Cooper v. The Queen

Lower Court Judgment

5/12/2011 Supreme Court of New South Wales (Court of Criminal Appeal) (Beazley JA, Hidden J, R A Hulme J)

[2011] NSWCCA 258

Catchwords

Criminal law — Homicide — Appeal against conviction — Applicant convicted of murder — Applicant originally stood trial with co-accused — Co-accused acquitted of the murder at separate trial — Co-accused subsequently gave evidence at applicant's trial — Co-accused gave evidence that applicant assaulted deceased with bat and axe — Evidence was adduced that suggested deceased threatened applicant's daughter and assaulted applicant — Another witness "C" gave evidence that co-accused admitted hitting deceased with an axe — Crown presented case as applicant solely responsible for the death or alternatively guilty for participation in a joint criminal enterprise with co-accused — Trial judge included joint criminal enterprise in written directions and further written directions to jury — Culpability for joint criminal enterprise was said to be founded on C's evidence coupled with a rejection of self-defence — Court of Criminal Appeal accepted that joint criminal enterprise was not supported by the evidence but applied the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) — Whether the error upheld in applicant's appeal, in which joint criminal enterprise liability was left to the jury when it was not open on the evidence, so fundamental as to preclude application of the proviso — Whether the Court erred in holding that there was no error or inadequacy in the trial judge's directions on joint criminal enterprise, self-defence (or defence of another) and the co-accused's confession to witness "C" — Whether the Court of Criminal Appeal erred in holding that defence counsel's failure to adduce relevant evidence in relation to the deceased's mental condition did not occasion a miscarriage of justice.

Short Particulars