Coates v The State of Western Australia [2010] HCATrans 135 (28 May 2010)

Last Updated: 2 June 2010

[2010] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P38 of 2009

B e t w e e n -

MARTIN GRAEME COATES

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 28 MAY 2010, AT 11.59 AM

Copyright in the High Court of Australia

MR D. GRACE, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Stephanie J Monck)

MR B. FIANNACA, SC: If the Court pleases, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions for Western Australia)

HEYDON J: Thank you, Mr Grace.

MR GRACE: There are two principle questions raised by this application, your Honours. The first concerns whether the trial was a nullity. The second concerns whether subsequent disclosure by the prosecution of significant material evidence is capable of giving rise to an application that a trial by judge alone be aborted in order to ensure a trial by jury in its place. If I could deal with the nullity question first.

In the year 2000, the applicant pleaded not guilty to the charge of wilful murder and was thereby deemed to have demanded that the issues raised by his plea be tried by a jury pursuant to the now repealed section 622 of the Criminal Code (WA). The deeming provision was subject to Chapter XLIVA of the Code, that being the chapter that allowed an accused to elect to be tried by a judge alone pursuant to section 651A of the Code. That section has now been repealed. Prior to the trial in 2000, the applicant did not exercise his right of election to be tried by judge alone. Had he done so, section 651A(8) of the Code would have prevented him from subsequently electing to be tried by a jury. This prohibition did not make its way into the Criminal Procedure Act in 2004.

In Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, a decision of this Court, your Honour Justice Heydon, together with the Chief Justice and Justices Gummow and Crennan, considered the application of section 128 of the Evidence Act (NSW) in relation to the granting of a certificate to an accused person and its effect in a retrial. I wanted to take your Honours briefly to paragraph 88 of the joint decision at page 294 of the report. There their Honours said this, second sentence:

The first and second trials were each part of one “proceeding” – the prosecution of the accused on the charge of conspiring to import 120 kg of cocaine.

Could I just interpose here, the first and second trials of the applicant were part of the one proceeding. It was the same indictment, an indictment which is found at the front of the application book and bears the year 1999. If I could continue in paragraph 88 in Cornwell:

As Judge Blackmore accepted, at both trials the accused was “charged with the same offence” arising out of the same facts, even though the jurors were different, the trial judges were different, the courts were different, and the form of the indictments differed in relation to the parties. That prosecution was not brought to an end by reason of the jury at the first trial failing to agree on whether the accused should be acquitted or convicted. Rather, that failure simply left the prosecution uncompleted. As Howie J said, a retrial may occur for many reasons other than a jury disagreement . . . The first trial may proceed to a conviction, but a second trial may be necessary because an appeal is allowed on some ground not resulting in a verdict of acquittal . . . To conduct a retrial is to conduct the trial which ought to have taken place in the first place. A retrial returns the parties to the position they were in at the start of the first trial.

KIEFEL J: If that is the case, if you are returned to the position where you were at the start of the first trial, would that not enable you to make an application under section 118(1)?

MR GRACE: The start of the first trial is upon presentation of the indictment and arraignment, and that - - -

KIEFEL J: Yes, but that does not prevent you – yes, I am sorry.

MR GRACE: It depends upon whether the arraignment is in front of the trial judge. One presumes that it is. If it is, then the identity of the trial judge is known and an election cannot be made. It is that last statement in Cornwell that is most important in the context of the applicant’s retrial. The parties were returned to exactly the position they were in at the start of the first trial, that is, at the time that he has arraigned before a jury. That position was that no order under the old Act for a judge alone trial had been made and the statutory presumption of trial by jury prevailed and, as I indicated earlier, the original indictment remained on foot.

At the time that the order was made by Justice Miller in 2006 upon the application for a judge alone trial, the decision in Cornwell obviously had not been delivered. Furthermore, there had been no consideration given by the parties or Justice Miller in February 2006 as to whether there was jurisdiction to make the order. My submission is that the result is that the trial of the applicant was a nullity. It was not a trial in accordance with law.

