Cotic and Cowan and Impartial Directions To The Jury

Cotic and Cowan and Impartial Directions To The Jury

On 6 October 2003 I unsuccessfully argued an appeal against conviction for a man challenging the partiality of the summing up and directions to the jury of the trial judge at his trial.

The following is an extract from the judgment of Holmes J in that case, R v Cotic [2003] QCA 435, and sets out the relevant issues.

Holmes J
The sole ground of the appeal is that a passage in the learned trial Judge’s summing-up, in which he cautioned the jury against assuming that complainants of sexual offences could be expected to behave in any particular way, rendered the summing-up unbalanced and the trial as a whole unfair.

Contentions of The Appellant
Mr Bowler, the appellant’s counsel, accepted that apart from this passage the summing-up was balanced but the passage itself created, he submitted, an imbalance to the significant disadvantage of the appellant.

It exceeded, he said, the limits of acceptable comment so as to render the trial unfair. The comments tended to suggest a view of the trial Judge of the evidence of the complainant and in a finely balanced case they would have the effect of endorsing or lending support to the complainant’s evidence. That could be taken, Mr Bowler submitted, in the context of an intervention by the learned trial Judge in cross-examination of the complainant to suggest a reason why he did not leave the room when he was found alone with the appellant.

Assessment

• But there was, in my view, nothing in his Honour’s comments which endorsed the complainant’s evidence.
• At their highest, his Honour’s remarks did no more than suggest to the jury that they should avoid preconceived notions of how a complainant should behave; and his remarks were attended by the reminder that the jury was free to approach the matter if they wished.
• His Honour did not at any stage suggest that an acceptance of the complainant’s evidence should follow.
• Indeed it is noteworthy that the caution was followed by his reminding the jury of the inconsistencies within the complainant’s evidence, and as compared with the evidence of other Crown witnesses.
• His Honour’s comments in my view were unremarkable and did not display partiality.
• They were observations of the type which Section 620 of the Criminal Code permits and were made with appropriate circumspection.
• Elsewhere in his summing-up he summarised Crown and defence cases with complete fairness and made it clear that the onus lay on the Crown to satisfy the jury beyond reasonable doubt.
• I do not think that the appeal against conviction is made out and I would dismiss it.

Incapable of Sitting On The Court of Appeal

Incapable of Sitting On The Court of Appeal

Relevant Chronology
On 13 March 2014 Brett Peter Cowan was convicted of killing Daniel Morcombe and sentenced to imprisonment for life, with parole eligibility set after serving 20 years. His appeal against that conviction has been attendant with significant controversy.

On 26 and 27 November 2014 the appeal relating to the conviction and sentence of Brett Cowan was heard before Carmody CJ, McMurdo P and Fraser JA.

In February 2015 Justices McMurdo and Fraser completed their draft judgments and sent them to the Chief Justice.

On 15 April 2015 Chief Justice Carmody had not published his judgment in the Cowan appeal and had a private meeting in his chambers with Hetty Johnston of Bravehearts, a child protection advocate organisation.

On 7 May 2015 Chief Justice Carmody withdrew from hearing the appeal on the basis of apprehended bias resulting from his meeting with Hetty Johnston before he had published his judgment in the Cowan appeal.

On 14 May 2015 Chief Justice Carmody announced that he “will be unavailable to preside in court for a month” from 18 May 2015. He was seeking treatment for back problem.

On 18 May 2015 Carmody CJ issued a certificate under s 31(2) Supreme Court of Queensland Act 1991 (Qld) stating that he is incapable of sitting on these appeals in light of his recusal on 7 May 2015. (See paragraph [4] of the Cowan judgment)

On 21 May 2015 Judgment was delivered in R v Cowan; R v Cowan; Ex parte Attorney-General (Qld) [2015] QCA 87.

Discussion
Whilst the Cowan appeal was on foot the meeting between Chief Justice Carmody and Hetty Johnston should not have taken place. Such a meeting was always going to invite a suggestion of apprehended bias on the part of the Chief Justice.

Now that he has withdrawn from any further involvement in the Cowan appeal the issue of how the appeal should proceed arises:

• Can the Court continue with just McMurdo P and Fraser JA? Or
• Does a new Court need to be constituted and the entire appeal start again?