Coulston v The Queen M31/1996 [1996] HCATrans 510 (13 December 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M31 of 1996

B e t w e e n -

ASHLEY MERVYN COULSTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 1996, AT 10.20 AM

Copyright in the High Court of Australia

MR J.F. BLEECHMORE: May it please the Court, I appear with my learned friend, MR O.P. HOLDENSON, for the applicant. (instructed by the Law Offices of Ellinghaus & Lindner)

MR W.H. MORGAN-PAYLER, QC: If the Court pleases, I appear with my learned friend, MR D. SALEK, on behalf of the respondent. (instructed by the Director of Public Prosecutions (Victoria))

BRENNAN CJ: Yes, Mr Bleechmore.

MR BLEECHMORE: Your Honour, our central submission in this case is that the passage in the learned trial judge's charge about which we complain constitutes a misdirection and, in the circumstances, a serious misdirection which distorted the manner in which the jury considered the ultimate question of the accused's guilt in this case and blurred, in particular, the question of burden of proof and invited the jury to consider other questions which, if not irrelevant, had the capacity to distort the proper process of consideration of that ultimate question.

Secondly, that in the circumstances of this particular case, that constituted a miscarriage of justice because the applicant lost, in the classic words of Justice Fullager in the Mraz Case, an opportunity which was fairly open to him of acquittal, or to put it the other way and, in fact, it is the same test, it is not inevitable that the jury would have convicted had there been no misdirection.

In relation to the first leg of the contention, it is not seriously contended, I believe, or will not be seriously contended, that it was not a misdirection and the Court of Appeal indicated that it is something that his Honour should not have said, although the court below was sympathetic with the position in which the judge was placed, given the nature of the attack on the witness Vincent, the firearm examiner, which apparently provoked, in the eyes of the Court of Appeal, the judge to say what he said and, in particular, that a conviction would cause reasonable people to think that Vincent had not substituted the bullets and was a reliable witness.

BRENNAN CJ: But do you not have to meet the proposition that the Court of Criminal Appeal said that the hypothesis that was mounted in order to challenge Vincent's evidence was untenable?

MR BLEECHMORE: The proposition we have to show is that there was reason to believe the jury might have had a doubt about that evidence, that is to say, to put it bluntly, that there was a reasonable possibility that the witness Vincent had substituted the bullets and that the - - -

BRENNAN CJ: When?

MR BLEECHMORE: It is not possible to say, because in situations of that kind, it is not possible to be precise about what was done and when it was done.

BRENNAN CJ: You must face up to what was said at pages 524 and 525 of the appeal book. What was the error of fact which appears in their Honours observations at the bottom of 524 and the top of page 525:

The possibility of there being available three bullets suitable in all respects.

MR BLEECHMORE: The evidence was that some 250 bullets had been fired from this weapon, which was extraordinary, given that it was a weapon that was to be an exhibit in a murder case.

BRENNAN CJ: That may be so, but you have to have the rifling on these bullets fired at a stage before the burring on the front of the barrel might have changed the perspective of them.

MR BLEECHMORE: Your Honour, the matter proceeds in this way. One would say, how could there possibly be a doubt about the evidence of Vincent because it was corroborated by Sergeant Patterson, who was the police firearms examiner, and also by the defendant's witness as well. The clue that something was wrong is the handwritten emendation or addition to the document which was exhibit J, which is the list of weapons having the same rifling characteristics as the weapon inferentially used in the murders, inferentially in a sense that Vincent had examined the bullets and had determined that the bullets displayed certain characteristics, namely, six lands and grooves with a right hand twist with a lands wider than the groove, "land .063" and "groove .048", and he prepared a list of rifles which possessed those characteristics because they would be contenders, as it were, or suspect weapons which might have been used.

That document is not in fact in the appeal book, but it is sufficiently important for me to ask leave to hand it up at this stage with the job cards, if I may do so? I am referring to the handwritten addition. That document was prepared by reference to what is called the FBI index of rifling characteristics or rifling characteristics file, and you are equipped with the information that I have just outlined which, incidentally your Honours may see in the subsequent pages. The subsequent three pages are the job cards that are referred to in the evidence and your Honours will see the characteristics identified there, the land measurement, the groove measurement, which had been on Mr Vincent's evidence identified on the bullets which had been taken - - -

GUMMOW J: Is it said that there was some fabrication of some of these records you have just handed up?