If I could move to the second question. There is no dispute that the second agreement between the State and Mr X was materially significant. It was not in existence at the time of the order for trial by judge alone. The disclosure of relevant information by the State after an order has been made for trial by judge alone on the application of an accused person may vitiate that order, in my submission, because the decision is based upon conclusions and assumptions about the State’s case and the evidence proposed to be adduced at the time the application is made. Significant changes to the evidence – and here we know that there was well over a year between the time of the application being made and the commencement of the trial, I think over 18 months, in fact – significant changes to that evidence may give rise to considerations not previously apparent to the accused, or those advising him, that would have caused the application not to have been made in the first place and, indeed, that was what was submitted by the applicant to the trial judge, Justice Blaxell.

It is my submission that the Supreme Court of Western Australia has inherent power to ensure that its processes are fair. It was within the jurisdiction and power of the Supreme Court to exceed to the application of the applicant. The learned trial judge ought to have given provenance to the issue of credibility that was at the forefront of the trial, and that was conceded by the prosecution, and ought to have allowed an application to vacate the order to be made. Whether that, because of the statutory strictures, could have been strictly made in front of that trial judge or not is not to the point. It could have been made at a subsequent time when the identity of the trial judge in a retrial was not known.

It is of significant consideration that the statutory right to a trial by jury is not easily displaced. Careful consideration by an accused person and a judge under section 118 of the Criminal Procedure Act 2004 (WA) must occur. As your Honour Justice Heydon said in relation to this very piece of legislation in AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at paragraphs 88 and 89, the scheme introduced by the legislation “was a radical departure from the tradition of centuries”. That was in paragraph 88, and in paragraph 89, in the context of the requirement to give reasons your Honour described the scheme as:

a particular statutory scheme of a novel and radical character regulating the substitution of trial by judge alone for trial by jury.

The consideration by an accused person to making such an application requires obviously careful consideration of the State case. A balancing exercise must be employed, but that exercise cannot be undertaken and remain valid when significant material emerges which trial counsel believes would have justified the balancing exercise being differently decided. The decision not to abort the trial failed to take into account the intention of the legislature to ensure pre-trial disclosure of all relevant evidence. This was a significant development in Western Australia. Your Honours may recall that when this legislation was introduced by the Western Australian parliament in 2004, the Criminal Procedure Act, it was accompanied by a swathe of provisions that was to ensure that there would be adequate disclosure of all relevant evidence pre-trial.

True it is in this case that the evidence only came to light and, indeed, into existence after the order was made by Justice Miller in February 2006. However, the legislative scheme, in order to be effective, depends on full disclosure to ensure that the abrogation by an accused of the right to a trial by jury is a fully informed decision. The credibility of Mr X was the central issue in the trial. Without his evidence being accepted there could be no conviction. The Crown conceded that. Your Honour Justice Heydon in AK discussed at length the advantages of trial by jury in your discussion of Lord Devlin’s famous Hamlyn Lectures.

Justice Blaxell, the trial judge, also discussed the advantages of a jury in relation to issues of credibility. Could I take your Honours to page 18 of the application book where you see in paragraphs 53 to 55, Justice Blaxell opining, at paragraph 54 particularly, about determination of a witness’ credibility. In the second sentence he says:

It is largely a semi-intuitive process, and most ordinary members of the community have the life experiences which equip them to make such an assessment. The great advantage of the jury system is that 12 randomly chosen people of different ages and backgrounds collectively decide such issues of credibility.

Then there was a reference to Doney, and at paragraph 55:

When 12 people unanimously agree on the credibility of a critical witness there can be the highest degree of confidence that that assessment is correct. However, in a trial without a jury only one person makes that assessment, and in my view it follows that exceptional care must be taken before accepting an accomplice’s evidence.

In AK, could I take your Honours to paragraph 94 and there your Honour Justice Heydon referred to the second point made by Lord Devlin as to the advantages of the jury system. There your Honour quoted by saying – the preface was this:

Secondly, Lord Devlin also saw juries as being superior to judges in assessing credibility.

In that passage, Lord Devlin says:

the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much

as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers’ ways of thought; that is the great advantage to a man of judgment by his peers.

The failure in the applicant’s trial to exceed to the application to abort the trial has, in my submission, resulted in a substantial miscarriage of justice in the circumstances of this case. It is submitted that in relation to both suggested grounds of appeal that it is an appropriate case for the grant of special leave. If your Honours please.

HEYDON J: Thank you, Mr Grace. We need not trouble you, Mr Fiannaca.

We are of opinion that there is no reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Western Australia. Accordingly, the application is dismissed.

The Court will adjourn briefly to reconstitute.

AT 12.14 PM THE MATTER WAS CONCLUDED