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Coates v The Queen P120/2002 [2003] HCATrans 785 (18 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P136 of 2002

B e t w e e n -

JAMES WAYNE STAPLETON

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Perth No P120 of 2002

B e t w e e n -

MARTIN GRAEME COATES

Applicant

and

THE QUEEN

Respondent

Applications for expedition

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 18 JUNE 2003, AT 4.34 PM

Copyright in the High Court of Australia

__________________

MR J J EDELMAN: Your Honour, I appear for the applicant for expedition. (instructed by Young & Young and Clarke Whyte Property Lawyers))

MR D DEMPSTER: May it please your Honour, I represent the Crown as respondent in both matters. (instructed by Director of Public Prosecutions (Western Australia))

HIS HONOUR: Yes, Mr Edelman.

MR EDELMAN: Your Honour, the applicant moves on a summons for expedition of this special leave application.

HIS HONOUR: Yes.

MR EDELMAN: Although the Stapleton application is not opposed, we are mindful of your Honour's remarks in the expedition application in SDN Children's Services v Hughes, and we say that the reason that this application should be expedited ahead of others is so that if special leave were granted then this would be an appropriate case to be heard in proximity to the appeal in Kelly v The Queen.

HIS HONOUR: There are a number of practical problems. First of all, Kelly is going to be heard in Tasmania and my understanding is it would not be convenient to add this matter to the list, or these matters to the list.

MR EDELMAN: Your Honour, I have not been informed by the Registry whether or not it is possible to add these matters to the list in Tasmania, but we would submit that - - -

HIS HONOUR: Just excuse me a moment, please. Yes, anyway, carry on.

MR EDELMAN: Even if it were not possible to hear this matter in Tasmania at the same time or within the same week as Kelly, we submit that it would still be of assistance if the matter were heard, for example, in the following week in Canberra - - -

HIS HONOUR: But why should you be given any priority over other applications? I mean, you have significant problems. The statutory regimes in Tasmania and Western Australia are quite different. The issues are quite different in the case.

MR EDELMAN: Your Honour, we acknowledge that the statutory regimes are different. However, there are several issues which are significantly common for this matter to be dealt with, we submit, in close proximity with Kelly. Primarily, there are two issues: the first one is on a very broad approach that Justice Kirby observed during the special leave application in Kelly that the central question is whether the Tasmanian legislature intended to change the common law to such an extent that no admissions to police officers should be given unless they are videorecorded.

In response to a question by your Honour, the counsel for the respondent in Kelly submitted that that is the regime that exists in Western Australia and invited a direct comparison between the Tasmanian and the West Australian legislation. What we submit is that the reasonable excuse exception, the way it has been construed by the Court of Criminal Appeal in Stapleton and certainly in Coates, has been construed in such a broad fashion that it renders the rule itself - it certainly renders the rule not to be one that the common law has been changed to such an extent that no admissions to police officers are admissible unless videorecorded.

HIS HONOUR: Yes, but it is a question of statutory construction. Section 8 of the Tasmanian Code requires admissions made during the course of official questioning to be videotaped. Section 570D of the Western Australian Criminal Code requires all admissions made to a police officer to be videotaped in order to be admissible unless there is a reasonable excuse and the issue in your cases concern reasonable excuse. That is not an issue in the Tasmanian - but there are other problems. It is not going to be possible to separate the Coates matter from the Stapleton matter and in the Coates matter there are other parties involved and other issues. There are questions of "scope of the bias" exception. There are questions concerning the McKinney direction and the extent of a trial judge to give balanced directions.

MR EDELMAN: Your Honour, we will deal with the first point that you raised. That is the issue of whether or not section 8 of the Tasmanian legislation, the construction of the words "in the course of official questioning" involves any consideration of reasonable excuse.

Your Honour will be aware that during the special leave application, your Honour raised the issue of whether or not there could be said to have been a reasonable excuse for why Kelly was not given the opportunity to confirm his admissions on video. It is our submission that if the reasoning of the West Australian Court of Criminal Appeal in Stapleton and in Coates is correct then, in fact, the case for a reasonable excuse in Kelly is even stronger than the case for a reasonable excuse in Coates and in Stapleton.

