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December 8th 2009 @ 2:03am
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Lawyers called in for Quade Cooper
Lawyers for Wallabies star Quade Cooper have urged the public not to pre-judge their client after he was charged with burglary on the Gold Coast on Sunday.
Brisbane law firm Creevey Russell issued a statement on Monday saying investigations into the matter were far from complete and urged an end to speculation about the circumstances surrounding [...]
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Harry said | December 8th 2009 @ 8:35am | Report comment
He’s going with “The Hangover” defence I read in the SMH … “no memory of the night”.
Stand by for some patsy to come forward to fessing up to spiking his drink.
JC said | December 8th 2009 @ 12:12pm | Report comment
So it seems. Unless there are some fantastic circumstances surrounding this event, and if he’s going with the blind drunk excuse then I suspect there is not, I think he will be receiving a jolly good telling off from the ivory tower of the law and a contract torn in two.
Hayden said | December 8th 2009 @ 12:15pm | Report comment
Apparently there is no contract to be torn up right now. Technically he is neither in the employ of either the Reds or ARU, as he is on holiday. Cue the Brumbies to make him an offer.
Joh4Canberra said | December 8th 2009 @ 3:36pm | Report comment
There is most definitely a contract to be torn up. Cooper has a contract to play (if selected) with the Reds and the Wallabies in 2010. That’s a contract that can be torn up. So the existence of the contract to be torn up is not in doubt. And that the ARU can tear it up is also not in doubt. What is in doubt is the ability of the ARU to tear it up *without incurring legal penalties*. Can the ARU tear up it without having to pay the player damages for breach of contract?
The answer to that last question will depend on a lot of things, one of which is the effect under the contract of the player committing this kind of behaviour while on holidays in the off season. That’s going to depend on the way the contract is sructured/ worded. I doubt that anyone here has actually read Cooper’s contract so it’s impossible to say what the case is. But I’d be surprised if the ARU’s lawyers hadn’t covered this possibility in drafting the contract.
ThelmaWrites said | December 8th 2009 @ 5:16pm | Report comment
J4C
Shouldn’t it be trespass instead of burglary? Or course I surmise.
Joh4Canberra said | December 9th 2009 @ 7:49am | Report comment
Thelma,
I’m not exactly sure what your point is. Are you saying that the press was wrong to report that he was charged with the offence of “burglary” and that instead the press should have said that he was alleged to have committed a “trespass”?
Trespass is a wrong in *civil* law but Cooper has been charged with the *criminal* offence of “burglary” under the Queensland Criminal Code.
http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/
The offence of “burglary” is found in section 419 of the Queensland Criminal Code which presumably is the offence Cooper has been charged with. If you click on the above link to the legislation you can read for yourself what the legal definition of “burglary” is under the criminal law of Queensland (although as well as section 419 you may also want to read sections 418, 421 and 425). Basically the legal definition of burglary in Queensland is breaking and/or entering the dwelling of another with the intent to commit an indictable offence (eg stealing). It should be no surprise that this legal definition of “burglary” largely reflects the everyday understanding of “burglary”.
lex said | December 9th 2009 @ 11:07am | Report comment
Agree. Trespass is a civil offence, not a crime. The old sign “Trespassers will be prosecuted” is wrong – trespassers may be sued , but only crimes can be prosecuted.
ThelmaWrites said | December 9th 2009 @ 5:09pm | Report comment
J4C and lex:
Thanks for the comments. Actually I’m not a lawyer (my formal training is in the sciences). But as a trainee in a major bank, our lawyer (who was also a friend) pointed out that it would save everyone a lot of time if we framed our questions correctly. So over the years, I’ve had to acquaint myself with the law. (I’ve just bought a book on Equity and Trusts for $3 from a St Vinnies bin. Best book on the subject – for me at least!)
The reference to “trespass” was meant to focus us on the elements of the alleged “burglary”. So he “entered”. What was his intent? If there was no stealth, is it “stealing”?
Joh4Canberra said | December 10th 2009 @ 3:53am | Report comment
Thelma, as a lawyer I can can say a few things by way of explanation but am mindful of the fact that this is a sports blog and not a law class. So I don’t want to take up space on a matter others may feel is way off topic.
