Coe v The Queen [2003] HCATrans 400 (3 October 2003)

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Coe v The Queen [2003] HCATrans 400 (3 October 2003)

Last Updated: 14 October 2003

[2003] HCATrans 400

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S371 of 2002

B e t w e e n -

MATTHEW LESLIE COE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 2003, AT 11.32 AM

Copyright in the High Court of Australia

MR M.D. AUSTIN: If it please your Honours, I appear with my friend, MR P.J. PEARSALL, in this matter. (instructed by Sydney Regional Aboriginal Corporation Legal Service)

MR G.E. SMITH: If it please the Court, I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

McHUGH J: Yes, Mr Austin.

MR AUSTIN: Your Honours, the applicant contends that this matter raises three particular issues that go to special leave. The first ground that is set out in the summary of argument in the application book relates particularly to the final ground that the verdict could not be sustained if the jury were properly instructed in this matter. There is also, in our submission, some overlap in relation to the operation of the issues raised by ground 2.

The principal ground here is that the trial judge failed to adequately direct the jury as to how they should approach dealing with evidence given out of court in this particular circumstance. It is submitted that this issue is of wide significance to the operation of the criminal justice system but also that in this particular case there has been a miscarriage, and that miscarriage has been the failure of the trial judge to properly assist the jury who asked on two occasions for assistance in relation to this evidence as to how they in this case dealt with a conflict between the witness’s oral testimony and evidence that was led before them of out-of-court statements and involvement in a photographic array in which he indicated the appellant as being the individual, Matthew Coe.

McHUGH J: Dealing with the inadequate directions on Cusack’s evidence, which I think is ground 1, when they asked whether they should give greater weight to his statements in court rather than to his earlier statements, the trial judge simply said no, did he not? What do you say he should have said?

MR AUSTIN: Your Honour, he should have indicated to the jury, in terms of Domican through the whole process of his summing up and dealing with the evidence in this case, that when they came to consider Mr Cusack’s evidence before them in court – if your Honours go to page 165 of the application book at about point 10, in the submissions before the Court of Criminal Appeal there was a suggestion that an important direction that needed to be given in this particular case, when referring to the identification that ultimately they had to assess, was that the jury should have been directed that if they regarded it as reasonably possible that the witness Cusack had honestly come to a considered opinion that he was no longer certain that the appellant was the offender, they would be obliged to acquit.

In my submission, the matter was that strong and went even further in that if the jury came to the view that they could disregard the oral testimony of Mr Cusack and, for example, if they formed the view that Mr Cusack was unreliable, then they needed to be directed that in those circumstances forming that opinion may adversely affect any reliability of his identification. Part of the fundamental problem in this case was that the evidence of Mr Cusack was treated for the jury’s purposes as in essence involving two out-of-court identifications, one being to the police when he came to make his statement, and the second one being an out-of-court identification when he came to indicate Mr Coe in a photographic array.

But in fact the evidence that the Crown sought to rely on was evidence contained in his statement that could be categorised as recognition evidence, that he immediately could identify Mr Coe at the time of the robbery, and it was that that the jury had to assess.

McHUGH J: One of the worst things that has happened in criminal trials in recent years is tying juries down with more and more instructions. You seem to want judges to direct them almost as to every possible view of the facts and as to how they should decide the case if they come to this view or that view. Some of the matters that you refer to, as Justice Dunford said, can be regarded as nitpicking and they were not points that were taken at the trial.

MR AUSTIN: Your Honour, I do not refer to any other matters listed in that array of complaints that are referred to as nitpicking but I do refer to what I say was an essential problem in the way the jury were instructed in this case. This jury asked for very particular assistance in relation to how they could deal with out-of-court statements compared with the evidence on oath. In my submission, the answer that was given to them that there was no difference was wrong, fundamentally wrong. That answer flies in the face of - - -

McHUGH J: The judge did not say that there was no difference, did he? What the judge said to them was that they had to give more weight to one than the other. Was that not the question?

