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.

(My editing for emphasis)

A similar issue was argued in R v Cowan; R v Cowan; Ex parte Attorney-General (Qld) [2015] QCA 87and it met with the same result.

The following extracts from the judgment of McMordo P sets out the relevant issues.

[93] The appellant contended that the direction to the jury of the trial judge “obscured the division between judge and jury, in effect telling the jury how they might more readily reason towards a verdict of guilt” (RPS v The Queen (2000) 199 CLR 620, 637 [42] – [43].)

[115]

• When read as a whole, the judge’s directions to the jury fairly explained the defence case and instructed them, before convicting the appellant, to be satisfied beyond reasonable doubt that the defence hypothesis was not open.
• There has been no misdirection on a matter of law.
• The judge’s refusal to give the redirection sought was not an error of law nor has it led to a miscarriage of justice.
• The judge’s impugned directions read in context in the summing up did not effectively tell the jury how to more readily reason towards a verdict of guilt.
• This ground of appeal is not made out.

(My editing for emphasis)

Conclusion

• It is acceptable to tell the jury to avoid preconceived notions of how a complainant should behave after he / she has allegedly been sexually assaulted
• Where the contention is that the trial Judge effectively told the jury how to more readily reason towards a verdict of guilt, partiality will need to be demonstrated
• The standard the appellant will need to reach on this ground seems fairly high