HIS HONOUR: I cannot remember saying that, but if I did, it does not seem to me to have much to do with the particular issue which is whether or not the statement was made in the course of an official questioning.

MR EDELMAN: The issue of whether it was made in the course of an official investigation, if that is decided in the appellant's favour in Kelly, there still remains the question of whether or not any excuse is enlivened - any exception is enlivened within the legislation, and one of the issues that was raised by the High Court in the special leave application was whether or not it could be said that the admissions that were made by Kelly to the police officer in the car could have been videorecorded or whether there was a reasonable excuse for them not to be recorded. If I could, perhaps, take your Honour to the transcript of the special leave application?

HIS HONOUR: Yes.

MR EDELMAN: The relevant passages there are at pages 4 to 5. At the bottom of page 4, Mr Richter remarks in response to a question by your Honour as to subsection 3(a) which is a reasonable explanation - and that subsection is in identical terms to the West Australian section - Mr Richter remarks:

It may or may not have been. That was not the issue that was raised or argued.

Your Honour remarks:

I know it was not but how could any court rationally come to any other conclusion than that that the explanation in (3) applied.

The argument for counsel for the appellant now is that the fact is it was practical and was not said to be otherwise to resume an interview which was recorded in the form of putting to the man what he said and asking him for confirmation. So it is practical for all intents and purposes in this case, obviously so. No one said it was not.

In our respectful submission if the approach in Stapleton is accepted, in a case such as Kelly where statements themselves, statements suggested an unwillingness to make them or to be confirmed on video, if that approach were suggested then it could not be the case that the statements could have been videorecorded in the Kelly decision.

HIS HONOUR: Yes.

MR EDELMAN: In relation to the second point that your Honour raises, the issue of the practicality, we accept that this case and Coates' Case both raise - well, certainly Coates' Case raises other issues. We, first of all say it would be possible, for example, for Stapleton's Case to be expedited, the special leave application to be expedited for Stapleton and not have expedition for the special leave application in Coates. The only issue that is raised in Stapleton is this issue of the video recording. However, in relation to the Coates matter, we submit that although there are other parties involved and other issues involved, it would still be appropriate to expedite that matter as well so that it could be heard in proximity to both Stapleton and Kelly if Stapleton were expedited and if special leave were given.

I understand that counsel for Mr Nicholls, who is the co-applicant for special leave along with Mr Coates, has written to the Registry and suggested that they have no objection to any expedition in their case. The only remaining party that suggests a possible problem is Hoy, who is the third appellant in the WA Court of Criminal Appeal. In Hoy's Case, by virtue of Order 69 rule 13 - the Hoy application was made in November - - -

HIS HONOUR: It is deemed to be abandoned, is it not?

MR EDELMAN: It is, your Honour. We submit that we should not be prejudiced by the fact that Hoy's counsel has not filed any submissions in eight months, and if this were an appropriate case to be expedited, given that Mr Nicholls' counsel has no objection to it being expedited and heard at the same time then the Coates matter could also be heard with the Nicholls matter.

HIS HONOUR: Yes.

MR EDELMAN: We do not make any further submissions in relation to the substantive issue, your Honour.

HIS HONOUR: Right.

MR EDELMAN: Unless your Honour has any further questions, those are our submissions.

HIS HONOUR: Yes, Mr Dempster, what do you say about this?

MR DEMPSTER: May it please, your Honour, as to the Stapleton aspect, as your Honour has pointed out, there are, of course, differences between this matter and Kelly, very much so. The legislation is different. More importantly, the issue in Kelly, of course, is one interpretation of the legislation. The matter of Stapleton is entirely different. It was accepted by everyone that the legislation applied and their Honours then essentially, in the court below, reviewed the issue of fact, which was the trial judge's assessment of evidence.

HIS HONOUR: Whether there was a reasonable excuse.