I should of course start off by saying that we don’t actually know the facts yet and Cooper is innocent until proven guilty (or he admits his guilt by pleading guilty in court). At the moment all we have are unsubstantiated allegations and it’s important to realise that these cannot be treated as the “facts” of what actually happened on the night in question. If the matter goes to trial there will be a legal process where various allegations and counter-allegations of fact can be sifted and weighed and the court will come to a view on the facts. And once that is the case we then have to apply the law to the facts to see if the facts as proven amount to the crime of “burglary” or not.
The prosecution therefore is faced with two tasks: (1) to prove to the court beyond reasonable doubt that Cooper engaged in a particular course of conduct and (2) to convince the court that such conduct amounts to the crime of “burglary” under s 419 of the Queensland Criminal Code. (1) is an an argument about the *facts*: What did Cooper do? Or more precisely, what is he proved beyond reasonable doubt to have done?. (2) is an argument about the *law*: Does what Cooper did (or again more precisely what he is proved beyond reasonable doubt to have done) amount to the crime of “burglary” as defined by law? If he pleads not guilty Cooper can deny (1) or (2) or both.
Under s 419 of the Queensland Criminal Code burglary is defined as (1) entering (2) the dwelling (3) of another (4) with the intent to commit an indictable offence. These four things are known as the “elements” of the offence of burglary and the prosecution has to prove all four of these beyond reasonable doubt in order to make the charge of burglary stick. If one or more of these elements is lacking then Cooper is not guilty of the offence of burglary and will be acquitted by the court on any count thereof (although he may be guilty of some other crime or liable at civil law for the tort of trespass etc but that fact is irrelevant in answering a charge of burglary.)
So for example if you have elements (1), (2), and (3) but not (4) there is no offence of burglary. If you walk uninvited into someone else’s house for no particular reason, stand there and then leave then you would not be guilty of the offence of “burglary” (although you may be guilty of another offence). Element (4) is missing here.
And if you have elements (1), (2), and (4) but not (3) there is no offence of burglary. If you enter your own home with the intent of stealing your mother’s (i.e. not your own) jewels which happen to be kept at your house for safekeeping you would not be guilty of the offence of “burglary”. Element (3) is missing here.
Get the picture? All four elements need to be there for guilt to be established. If one or more is missing then the accused is not guilty.
As you have intimated, proving (1), (2), and (3) — objective facts — is fairly uncontroversial (either there is good evidence that the accused did these three things or there is not) and the sticking point is proving element no. (4), i.e. the *intent* of the accused in entering the dwelling of another. So assuming there is evidence to suggest Cooper entered the dwelling of another (and again I stress that the fact of that matter is yet to be proved), the all important question is WHY he entered. That’s going to come down to the evidence before the court. What evidence is relevant here? Two lines of evidence really: (1) what Cooper says in police interviews and in open court can and will be taken as evidence about his intent in entering the house; (2) any conduct he engaged in after entering the house (such as rummaging through the occupiers’ belongings or walking off with some of the occupiers’ property) can and will also be used as evidence of his intent to enter.
If (as has been reported) there are witnesses (the occupiers?) claiming that they saw him rummage through their belongings then that would be strong evidence that his intent to enter was for the purpose of stealing (which would satisfy element no. 4). But it is not certain of course. There are (in theory at least) other possible explanations besides an intent to steal as to why someone would enter another’s house and rummage through the occupier’s belongings. As a scientist you should appreciate the difference between deductive and inductive arguments. Here we are very much dealing with an inductive argument. We are working backwards from effect to cause. We have the observed fact of the accused rummaging through the owner’s belongings; so what caused it? Was it an intent to steal? Or was it something else? We are not dealing with the certainties of deductive logic here so (just like in science) there is room for arguments about how to interpret the available evidence.
Does the fact of the accused rummaging through the occupiers’ belongings prove “beyond reasonable doubt” that he had the intent of committing an indictable offence (eg stealing)? Generally speaking that would be the most plausible explanation, but when it comes to inductive arguments like this what is “generally speaking the most plausible explanation” is NOT always actually true in a given case. The accused might have had a different reason for rummaging through the occupier’s belongings. It would be open for the accused to offer a different explanation in an effort to convince the court that the fact of his rummaging &c (if proved of course) does not go to prove that he entered the house with the intent of stealing.
