Azarian v The State of Western Australia

Azarian v The State of Western Australia - [2010] WASCA 190 - WASCA 2010 case summary — Zoe

[78]

There are, in my view, a number of difficulties with these observations. It is not commonplace for judges to invite the jury to consider the question, 'Who is to be believed?', in those terms. Trial judges, in my experience, generally endeavour to avoid putting the matter in that way, precisely because such a question might suggest to a jury that it is necessary for them to pick one or the other of the competing versions of events. Nor am I entirely convinced that the jury would doubtless ask themselves that question, in any event. The expression 'reasonable doubt', if it conveys anything, is surely apt to convey that a juror who is in a state of uncertainty about the evidence must refrain from convicting.

Finally, in respect of the two sentences beginning, 'The jury must be told', it must be accepted that a jury may positively disbelieve and therefore completely reject the evidence of an accused person. In that situation, it would be positively confusing for them to have been told that they could not find an issue against the accused, if the accused's evidence gives rise to a 'reasonable doubt', because, if the evidence is rejected, it must be set aside, and cannot give rise to a doubt.

For those reasons, I am inclined to agree with the views expressed in other cases in this State to the effect that a preferable formulation of the relevant direction may be that suggested in Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116 [25] (Kirby J, Sheller AJ and Dowd J concurring): see Koushappis v Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [104] (Roberts-Smith JA, McLure and Buss JJA concurring), Azarian v The State of Western Australia [2007] WASCA 249 [114] (Miller JA). However, there is no form of words which must be used in all circumstances. The essential point which must be made, where a judge considers it necessary or desirable to do so, is that a jury's task is not to choose between opposing stories, but to determine the question of whether the State has proved its case beyond reasonable doubt.

The nature of the direction indicates the circumstances in which it will be required. It will be required where something has been said by either counsel or the judge, or perhaps even by a witness, which may have the effect of indicating that a jury does have the task of choosing between opposing stories. The essence of the observations of Brennan J in Liberato was that care should be taken not to compromise the clarity and effectiveness of the central directions of law on the onus and standard of proof by indicating that the jury's task was to make such a choice and that, if it was possible that such a misapprehension might arise, it should be the subject of a direction [14] - [17]. (emphasis added)

[92]

The fact that Dr Cooper chose to give evidence does not detract from the important principles of our system of the law that the burden is on the State to prove the charges that it presents against the accused. And the accused is presumed to be innocent until the charges against him have been proven beyond reasonable doubt. So, members of the jury, it is not only a question of deciding whose evidence you prefer. You have to be satisfied that the State has proven the charges beyond reasonable doubt. So it may be that you believe all of Dr Cooper's evidence. In that event, you would acquit him, because his evidence would have given rise to a reasonable doubt with regard to the case that the State has to prove. However, even if you do not believe the evidence that Dr Cooper gave, but his evidence has given rise to a reasonable doubt on a particular issue, you cannot make a finding on that particular issue against Dr Cooper.

On the other hand, if you prefer the evidence for the State you cannot simply find Dr Cooper [guilty] unless you are satisfied beyond reasonable doubt that the evidence led by the State is true and correct. It is very important for you to remember that the question for you to consider is whether, on all the evidence before you, the State has proven each charge against Dr Cooper beyond reasonable doubt. If Dr Cooper's evidence, or the evidence by the State or the other evidence for the defence - Professor Joyce's evidence - has given rise to a reasonable doubt with regard to the State's case, then Dr Cooper is entitled to the benefit of that doubt, and you cannot convict him of any count in respect of which you have a reasonable doubt regarding his guilt.

As I have said, even if you were not to accept Dr Cooper's evidence and to reject that evidence, it does not follow automatically that you convict him of the offences charged. Dr Cooper does not have to prove anything. You still have to be satisfied that the State, by its evidence, has proven the charges beyond reasonable doubt (ts 376 - 377). (emphasis added)

[94]

Now, turning to the first count in the indictment, this is the one that says Dr Cooper, with the intent to facilitate the commission of an indictable offence; namely, an unlawful and indecent assault, administered a stupefying drug to [the complainant]. Now, in order to prove this charge the State must prove three elements beyond reasonable doubt. The first element which the State has to prove beyond reasonable doubt is identity. The State must prove that it was Dr Cooper who did the things that the State says constitute this offence. Members of the jury, you are not likely to have much difficulty with this element as Dr Cooper admits that he was at [the complainant's] house on 20 January 2008. Identity is not an issue in this case. There are other issues that Dr Cooper - or other defences which Dr Cooper raises. The second element that the State has to prove beyond reasonable doubt is that Dr Cooper administered a stupefying drug. Now, to administer a drug simply means to give it to someone. The word 'stupefying' is defined in the Shorter Oxford English Dictionary as to make stupid or numb or torpid, which means apathetic, slow or sluggish; or to make insensible, which means incapable of mentally feeling or perceiving, or to deaden.

Now, you do not need to be satisfied as to exactly what drug or drugs Dr Cooper administered to [the complainant], as long as you are satisfied beyond reasonable doubt that it was a stupefying drug, in the sense that I just described to you stupefy means. Now, the State says that Dr Cooper injected [the complainant] with a drug or a mixture of drugs which had a stupefying effect on [the complainant], in that she became apathetic, incapable of mentally feeling or perceiving and compliant. The defence says none of this ever occurred and that Dr Cooper only suggested that [the complainant] take some of the Valium which he had previously supplied to her and which does not have a stupefying effect.