MR DEMPSTER: Yes, and also whether there were exceptional circumstances. Either one could justify admission in the face of the legislation. But their Honours were, in the court below, very much minded of the importance of the legislation and principle behind the legislation. It is perhaps too early to go into the merits of the matter, but the Crown will certainly put forward the suggestion that there is no error of principle and my friend is really ultimately looking for some sort of definition of reasonable excuse, which any court would be loath to enter upon and entertain, given that each case depends on its own facts and circumstances and their Honours in the court below were very mindful of that and expressly made reference to that aspect of it, that that particular decision was not, in any sense, to be held to apply to any other case.

As to the matter of Coates particularly, the Crown is especially about the practicalities of the matter and expedition is opposed for that reason. The trial took some two months. The appeal occupied six days. There are many issues. The issue which has been raised in the matter of Stapleton is simply one of those issues, one of many, and as the Crown would see it, respectfully, not an important or primary issue, but rather a subsidiary one. For those reasons the Crown opposes expedition in the practical sense, that it really is asking too much to put everything together so quickly, if nothing else. May it please your Honour.

HIS HONOUR: Thank you, Mr Dempster. Yes, Mr Edelman, have you anything in reply to that?

MR EDELMAN: Three short points, your Honour. Firstly, in relation to the last point that my friend raised about the difficulty in putting everything together in a short time in relation to the Coates matter, all the papers have been filed in relation to Coates. The submissions for the applicant, the submissions for the respondent and the applicant's reply have all been filed and the case is, as it were, ready to go. I understand the application book index was settled this morning.

In relation to the two other points that my friend made, firstly, the issue of whether or not these cases are appropriate vehicles to be compared with the Kelly Case, I note Justice Kirby observed during the hearing of the Pavic special leave application, and that application was ultimately joined with Swaffield and heard two months later, that it is often helpful for courts to have slightly different facts to test propositions. His Honour went on to say that it helps where those facts are hard facts and not just counsel's hypotheses. The marginal increase in time would be minimal and the benefit in elucidating the principle might be substantial, certainly in relation to the Stapleton Case where an appeal, if special leave were granted, would not take more than half a day, would be, we submit, of substantial assistance in comparison with the Kelly Case.

The final point just in relation to that, your Honour, is the point that my friend makes that each case depends on its own facts and circumstances. In relation to that, we certainly agree that the definition of "reasonable excuse" does depend upon facts and circumstances, but there must come a point where, if courts give such a broach approach or a broad construction of the meaning of the words "reasonable excuse", that the intent and the operation of the legislation can be completely defeated.

HIS HONOUR: That only means that on the facts of the particular case it will not be a reasonable excuse.

MR EDELMAN: What was held in the Coates decision by the Court of Criminal Appeal, for example, is that it amounts to a reasonable excuse if the information was volunteered by the accused person, rather than being in response to any question, for example. In the Coates Case the accused person was in the video room. The police gave evidence that it would have been quite simple for them to have pushed the video button to have recorded the interview. They said that they deliberately asked the accused questions to keep him off video. They never recorded the statements that were made or they never asked the accused to confirm the statements when the video recommenced.

HIS HONOUR: Yes, I know, but it is only a question of fact. It binds nobody.

MR EDELMAN: It may be, your Honour, but if a lower court in Western Australia were confronted with a situation where the reasonable excuse proffered was the fact that the statement had been volunteered, the police gave evidence and disputed evidence that an accused had volunteered the statement rather than in response to any question, then the lower court is, with respect, bound to follow the decision of the Court of Criminal Appeal.

HIS HONOUR: The lower court is not bound by questions of fact and it does not matter whether it is a question of fact decided by this Court. Courts are bound by principles of law, the ratio decidendi of cases. They are not bound by facts, no matter how eminent are the judges who lay them down or who decide the questions of fact.

MR EDELMAN: Your Honour, it is our submission that the ratio decidendi of Coates' decision, for example, is that a statement which is volunteered amounts to a reasonable excuse and that that is a legal principle rather than just a factual interpretation of what is meant by "reasonable excuse".

HIS HONOUR: Yes, thank you.

MR EDELMAN: Thank you, your Honour.

HIS HONOUR: I have before me summonses for expedition of two matters pending in the special leave list. The applicants seek an expedited hearing of the special leave applications so that the applications will be heard on 8 August and, if special leave were granted, the appeals in the matter could then be heard with the matter of Kelly, which is set down to be heard in the Hobart sittings commencing on 3 November in this year.