MR AUSTIN: Yes, your Honour. Ultimately they asked that. Initially they had asked a question as to how they deal with the out-of-court evidence compared with the evidence on oath and the judge said that that matter could wait. In fact, in the question they asked whether that was a matter that should wait for deliberation. The judge put off answering that question. Ultimately the question they asked was based on a submission from trial counsel that the evidence before them was evidence given on oath and they were in a position to assess it, matters that, in my submission, were appropriate for their consideration, the difference between the two areas of evidence.

Where, in my submission, the fundamental confusion arose in this case and has continued to arise is in a failure to adequately examine what ultimately the Crown were asking the jury to determine in this case and then to consider the effect of both the oral testimony and the led out-of-court material in relation to that. What the jury were ultimately being asked to determine was that Mr Coe had been identified as the person who was the robber and had been identified by Mr Cusack at the time of the robbery.

McHUGH J: Mr Austin, the criminal Bar has to understand this Court does not sit as a court of criminal appeal. There has to be something special about the case or a really arguable miscarriage of justice before this Court will interfere. We cannot possibly sit as a court of criminal appeal from all the criminal courts in this country.

MR AUSTIN: Your Honour, what I am saying is that in this case we see starkly a problem that is arising constantly in the criminal courts in New South Wales subsequent to the application of the Evidence Act. That is the failure of courts to adequately direct juries in relation to their use of in-court evidence by one witness whose in-court evidence is contradicted by the Crown through adducing out-of-court statements. This case clearly raises the issue.

Section 38 was ultimately applied but it was only applied in re-examination. Here the operation of the Evidence Act allowed for out-of-court evidence of identification that in itself was relevant in the course of the identification to become the basis of the identification evidence. That was through the course of examination and presentation of this witness in this particular case. The jury asked on a number of occasions for assistance in relation to dealing with this evidence and what they were never assisted with was the proposition that if this witness’s evidence was found to be unreliable in the witness box, that that had a significant effect in relation to any attempt to rely on statements out of court.

The conclusion was open that in fact the unreliability of the witness in court somehow bolstered up the evidence out of court, that if the witness – the Court of Criminal Appeal, in my submission, misunderstood the matter in a fundamental way. If your Honours have a look at page 161 of the application book at about point 13, the second paragraph of his Honour’s judgment, where his Honour considers this:

The evidence of his previous representations, what he said at the committal and his evidence-in chief at the trial were all before the jury. He was cross-examined in front of the jury, on oath, in relation to all those pieces of evidence and it was for the jury to determine which parts, if any, of each of those pieces of evidence they accepted, as this involved a general assessment of Mr Cusack as a witness.

It is not uncommon for witnesses who shortly after the events in question have made a positive identification to attempt to resile at trial from such positive identification. There may be a number of reasons why this is so, and no reason was proved or suggested in the present case.

In fact, in my submission, that is the significant matter.

McHUGH J: Yes, but there were no directions put. As appears from page 135, counsel were asked whether they wanted any directions on fact or law and they both said no. Then you go up to the Court of Criminal Appeal and you say this direction should have been given and that direction should have been given.

MR AUSTIN: In my submission, it is not just a matter of suggesting directions combing through the criticism of nitpicking appellate procedure. In this case the jury were asking for very genuine assistance. Not only were they not given it, it was suggested to them that the evidence out of court was similar to the uncontested evidence of a doctor that was tendered by way of statement, as I would submit to the Court, quite clearly for convenience.

The evidence that his Honour was dealing with was in fact the most highly contested evidence in the trial. Essentially the evidence was the identification of Mr Coe as the offender. Mr Coe had entered the witness box, had given evidence and in fact, in our subsequent submissions, had been improperly cross-examined as to his failure to tell the police about those matters, which led to a number of other significant faults in this case, including divulging that he had been in custody in what was a responsive answer.