The third element which the State has to prove beyond reasonable doubt is that Dr Cooper gave [the complainant] the drug with the intent to facilitate an indictable offence. Now, the State says that the indictable offence which Dr Cooper intended to commit was the offence of unlawfully and indecently assaulting [the complainant]. Now, members of the jury, you may accept that the offence of unlawful and indecent assault is an indictable offence. So you don't have to concern yourself any further what an indictable offence means. It is not necessary that Dr Cooper knew that touching [the complainant's] vaginal area is an indictable offence. All you have to be satisfied of beyond reasonable doubt is that the drug was given in order to facilitate the unlawful and indecent touching of the vagina, which is an indictable offence. Now, to facilitate just means to make something easier, to promote it or help it forward. Now, remember as part of this third element the State also has to prove beyond reasonable doubt that Dr Cooper intended to facilitate the commission of an unlawful and indecent assault. Now, intention is a state of mind, and as I said to you previously, one cannot see, hear or touch a state of mind. So in order to make a finding about Dr Cooper's state of mind, an inference has to be drawn from other facts which you find proven and which indicate his state of mind at the relevant time. A person's intention may be inferred from evidence of what that person said and did at the relevant time and from other circumstances which you find proven. However, remember that if you draw an inference from circumstantial evidence you have to be careful that it is the only reasonable inference. As I explained to you earlier in a criminal trial you can only draw an inference which proves the accused's guilt or is indispensable to proving his guilt if it is the only reasonable inference on all the facts before you. Now, each element of an offence that the State has to prove is a fact which is indispensable to the accused's guilt. And each element therefore has to be proven beyond reasonable doubt. You can therefore only draw the inference that Dr Cooper had the intent to facilitate the commission of unlawful and indecent assault if this is the only reasonable inference on all the evidence before you. If another reasonable inference is open on all the evidence before you then you cannot draw the inference that Dr Cooper had the necessary intent. Now, the State says there is only one reason why Dr Cooper would have injected [the complainant] with the drugs and that was to facilitate an unlawful and indecent assault on her. The State says that on all the evidence before you that is the only reasonable inference. That Dr Cooper administered the drug with the intent of committing the indecent assault. The defence on the other hand says that Dr Cooper did not have any such intent as he did not inject [the complainant] with any stupefying drug on 20 January 2008 (ts 378 - 380).

[99]

So the question that you have to resolve, assuming that you have found that Dr Cooper did administer a stupefying drug is whether Dr Cooper had, in his mind, or whether his mind was concentrated on touching [the complainant] indecently, that is sexually, when he gave her the stupefying drug. Or, did he give it to her for purposes of a medical examination, or for some other purpose.

Now, as explained to you earlier that because intent is something that you cannot see or hear or feel. So the State cannot present a witness which said, 'Well, I looked into the mind of Dr Cooper and I could see that he had the intent; that he had his mind concentrated on sexually touching [the complainant] and not on doing a medical examination or some other purpose when he administered the stupefying drug'. This is why you have to make a inference. You have to make a deduction. You have to draw a conclusion from the other facts that there was evidence about in order to make this conclusion whether Dr Cooper did have the intent to sexually touch [the complainant] when he administered the stupefying drug or whether he didn't. And as I said to you, you then look at all the facts that you find proven, so you look at the evidence that [the complainant] gave.

And [the complainant] said that he rang her on the phone and said, 'Can I come over? I've got a favour to ask'. [The complainant] said Dr Cooper then came in and he said to her he had some confidence problems with his wife and he then said, 'I've brought the same drug', or, 'I've brought the same injection that I gave you the other day'. He then injected [the complainant] with it, and she said he then helped her take off her top, and she assisted him with that. And the next thing she remembered is that she was lying on the sofa naked except for her socks on. And then she said he kissed her passionately and he touched and kissed her on the chest. Then the next thing she remembered that he touched her in her vaginal area, and the next thing she remembered that he then helped her getting dressed again. He said - I'm not sure exactly what the words were, but they're words to the effect that he couldn't get aroused and he touched the front of his pants and then he left. So that was the evidence that [the complainant] gave on this, more or less. I hope I've got it right. Counsel will tell me if I haven't. And it is that sort of evidence that you have to look at when you make the decision whether you can draw the inference that Dr Cooper had the intent to sexually touch her when he gave her the stupefying drug. As I said of course you only get to the intent issue once you have decided that he did give her a stupefying drug. Now, you don't only have to rely on [the complainant's] evidence. You can rely on any other evidence that you think are facts from which you can draw an inference regarding Dr Cooper's state of mind. So you can then look at what Dr Cooper says and he says, 'Well, I came there and I was just going to ask how she was doing that day and I didn't give her any stupefying drugs'. So I suppose you don't even get over the first hurdle if you accept Dr Cooper's evidence. 'And I certainly didn't intend to touch her in any sexual manner. I just intended to find out whether she was all right and I palpitated her tummy area to see whether there was any problem with the IUD'. So if you accept that evidence, then you obviously draw an inference from those facts. And the only other thing that I can repeat to you with regard to the matter of intent is intent to do this unlawful sexual assault, which I suppose in layman's term you can translate into sexually touching in this [particular] case. So the question whether there was this intent is an element of the second count and therefore - I want to make sure I've got the second part, and therefore it is something that the State has to prove beyond reasonable doubt. So therefore what I explained to you about inferences applies and that means that you can only draw the inference that Dr Cooper had the intent to sexually touch her when he applied the stupefying drug. You can only draw that inference if it is the only reasonable inference. So you have to ask yourself, 'On the facts that I accept' - first of all you have to ask yourself what facts do you accept. Do you accept [the complainant's] evidence or do you accept Dr Cooper's evidence? But once you have made up your mind as to what facts you accept then you have to ask yourself on those facts is it the only reasonable inference that Dr Cooper had the intent of sexually touching her or isn't it? Is there some other possible intent that he had? (ts 418 - 420) (emphasis added)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (129 paragraphs)

COOPER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 190 (23 September 2010)

Parties

Cases Cited (4)