Of course there are further pieces to the puzzle. There are also reports that Cooper was found with the property of the occupiers on him. If this is true then that would also be strong evidence of the fact that he entered the house with an intent to steal. Again there are (theoretically at least) other possible explanations for the fact of being found in the possession of the occupiers’ property and it is open to Cooper to try to argue that the court should not conclude from this that he entered the house with intent to steal. But in practice that would be a big ask. Not impossible but an uphill battle. A second piece to the puzzle is the possibility of an accomplice and how that effects what Cooper did and intended. A third piece to the puzzle is what state he was in at the time. Reports indicate that he is claiming that he cannot remember large portions of the night on question. He may have been intoxicated. This will obviously raise questions about whether he intended to commit an indictable offence when he entered (element number 4). But it will also raise questions about what control he had over his faculties more generally. There is a general requirement in the criminal law for both “actus reus” (Latin for “guilty act”) and “mens rea” (Latin for “guilty mind”). The general rule is that as well as a physical component to the crime there is also a mental component so that the criminal law does not apply to a person lacking the requisite element of mental fault even if he actually commits all the (physical) elements of the crime. Generally speaking, someone not in control of his faculties is not guilty of a criminal offence. I don’t want to go into detail explaining the requirement for mens rea here so I suggest you look these terms up in an encyclopaedia or law dictionary or ask a lawyer you know to explain these terms to you. But if someone was drunk at the time it raises questions about whether he had the requisite “mens rea”. Now in actual fact, even if drunk you usually still will be considered to have the requisite mens rea (i.e. the mental component of the crime) but that is not universally the case. It can get tricky and you can expect the lawyers to be arguing over points like this.
Hope this helps clarify some of the matters for you. But like I said we don’t know the facts yet. This is really just an explanation of how the law works in a few different possible factual scenarios. I make no claims to know what Cooper did or didn’t do on the night in question.
ThelmaWrites said | December 10th 2009 @ 11:48am | Report comment
Wow, a classic! I don’t deserve such an excellent reply. When I threw in the “trespass” post, I was just scratching around for something in defense of Quade. But I’m not totally surprised. I had followed your argumentations whether Kearney on Elsom was a “charge”, a “push”, etc.Very, very grateful.
Joh4Canberra said | December 11th 2009 @ 11:17am | Report comment
No worries. I’m glad you appreciated the answer. You’re actually thinking like a good defence lawyer there anyway
One way of defending someone on a charge of burglary would be to argue that yes, he entered the house of another i.e trespassed) but did not have the requisite “intent to commit an indictable offence” in which case he would be not guilty of the offence of burglary.
Dingbat said | December 8th 2009 @ 12:27pm | Report comment
i thought he may be a klepto…turns out, he’s just another drunk aussie!!
jacko said | December 8th 2009 @ 12:50pm | Report comment
maybe a drunk kiwi searching for some scroggin… or perhaps he was trying to get a free pair of jandals or a free chillybun… *lol*
Ai Rui Sheng said | December 9th 2009 @ 12:41am | Report comment
Is he a Criminal or a Shakey Islander? Come on fess!!
Sin-ick said | December 11th 2009 @ 10:46am | Report comment
Wasn’t he born in NZ??
Ai Rui Sheng said | December 13th 2009 @ 5:33pm | Report comment
If plays for the mercenary Dingoes and it looks like a duck (criminal) …………..
Cotton McKnight said | December 8th 2009 @ 12:43pm | Report comment
Gee, you guys sure know how to make up you mind.
So much for the presumption of innocence.
Although Dingbat, you were at least a bit funny.
CraigB said | December 8th 2009 @ 4:55pm | Report comment
Cotton – My understanding of the situation is thus. He was allegedly caught red handed going through the belongings of the home owner. While it is not determined he broke the door, he certainly was invited in. He was then possibly restrained a short time later with laptops…
Can you explain how this may have happened WITHOUT breaking the law…..
mcxd said | December 8th 2009 @ 10:27pm | Report comment
CraigB, are you saying he WAS invited in ? puts a bit of a different spin on it. ..i suppose its all speculation right now anyway.
CraigB said | December 9th 2009 @ 6:39am | Report comment
yeah it does, however that is a MAJOR typo on my behalf. apologies, I meant was not invited in. I am as much for innocent until proven otherwsie, but I cannot see from what we know, how he intends to defend himself….