The applicants contend that the issues in Kelly and the issues in these two applications are sufficiently similar to warrant them being heard together. Section 570D of the Criminal Code (WA) provides that an accused's admissions are inadmissible in evidence if not videotaped unless there is a reasonable excuse for not videotaping or the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence. Section 570D(4) provides that it is a reasonable excuse if the accused person did not consent to the interview being videotaped.

The issue concerning 570D in the application of Stapleton and the application of Coates is whether there was a reasonable excuse for the police officers not to videotape what I will call the interviews in which it is alleged that admissions were made by the accused. On the other hand, in Kelly's Case, which arises under section 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) the issue is whether the admission was made in the course of official questioning.

Under section 570D of the Criminal Code all admissions made during the course of official questioning must be videotaped unless they fall within the statutory exceptions. On the other hand, section 8(1)(b) of the Tasmanian legislation requires admissions to be videotaped only when they are made during the course of official questioning. So the issues under both cases are different.

No doubt in interpreting both provisions it would be proper to take into account that they each have similar purposes, namely to protect accused persons from fabricated confessions and to eliminate the opportunity for disputes about the making of admissions in criminal proceedings. But that said, there does not seem to me to be a great degree of identity between the issues decided in each case, and I very much doubt whether a decision on one section will throw much light in respect of the other.

Interestingly, on the special leave application in Kelly the Director of Public Prosecutions for Tasmania argued that the applicant was seeking to give the Tasmanian legislation a construction that would flow from the provision if Tasmania had enacted the Western Australian provision. It was argued on behalf of the Director that Tasmania had chosen a different form of legislation from that which is in Western Australia. But be that as it may, there are other problems associated with granting expedition.

In the Coates application there are two other applicants, or were two other applicants, for special leave: an Amanda Hoy and a Thomas Nicholls, who were, along with Coates, convicted of the murder of one Clare Garabedian. The application in Coates raises a number of issues different from that in the application of Stapleton. For example, there is an important issue concerning the scope of the bias exception to the collateral evidence rule and whether the rule as stated in this Court's decision in Piddington v Bennett & Wood [1940] HCA 2; 63 CLR 533 should be restated. There is also an issue as to the extent of an obligation of a trial judge to give balanced directions and, if my recollection is right, there is also an issue concerning whether or not a particular direction was required in accordance with this Court's decision in McKinney v The Queen [1991] HCA 6; 171 CLR 468.

As I mentioned, besides Coates, there are two other applicants concerned in that case. One of the applications - that is the application by Ms Hoy - by reason of delay, is deemed to be abandoned. But the Nicholls application is being pursued and will be ready to be heard at the same time as Coates. The Director of Public Prosecutions naturally wants the Nicholls and Coates applications to be heard together and it seems to me that to add the Coates litigation to the litigation in Tasmania is a step which would significantly extend the sittings.

Mr Edelman's answer to that is that it would be sufficient to expedite the Stapleton application. That seems to me an unsatisfactory course. It would mean that the Coates' Case would have a reasonable excuse issue to be heard in Western Australia - it would be heard in the Western Australian sittings of the Court or at some later stage in Canberra while the Stapleton application would be heard at another time in Tasmania.

In those circumstances, it does not seem to me that either case is a fit case to be granted expedition. As I have said on previous occasions, an application for special leave to appeal is an application for permission to commence proceedings in the Court. There are no parties to a special leave application in the proper sense of the term; there is no right to special leave. The Court, in hearing an application for expedition, must act on the basis that other applications for special leave involve some matter of public importance or a miscarriage of justice.

There are some 30 applications ahead of the Stapleton and Coates applications and some of them concern persons who are in custody. The result of expediting these applications would be to displace applications prior in time to these applications to the detriment of those applicants who have filed their applications before the current applications.

Accordingly, in all the circumstances, I am not prepared to expedite the hearing of these applications and the summonses are dismissed.

AT 5.02 PM THE MATTERS WERE CONCLUDED


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