Cooper v The Queen [2012] HCA 50

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

BRADLEY DOUGLAS COOPER APPELLANT

AND

THE QUEEN RESPONDENT

Cooper v The Queen [2012] HCA 50 14 November 2012 S135/2012

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 December 2011 and, in its place, order that:

(a) the appeal to that Court be allowed;

(b) the appellant's conviction be quashed; and

(c) a new trial be had.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with S J Buchen for the appellant (instructed by Legal Aid (NSW))

L A Babb SC with J H Pickering for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Cooper v The Queen

Criminal law – Appeal – Misdirection – Application of "proviso" – Appellant convicted of murder – Prosecution alleged at trial that either appellant hit and killed deceased or alternatively another person hit and killed deceased pursuant to joint criminal enterprise with appellant – Jury instructed to consider case of joint criminal enterprise as alternative to primary case that appellant hit and killed deceased – Court of Criminal Appeal held no evidence of joint criminal enterprise – Whether "no substantial miscarriage of justice" occurred.

Words and phrases – "proviso", "substantial miscarriage of justice".

Criminal Appeal Act 1912 (NSW), s 6(1).

FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ. At the appellant's trial in the Supreme Court of New South Wales for the murder of Dale Kevin Muldoon, Julie Anne Quinn gave evidence that she saw the appellant beat the deceased to death by hitting him with his fists, a child's baseball bat and a small axe. The appellant's niece, known in the trial as "C", gave evidence that Ms Quinn had told her that it was she (Ms Quinn) who had struck the deceased with an axe and that she had done so because the deceased was hitting the appellant. At the appellant's trial, the prosecution's primary case was that the appellant alone had hit and killed the deceased. But, as an alternative case, the prosecution submitted that even if Ms Quinn had struck the fatal blow or blows, the appellant was guilty of murder because Ms Quinn had been part of a joint criminal enterprise with the appellant. The trial judge instructed the jury that, if they considered that the prosecution did not establish that the appellant was solely responsible for the fatal injuries inflicted on the deceased, they should then consider whether the appellant had used the baseball bat, and Ms Quinn the axe, "pursuant to an agreement to cause the death of the deceased with the intention of killing him or inflicting grievous bodily harm upon him". The appellant was convicted. His appeal against conviction was dismissed by the Court of Criminal Appeal of New South Wales (Beazley JA, Hidden and R A Hulme JJ). The Court of Criminal Appeal held (and it is not now disputed) that there was no evidence at trial which would have permitted the jury to conclude that Ms Quinn and the appellant had engaged in any joint criminal enterprise to kill or inflict grievous bodily harm on the deceased. It followed, so the Court of Criminal Appeal held, that the trial judge (Buddin J) was wrong to direct the jury that, if not persuaded beyond reasonable doubt that the appellant had struck the fatal blow or blows, the jury might nonetheless convict the appellant of murder if satisfied that the appellant and Ms Quinn had been engaged in a joint criminal enterprise to kill or do grievous bodily harm to the deceased. Although there had thus been a wrong decision of a question of law, the Court of Criminal Appeal concluded that no substantial miscarriage of justice had actually occurred and that the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applied. By special leave the appellant appeals to this Court. He submits that the Court of Criminal Appeal was wrong to apply the proviso. That submission should be accepted. The appeal must be allowed, the appellant's conviction quashed and a new trial had. In these circumstances, it is neither necessary nor appropriate to consider the appellant's other submissions about the adequacy of certain aspects of the trial judge's directions or about whether trial counsel's not having adduced evidence about the deceased's mental condition occasioned a miscarriage of justice. It is necessary to say something further about the facts of the matter and the course of proceedings against the appellant. The facts and proceedings below On 5 May 2003, the mother of the deceased told police that her son was missing. She said that she had not seen or heard from him since 22 March 2003. A New South Wales State election was held on that day and the deceased's mother told police that the deceased had gone to vote but had not returned. On 18 June 2003, police arrested the appellant, Ms Quinn and Mr Kevin Denne. Mr Denne told police that he had been present when the appellant took the body of the deceased to the Ben Bullen State Forest and buried it. Mr Denne took police to the State Forest and pointed out where the deceased's body had been buried. In September 2004, the appellant and Ms Quinn were jointly indicted on one count of murder and one count of disposing of the deceased's body with intent to pervert the course of justice. The appellant pleaded not guilty to murder but guilty to the count about disposing of