MR BLEECHMORE: Yes, precisely what, we are not quite certain, but the difficulty arose, the first clue, as I say, that something is wrong - - -

GUMMOW J: Was all this put to Mr Vincent?

MR BLEECHMORE: What was put to him quite clearly was the point that I am about to make now, which was that the date of the handwritten amendment is 21 August 1993. The year is July 1992 and Mr Vincent has given evidence that he realised, or had been informed, that the Sterling was also a weapon which possessed these characteristics and he had made this entry on 21 August, some weeks prior, or a couple of weeks prior to the arrest of the applicant in possession of the rifle in question, but he made a mistake, he said in evidence, on the date, 21 August 1993.

It is possible to make a mistake, but the way it was put to the jury was that this was an extraordinary mistake. People do not make mistakes of that kind. You make a mistake in the year, you go backwards, some people go back many years. You might go back one year, particularly in January or February, in the early part of the year, but you never go forward, and it was put to the jury in that way that they might think that Mr Vincent's explanation for the mistake simply did not make sense.

That leaves open the inference that it is possible that he was lying about when he made this addition and made it in early 1993 before the committal, which was in early 1993. So that led the defence to question this document which is the only document which is objectively establishable as contemporaneous with the events in question. None of the other documents are dated. None of them were shown to anybody else. So there is no objective evidence that these documents were prepared at any other time.

This document purports to be a list of weapons possessing the same rifling characteristics as presumably the weapon that was used in the murders and evidence was given from the highly qualified witness, Mr Barnes, on behalf of the defence that only six of these weapons met the criteria, and to paraphrase what he said, he was not able to see how you could possibly prepare this list from those specifications on the job cards.

BRENNAN CJ: You are taking us through a variety of peripheral considerations which do not seem to me at the moment to deal with the passage that I drew your attention to. What do you have to say about that passage?

MR BLEECHMORE: I apologise, your Honour, I turned away from it. Can you tell me the page - - -

BRENNAN CJ: That is all right. Come back to it if you will. Pages 524 to 525.

MR BLEECHMORE: That was never suggested to Vincent. That is true, it was not suggested to Vincent that he prepared the job cards at some later time.

BRENNAN CJ: The proposition that the Court of Criminal Appeal is putting forward is that the attack upon Vincent is in support of an hypothesis which, to use their Honours' phrase, is "of the utmost improbability", and in another passage of their judgments, they said that:

Allegations of conspiracy and of attempting to pervert the course of justice.....seemingly as expediency was thought to require, and then abandoned.

GUMMOW J: That is at the top of page 529.

MR BLEECHMORE: It is true that various allegations were made at various times. It appeared only late in the piece that it may be that the job cards might have been prepared at some other time. It is true that it was referred to as a sinister matter that the rifling characteristics had, as it were, been shot out and that was, to some extent, abandoned because there would be no point in doing that if the bullets had been substituted, but one simply does not know in that situation. It may be that if there had been a cover up, that the person responsible for the cover up might have done a number of things at once, might have attempted to shoot out the rifling and then, as a last resort prior to the committal, substituted the bullets.

Your Honours, it is my contention, to go back to the list of firearm manufacturers with weapons with the similar rifling characteristics, that there was evidence that with the mistake as to the date, and the reason to doubt that this was in fact a document that was prepared from the three bullets that were taken from the bodies of the deceased, that the jury then might look critically at the totally subjective nature of the evidence that had been given by Vincent.

In a case of this kind, he was simply content to say that he examined the bullets in question and found, in his opinion, that they were fired from the same weapon. There is no demonstration of why that should be so, as in fingerprint evidence there would be a number of characteristics which would be referred to, there would be reason for the opinion. He had worked under unscientific conditions. He had not made working notes. He had not dated his job cards in circumstances where there were two sets of entries on different dates, and you would expect that somebody approaching the matter in a scientific manner would have done so.

All of this was put forward and the Court of Appeal said it was irrelevant because our contention was the bullets were substituted. It is not irrelevant, we contend, because the hypothesis of the defence is that early in the morning on 2 December, Vincent made a mistake, a mistake in identification, and the circumstances were conducive to that kind of mistake because of the matters that I have referred to and, in particular, because of the evidence of Barnes that if you are looking for similarities, they are easy to find. Once a mistake was made, it seems likely, considering the numbers of - - -

GAUDRON J: What was the mistake you say was made?