Your Honours, the problem here is not that I am trying to relitigate the particular complaints at the Court of Criminal Appeal. It is my submission that there has been a fundamental miscarriage here in that the failure of his Honour in his duty as set out by this Court in Domican to adequately direct the jury in this case as to how they use the out-of-court statements of the same witness in assessing ultimately - - -

McHUGH J: Domican does not deal with out-of-court statements.

MR AUSTIN: No, it does not, your Honour, but I am submitting that in fact one of the factors that should be properly addressed in a summing up in a case of identification is the nature of the evidence that the jury are being asked to deal with. Certainly there are factors like lighting and matters as to whether someone was previously known and those matters that are canvassed in a lis but this case raises a very different question and that is what the jury does with the evidence of a witness who on his oath says in essence in this case that he was honest but mistaken. He never resiles from what he said to the police in the sense of refusing that he had said it, but he does actually say on oath for the first time that the identification did not occur in the circumstances as described in his police statement but happened some time after when he had had a few drinks, and it seems to me he is describing it as with some Dutch courage he made a determination.

In Domican terms, the fact that the identification was made immediately is something that could be directed to the jury in terms of bolstering the identification. The fact that it happened subsequently may weaken it in some way, but here what was not addressed was that the jury were being asked to deal with the evidence of one individual, be it shown by way of the person he identified in a photographic array, which I say is the act of indicating to the court and is relevant for this purpose who the Matthew Coe is that he was referring to and that that was the appellant, that that matter remained unchallenged at the trial, that he knew Matthew Coe and of him referring to Matthew Coe, this applicant was in fact the man that he had been referring to. That matter was relevant for that purpose and should have been led.

The problem in this trial was that the jury needed – I am not suggesting this is a nitpicking direction. This went to the heart of the matter. The jury needed to be directed in very clear terms as to the possible outcome of a determination that the witness on his oath was not telling them the truth. In other cases, it may well be that some of the reasons that section 38 - - -

McHUGH J: The judge directed them, “You’ve got to assess whether the evidence is reliable in whole or in part. There’s no difference really in this case once material is placed before you”. That is what the jury were asking about, because counsel apparently said that the evidence in court was to be given greater weight than the out-of-court statements. The jury wondered about that and they asked about it. No objection was taken to what the judge said to the jury.

MR AUSTIN: But remember that this counsel had asked that the judge not allow the evidence to go before the jury. It is my submission that the
directions needed to be so strong about the potential for convicting improperly in this case that in fact the evidence needed to be taken away if directions of that quality were not given, and they just have not been given, your Honours. That is really where the problem starts. Counsel was doing his first trial and he made that application and eventually at the end of all the proceedings, in a very fundamental sense there has not been an adequate direction which assisted the jury. The jury should not be expected to be able to formulate the question in absolute terms but it did not assist them in relation to the directions that they needed.

It is my submission this is not about nitpicking directions; this is a fundamental question that led to a miscarriage and it is a fundamental question that goes to the administration of justice in New South Wales, particularly since evidence of this out-of-court type of evidence from prosecution witnesses is being led more and more often in the criminal courts. That is why we are here and that is why we make these points, your Honours. It is for those two reasons.

Certainly there has been a miscarriage but I am not asking you to sit as a Court of Criminal Appeal; I am asking you – and it is also important to recognise that Coe himself was said to be untruthful in the course of the cross-examination by the Crown and that that submission had the effect of possibly leaving in the jury’s mind the idea that somehow this witness had colluded in the untruthfulness of presenting a false case. All of those matters led to a fundamental injustice in this trial.

Your Honours, that is why I say the other two grounds in fact are tied into – those grounds are just based on there being a miscarriage. I do not suggest that they are - but it is my submission that there is a fundamental and important point of law that needs to be addressed and a set of directions for dealing with a situation like this considered by the High Court since there are matters like this happening in New South Wales all the time.

McHUGH J: Thank you, Mr Austin. The Court need not hear you, Mr Smith.

We are of the view that there is no reason to doubt the correctness of the Court of Criminal Appeal’s decision. Accordingly, special leave to appeal is refused.

AT 11.53 AM THE MATTER WAS CONCLUDED