Joh4Canberra said | December 9th 2009 @ 8:13am | Report comment
If you’re going to discuss the technicalities of what constitutes a “burglary” you may actually want to read what the Queensland Criminal Code (specifically section 419) has to say on this. That’s the relevant law here.
http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/
You don’t actually have to “break” to commit a burglary under the Queensland Criminal Code. Burglary is defined as *entering* the dwelling of another with intent to commit an indictable offence (eg stealing). What breaking does is up the maximum penalty from 14 years to life.
So even if the front door was left wide open and you walk in with the intention of taking something you’ve committed the offence of “burglary” under s 419 of the Queensland Criminal Code.
reds fan said | December 9th 2009 @ 8:41am | Report comment
From the few “facts” that have been reported I haven’t read that he was caught with any property.
My understanding is that 1. There was an accomplice who has not been identified or caught 2. there was forced entry, but no mention of who did the forcing (however as stated above that doesn’t rule out burglary) 3. he was seen in the house rummaging 4. there are two laptops missing 5. he was found in the backyard and possibly cap spray was used to subdue him.
Unless I’ve missed an article, I think these are the facts as they stand. There is alot of detail and context missing.
Despite that I would be surprised to see him running out for the first Reds match of the season.
stillmissit said | December 9th 2009 @ 10:16am | Report comment
Looks like we have another drop kick on our books. I really thought he was improving as a player and I was looking forward to seeing what he could do for Qld next season. What is it with these boys, it all feels very other worldly to me, must be getting old.
Seems like the Reds cant pull a trick at the moment can they?
Dingbat said | December 9th 2009 @ 10:30am | Report comment
did he act alone or was Lote with him?
PastHisBest said | December 9th 2009 @ 12:42pm | Report comment
Ahh the dark shark. He’d be terrific in a burglary. Although he probably isn’t quick enough to run from a fat qld copper.
Cotton McKnight said | December 9th 2009 @ 10:41pm | Report comment
CraigB, I never new the “as I see it” meant “the actual truth of the matter”. Surely this is pure speculation. If it is not and you are indeed in the knowledge of the truth, should you be allow to speak this in a public forum before it goes before a court of law.
I tell you what Quade Cooper’s lawyer’s job has just been made very easy. With all this presumption of guilt and theories and speculation being thrown around, any jury will already be prejudiced and it would be throw out of court before it can begin.
Hey PastHisBest, nice black joke to boot, throw in a bit of racism and lets form a lynch mob.
But CraigB, back to you question. No I cannot explain how this may have happened, and nor can you. At the moment he has been charged with breaking the law, he is not yet guilty of breaking the law, and it is not up to you to make a judgment, unless you are the judge.
By all means comment on his rugby ability and prowess, as that is what this website is about.
PastHisBest said | December 10th 2009 @ 6:46am | Report comment
“Hey PastHisBest, nice black joke to boot, throw in a bit of racism and lets form a lynch mob.”
Get over yourself precious.
Cotton McKnight said | December 10th 2009 @ 9:24am | Report comment
Hey now I know where I saw you PastHisBest, it was on ‘Hey Hey It’s Saturday’
PastHisBest said | December 11th 2009 @ 11:37am | Report comment
I shouldn’t bother to reply to justify my comment, however I don’t like being branded a racist.
- The dark shark is Lote’s nickname.
- My comment to him being ‘terrific in a burglary’ was a reference to his league background.
- Lote isn’t that quick,
You really should think before you type.
Sin-ick said | December 11th 2009 @ 10:41am | Report comment
Hey Cotton,
You do realise that is Lote’s nickname?
Onceinawhile said | December 10th 2009 @ 7:22am | Report comment
Will it be a jury trial for this offence?
reds fan said | December 11th 2009 @ 10:57am | Report comment
Next step is a committal hearing in July. At this the judge determines whether the evidence and case is sufficient to send it to trial.
Dingbat said | December 9th 2009 @ 10:59pm | Report comment
Cotton, agree, let’s not pre-judge, but it aint looking good.
Jameswm said | December 10th 2009 @ 7:52am | Report comment
Cotton – the point of being able to discuss it in an open chat forum is to speculate on what might have happened.