MR BLEECHMORE: The mistake was made at the beginning, at 2 September.

GAUDRON J: Yes. What do you say the mistake was?

MR BLEECHMORE: The mistake was to make a match when a match did not really exist, that a person examining these bullets between - - -

GAUDRON J: In September; you say the mistake occurred in September?

MR BLEECHMORE: Yes, and that because Mr Vincent did not make a match with all three bullets and that he would have gone back and made a later examination under better circumstances, not working all night long when his eyes were strained and not excited at the possibility of solving this particular murder, circumstances which could easily produce a wrong comparison. There was no replication of it. Mr Glaser, another policeman, looked at what Vincent was seeing for 10 minutes but that was not put forward as corroboration or a proper replication of what Mr Vincent had found.

So having made a match, this publicity in the newspaper - this was put to the jury in the final address of Mr Hayden - the match is trumpeted in the media and then there is profound embarrassment when, later on, Mr Vincent makes the examination again and discovers that he may be mistaken. The motive, it was suggested, was the difficulty in backing down in those circumstances and also in circumstances where, because of the circumstances of the arrest of the applicant, he would be convinced personally, as were others in the Homicide Squad, of the guilt of the applicant.

So, for those reasons, it was open to the jury to say, "We're worried about this mistake. We're worried about the list of weapons with similar characteristics because it seems to be all wrong. It seems to have been constructed from different bullets and there seems to be no corroboration of what Mr Vincent said." They may have had a doubt, but in considering this evidence, they were misled by the judge. It was the kind of defence which required the most careful direction on the question of the burden of proof, because it would be a situation where - - -

GAUDRON J: There is no suggestion that there was any inadequacy in that regard, is there? You do not make it in your application. You seem to be straying some distance from your application really.

MR BLEECHMORE: I am referring to the particular passage complained of which comes in the middle of his Honour's directions in relation to what he calls the second offence which beings at 466 and goes to 468 at line 25. What we say is that where a defence is raised of this character, it is absolutely essential because the jury could easily be led into considering: is it possible that Vincent could have done this? What is his motive for doing it? Why would he lie about this?

GAUDRON J: That is not in fact what was said, is it, at that point?

MR BLEECHMORE: I have three passages in mind. One at page 467 immediately before the passage that is complained about, at line 15:

A more serious allegation of fraud and perjury one could not imagine. The most serious allegations that could be levelled at a forensic witness were made in this court.

Then the passage at line 25:

I said to you this morning Vincent is not on trial; it is the accused who is on trial. However - - -

that word "however" raises the agenda. Of course the accused is on trial, it is obvious, but - - -

GAUDRON J: And it is equally obvious, is it not, that unless the evidence of Mr Vincent were accepted as honest, your client could not have been convicted?

MR BLEECHMORE: Precisely so, your Honour, yes.

GAUDRON J: And, equally, it is obvious that if the evidence were rejected, your client must be acquitted. That shone through the whole of the summing up and the way the case was conducted. He was the linchpin. In those circumstances, I find it hard to see how the statement that is there referred to could affect the jury's deliberations. You have a straight either/or situation. I mean, it is regrettable that it was said, but its impact in a either/or situation is, I venture to suggest, somewhat different from a situation in which it is not such a stark choice.

MR BLEECHMORE: With respect, we say there are three things there. In the short passage which is only two page long, reference to the allegations of fraud and perjury which encouraged, the cases indicate, the jury to consider whether Vincent is guilty of fraud of perjury or could be so and deflect them from the ultimate question. Secondly, the passage complained of, and finally, the passage at page 468 at lines 24 and 25:

What possible motive did Vincent have to manufacture a false case against a person he had never met?

That is at the heart of the Crown case, because the Crown concede that if the jury had a doubt about Vincent's evidence, they should acquit. So you have got what I would submit, looked at selectively, those three remarks in those two pages where his Honour purports to deal in isolation with the second defence, because he then goes on to the third defence, that he has distorted the way in which the jury ought to consider that question. Because of the nature of the defence, it is quite possible, as a matter of common sense, that the jury would be distracted into considering - I see that my time is up, your Honours.

BRENNAN CJ: Thank you, Mr Bleechmore.

If special leave were granted in this case, the appeal would enjoy no prospects of success. Accordingly, special leave will be refused.

AT 10.41 AM THE MATTER WAS ADJOURNED