the body; Ms Quinn pleaded not guilty to both counts. An order was made that the two accused be tried separately. Ms Quinn's trial proceeded first. She was acquitted of murder but the jury could not agree with respect to the second count. A "no bill" was subsequently entered in respect of the second count. In May and June 2005 the appellant was tried on the charge of murder. At his trial, expert evidence was led that post mortem examination of the deceased showed that he had four wounds to the head. At least two of those wounds were associated with skull fractures that the forensic pathologist described as requiring "a lot of force" to inflict. Some but not all of the wounds could have been caused by a blunt object like a baseball bat or the flat side of an axe; one of the wounds could have been caused by the back of an axe. In this Court, both the appellant and the respondent accepted that the evidence did not permit the jury to conclude beyond reasonable doubt that only one weapon was used. The respondent submitted that the evidence showed that two weapons were used. The prosecution alleged that these wounds were inflicted on the deceased on 22 March 2003 at the house in Lithgow occupied by the appellant and one of his children with Ms Quinn and one of her children. The appellant did not dispute these matters at trial. He denied that he had inflicted the wounds. As has already been noted, Ms Quinn gave evidence at the trial. She said that the appellant had struck the deceased several times first with his fists, then with a child's baseball bat and finally with a small axe. Unsworn evidence was also adduced from Ms Quinn's then eleven year old son who described the appellant punching the deceased. Ms Quinn said that she took her son into a bedroom after the appellant punched the deceased. Mr Denne and C each gave evidence describing his or her part in the appellant's burying the body in the State Forest on the day after the deceased was killed. Mr Denne also gave evidence that after the body had been buried the appellant had dropped a hessian bag into a fire at a rubbish tip. (This bag was said to have contained the murder weapons.) When cross‑examined by trial counsel for the appellant, C accepted that after she had driven the appellant and Mr Denne to the State Forest with the body of the deceased in the boot, she had returned to the house of the appellant and Ms Quinn. At the house she had a conversation with Ms Quinn about whose body had been taken to the State Forest and about what had happened. C accepted that Ms Quinn had told her in that conversation that she had struck the deceased in the face with an axe because he was hitting the appellant. Because Ms Quinn was available to give evidence at the trial and the asserted facts were fresh in her memory when she made the representation, C's evidence of the out of court statement by Ms Quinn was admissible as evidence of the truth of the assertions made in the statement. Ms Quinn denied that she had made the statement that C attributed to her. Ms Quinn denied that she had struck the deceased and her evidence was that the appellant (and only the appellant) had struck the deceased. The appellant did not give evidence. The Court of Criminal Appeal held that the trial judge was wrong to direct the jury that joint criminal enterprise was a possible path to the appellant's conviction. That is, the Court decided that there had been a "wrong decision of [a] question of law". But the Court concluded that there was "no substantial miscarriage of justice within the meaning of the proviso". The proviso It is now well established, and it must again be emphasised, that, as this Court held in Weiss v The Queen, there are three propositions which are fundamental to the application of the proviso to the common form criminal appeal statute. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Second, the task is objective, and is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial. Third, the standard of proof of criminal guilt is proof beyond reasonable doubt. Performance of the appellate court's task requires the court to undertake its own independent assessment of the evidence and it further requires the court to determine: "whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty". And although "[n]o single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given", it is necessary to bear at the forefront of consideration in this case that, as was pointed out in Weiss: "It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty." (emphasis added) The Court of Criminal Appeal In this case, Beazley JA (who gave the principal reasons of the Court of Criminal Appeal) correctly identified the applicable principles. The reasons examined the evidence that had been given at trial. Beazley JA referred to the "unlikelihood of C's evidence being correct" but nowhere expressly identified what it was about that evidence that was "unlikely" to be correct. It may be that it can be inferred from the comparison undertaken in the reasons between an account of events which had the deceased hit in the face with an axe and the post mortem findings of the forensic pathologist that the unlikelihood or improbability that was being identified concerned the content of what C testified Ms Quinn had told her, rather than whether a conversation