AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 18 October 2002

R v Cooper

[2002] NSWCCA 428

HomicideTheft & property
EXAMINATION OF EVIDENCE

Citation: Cooper v R [2002] NSWCCA 428
Court: NSW Court of Criminal Appeal
Date: 18 October 2002
Judge(s): Giles JA; Bell J; Buddin J

Background

The appellant was convicted in the District Court of stealing a motor vehicle and manslaughter, and was sentenced to seven years imprisonment with a five-year non-parole period. The charges arose from a tragic incident on 4 December 2000, when a BMW was taken from a street in Cabramatta while a two-year-old child was asleep in the back seat. The child was later found unresponsive in the parked car and died from hyperthermia.

The Crown alleged the appellant stole the car from Hill Street and, on discovering the child inside, abandoned the vehicle in Grace Avenue approximately 900 metres away with the doors and windows closed in hot conditions. The appellant denied stealing the car from Hill Street. He said he had entered the car in Grace Avenue intending to steal it but left when he saw the child.

Forensic evidence established the appellant had been in the car at some point during the afternoon. The key factual dispute was whether the Crown had proved beyond reasonable doubt that he was the person who had taken it from Hill Street in the first place.

  • Whether the jury's verdicts were unreasonable, or could not be supported on the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912
  • Whether the evidence was sufficient to establish beyond reasonable doubt that the appellant stole the car from Hill Street
  • Whether disbelief of the appellant's account could constitute positive proof of the Crown's competing version of events

Decision

The Court of Criminal Appeal applied the test stated by the High Court in M v The Queen (1994) 181 CLR 487: the question for an appellate court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The court must make its own independent assessment of the evidence, while giving full weight to the jury's advantage in seeing and hearing witnesses.

The Court identified a fundamental problem with the Crown case. The forensic evidence placed the appellant in the car at some point during the afternoon of 4 December 2000, but it did not establish when or where he entered it. The eyewitness who saw the car being taken from Hill Street described the driver as Asian in appearance; the appellant is Aboriginal. The Court found that the eyewitness evidence, viewed as a whole, actually tended against the Crown case rather than supporting it.

The Court addressed the Crown's argument that there were only two competing hypotheses: either the appellant stole the car from Hill Street, or his account of entering it in Grace Avenue was true. The Crown submitted that disbelief of the appellant's account therefore supported the stealing charge. The Court rejected this reasoning. As a general principle, disbelief of evidence does not amount to positive proof of the opposite of what is disbelieved. The exception, where the truth must lie between two identified alternatives, did not apply here because the Crown had not established a sufficiently confined field of possibilities.

The Court concluded that the Crown case did not materially rise above the single established fact that the appellant had been in the car at some point that afternoon. That was insufficient to support a conviction beyond reasonable doubt on the stealing charge or, because the manslaughter charge depended on that same foundation, on the manslaughter charge either.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • Verdicts of acquittal entered

Key Takeaways

  • A finding that an accused was present in or associated with an item of property does not, without more, prove beyond reasonable doubt that the accused took that property from the location alleged by the Crown.
  • Disbelief of an accused's account does not, as a general rule, constitute positive proof of the Crown's competing version of events; the exception applies only where the truth is demonstrably confined to one of two identified alternatives.
  • Where forensic evidence establishes presence but leaves open the time and circumstances of that presence, a conviction built on that evidence alone may not be open to a reasonable jury.
  • The Court of Criminal Appeal, applying M v The Queen, confirmed that an appellate court may set aside a verdict as unreasonable where the evidence on the record, even after full allowance for the jury's advantages, reveals a significant possibility that an innocent person has been convicted.
  • Upholding an "unreasonable verdict" ground under s 6(1) of the Criminal Appeal Act 1912 produces verdicts of acquittal rather than a retrial.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Cases
- M v The Queen (1994) 181 CLR 487
- Chamberlain v The Queen (1984) 153 CLR 521
- Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640
- Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81
- Lee v Russell (1961) WAR 103