And by the way dark shark was Lote’s nickname from his Waratahs days, one I believe he liked.
Cotton McKnight said | December 10th 2009 @ 9:39am | Report comment
James, I am aware that Lote’s nick-name is “Dark Shark”, but it was the inference of because he is black therefore hard to see at night or that link that he is black and it was a burglary go together is what I objected to.
And my point is, that the Roar is one of the few web-site forums that is generally fair minded and even, certainly passionate and strong viewpoints are here and welcome, but this has been one long thread based on the presumed guilt of one person
It is all so easy to join in and pre judge, slander and vilify just the sake of the peer group or a bad joke at the expense of a minority, Humour is fine, but there is much more intelligent was of making jokes, and throwing in a racist joke is bad taste and just plain lazy.
Call me precious if you like, PastHisBest, but I was taught that if you do nothing around racism, you are part of the problem. If I misunderstood you post, enlighten me.
Mick Gold Coast QLD said | December 11th 2009 @ 5:02pm | Report comment
Hear, Hear to PastHisBest and “precious” further up the page.
Where the devil did you drag something about race from, Cotton McKnight, or are you on shift for the Determined to Be Offended Crew? Who is being “vilified”?
I see that the responses clearly point out “dark shark” is a known nickname for Lot$a Tuqiri and, reading back, that is exactly who was being referred to.
You pulled the wrong rein on this assertion, mate. And still you trot out a reference to racism and still you “infer” something other than the bleeding obvious, even after the bleeding obvious is explained. Grow up.
Jameswm said | December 11th 2009 @ 8:54am | Report comment
Cotton we are not in Court – we are in a public forum and and can presume guilt until innocence is proven.
Indeed, contracts can still be torn up where no conviction is recorded.
Joh4Canberra said | December 12th 2009 @ 1:50am | Report comment
Jameswm, does that mean we can presume *you* guilty of some heinous crime and cease all dealings with you until you prove your innocence? Just a question mind you (not saying I would ever take that approach with respect to you). I would be interested to hear your thoughts on the matter.
pothale said | December 12th 2009 @ 3:41am | Report comment
“We are in a public forum and can presume guilt until innocence is proven”??
You’re not serious, James, are you? The opposite should be true. You are dealing with people’s reputations and when you take away everything else, that’s all a person is left with. I would tread very cautiously about making any assumptions about someone’s character, until the facts are known, or put into the public domain in the proper legal context at the very least – that’s what we’re all entitled to. And if the court then makes a ruling that proves the person innocent/not guilty, that’s where it should end.
westy said | December 12th 2009 @ 11:41am | Report comment
Forgive me but has anyone asked quade what was on the laptop? Quade has argued that they would not have had to use capsicum spray if he had not been concentrating on watching material on the laptop. Rumour has it it was a replay of his Gloucester performance with a South American commentator.
Joh4Canberra said | December 13th 2009 @ 3:12am | Report comment
“Quade has argued …” ??? Which Quade would that be? Quade Bloggs? My understanding is that Quade Cooper has not said anything in public about the circumstances of his arrest.
Jameswm said | December 14th 2009 @ 8:46am | Report comment
Pothale and John
Innocent until proven guilty is for courts only, as I said.
Assumptions about people are made all the time every day, every hour, without proof beyond reasonable doubt. No one stops and calls for evidence, cross-examination and closing arguments before forming an opinion about others. A process is followed in court, and that is why someone is innocent until proven guilty (in Australia, anyway).
In civil cases, the burden of proof is only the balance of probabilities (50/50 in reality), which means believing one person’s story over another’s.
I’m not making assumptions about Cooper’s character and I have no idea what happened. But he can be censured or sacked for putting himself in a certain situation, even is no conviction is recorded – think – Brett Stewart.
John – specifically – imagine hypothetically that the person making accusations against swimming coach Terry Buck has an agenda, is unbalanced and has made it all up. Terry Buck’s name is mud, and he may have done nothing at all wrong. Still, he (or his memory) is treated differently since these allegations.
Tiger was found guilty in the court of public opinion well before he confessed, and this was based on the say-so of a cocktail waitress. Where were the cross-examinations, closing arguments and study of law in that case?
Sin-ick said | December 14th 2009 @ 8:49am | Report comment
Bravo……