to the effect described had occurred. But whether or not this is so need not be examined. What is presently important is that the Court of Criminal Appeal did not conclude that it was satisfied beyond reasonable doubt that either Ms Quinn did not say the words attributed to her or the description of events she gave to C was false. Rather, the point seen as determinative of the proviso appears to have been that "when the whole of the evidence is considered, the case that the appellant at least struck the blow that caused [one of the most serious injuries to the deceased] is such, that ... there has been no substantial miscarriage of justice within the meaning of the proviso to s 6(1)". This reasoning does not apply the principles set out in Weiss. Applying the proviso in this case As the reasons of Beazley JA recorded, the prosecution had submitted in the Court of Criminal Appeal that the evidence "suggested" that the injury in question had been caused by a baseball bat (emphasis added). Beazley JA said that "[t]he probability was ... that a baseball bat was used" (emphasis added). But neither the submission nor the conclusion asserted satisfaction beyond reasonable doubt. The appellant could not be found guilty of murder unless it was proved beyond reasonable doubt that he had struck the fatal blow or blows. In this Court, the respondent accepted that the jury could not have concluded on the evidence at trial that only one implement had been used to cause the deceased's injuries. And the respondent did not dispute in argument in this Court that the record of the evidence at trial did not permit an appellate court to conclude which blow or blows inflicted on the deceased had caused his fatal injuries. Ms Quinn's evidence, if believed, could found a conclusion to the requisite standard that the appellant had struck all the blows. If that were so, it would not matter which implement caused death. If, however, there was a reasonable possibility that Ms Quinn had struck the deceased with an axe (as C's evidence suggested) the appellant was not guilty of murder unless blows he struck were the cause of death. Confined as the Court of Criminal Appeal necessarily was to the record of proceedings at the trial, it was not open to it to decide beyond reasonable doubt that either Ms Quinn did not say what C had reported or that what Ms Quinn was reported to have said was false. Without taking at least one of those steps, the Court of Criminal Appeal could not be persuaded beyond reasonable doubt that the appellant alone had struck all the blows inflicted on the deceased. Unless satisfied beyond reasonable doubt that the appellant alone had hit the deceased, the Court of Criminal Appeal could not decide that he was guilty of murder. Unless satisfied beyond reasonable doubt that the appellant was guilty of murder, the Court of Criminal Appeal could not be satisfied that no substantial miscarriage of justice had actually occurred. In this Court, the respondent sought to support the conclusion reached by the Court of Criminal Appeal by submitting that, if the jury applied the directions given at trial about what amounted to a joint criminal enterprise, the jury would necessarily have rejected that aspect of the prosecution's argument at trial. It followed, so the respondent submitted, that the jury must have decided the case by deciding that only the appellant had hit the deceased and that no substantial miscarriage of justice had actually occurred. This submission should not be accepted. It depended upon relegating the prosecution's alternative case at trial to what the respondent described in this Court as a "faint suggestion ... cancelled out in the summing up by the trial judge's direction" about joint criminal enterprise. But the trial judge did not treat the prosecution's alternative case as some "faint suggestion". Indeed, the trial judge expressly rejected the submission by trial counsel for the appellant that joint criminal enterprise should not be left to the jury. In his charge to the jury the trial judge described the prosecution's alternative case as inviting the jury to accept that Ms Quinn had said what C described, to accept that Ms Quinn was right to say that she had hit the deceased with an axe, but to reject that Ms Quinn did so in defence of the appellant. The trial judge instructed the jury that if it was a reasonable possibility that Ms Quinn made the admission attributed to her by C and that the admission was a truthful and reliable account of events, joint criminal enterprise was not established because, on those hypotheses, there was a reasonable possibility that Ms Quinn had been acting in defence of another. But the jury were not told that the prosecution's alternative case (dependent on accepting only part of what Ms Quinn was alleged to have said) was not open. And it cannot now be demonstrated that the jury must have rejected this alternative case. Demonstration of that conclusion depends upon the jury having rejected what the judge's instructions had identified as an available view of the facts. Orders The appeal must be allowed. The orders of the Court of Criminal Appeal should be set aside and in their place there be orders that: (a) the appeal to that Court is allowed; (b) the appellant's conviction is quashed; and (c) a new trial be had.