Coulter v The Queen [2014] HCATrans 82 (11 April 2014)

Last Updated: 15 April 2014

[2014] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S283 of 2013

B e t w e e n -

CORALIE COULTER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2014, AT 12.42 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MS K.J. EDWARDS. (instructed by Legal Aid Commission of NSW)

MR J.H. PICKERING, SC: I appear for the respondent. (instructed by Director of Public Prosecutions (NSW))

GAGELER J: Yes, Mr Odgers.

MR ODGERS: Your Honours, there is an application for an extension of time in this matter.

GAGELER J: Is that opposed?

MR PICKERING: No issue, your Honour.

GAGELER J: That is granted.

MR ODGERS: Thank you, your Honour. Your Honours, this honourable Court has always recognised significant differences between criminal and civil procedure. This Court has held that a concern to avoid a miscarriage of justice can even trump the proposition that the issues in a case are decided by the parties. As we understand it that is why this Court has repeatedly held that a trial judge is bound to put to the jury every available defence open on the evidence even if defence counsel does not ask for it and even if that defence is inconsistent with the defence case.

We would suggest that that makes sense in the light of the reality of criminal trials for serious crimes like murder. An accused person, particularly an elderly person with no experience of the criminal justice system, may be terrified by the prospect of many years, if not decades, in prison and may choose to deny all involvement in the murder, notwithstanding the existence of evidence which supports a partial defence reducing the murder to manslaughter.

GAGELER J: Well, that is the question, is it not?

MR ODGERS: Yes. This application is advanced, essentially, on the basis that the interests of justice in a particular case require consideration by this Court to correct what we say was a miscarriage of justice. The miscarriage arose in two respects: with respect to the issues left to the jury and with respect to the very heavy sentence which your Honours appreciate was one of 27 years with a non-parole period of 18 years.

With respect to the conviction appeal, we accept that the Court of Criminal Appeal asked the right question. It posed the correct test but gave an answer that we say cannot be sustained and that justice has not been done. As the Crown has emphasised, the applicant at her trial denied all involvement in the murder. Yet what she said to the undercover police officer was powerful evidence of her involvement and it is very likely that the jury relied on that evidence to convict her.

But that very same conversation which convicted her with the undercover officer also provided what the New South Wales judges who have considered this case regarded and described - all of them - as the explanation for her involvement. As summarised by Justice Latham in sentencing the applicant, she had a:

genuine belief that her daughter and her granddaughter were being subjected to gross physical and possibly sexual abuse –

by her son-in-law and, indeed, in essence were being terrorised by him. To give one example, the applicant told the undercover police officer that she believed that her son-in-law planned to employ someone to kill her daughter by burying her alive. Further, the evidence proved – as Justice Latham found – that Helen Ryan had grossly exaggerated the assaults upon her and her husband and her husband’s behaviour to her and their daughter in order to convince the applicant that drastic action was needed to ensure their safety. The applicant was sentenced on that basis.

The Crown in their submissions have contended that there was no evidence of a belief in necessity and they refer to the applicant’s evidence at the trial. However, the submissions neglect what the applicant said to the undercover police officer which showed that she had turned her mind to other alternatives than having her son-in-law killed – other alternatives to ensure the safety of her daughter and granddaughter. In the conversation with the undercover officer, she referred to the possibility of taking out an apprehended violence order against her son-in-law. She referred to the possibility of giving him a “good touch up”. Both were rejected by her on the basis that they would only make him worse. So she has turned her mind to alternatives and concluded that not only would they not work, but they would make the situation worse and, therefore, increase the harm, the risk to her daughter and granddaughter.

GAGELER J: Is this the evidence that is referred to at page 98?

MR ODGERS: Yes, your Honour.

KEANE J: So Justice Simpson has addressed this evidence and reached the conclusion that paragraphs 42 and 43.

MR ODGERS: Yes. Yes, your Honour, she has. Our submission is what, I think, is sometimes called a visitation submission. We cannot say that the Court of Criminal Appeal asked the wrong question or applied the wrong test. Our position is – our submission is that it was manifestly unreasonable – the conclusion that was reached. The conclusion that was reached was that there was no evidence from which, on which a jury could think it a reasonable possibility that the applicant believed it was necessary to have the son-in-law killed to protect her daughter and granddaughter. Our submission is – if we are permitted to advance it in Canberra – there was an abundance of evidence supporting that inference as a reasonable possibility.

GAGELER J: So the correct test is stated at paragraph 37, no evidence is overlooked in the analysis – paragraphs 38 to 40.

MR ODGERS: I cannot say that the test was wrongly stated. I cannot say that evidence was not referred to that bore on this. I can only say that there has been a miscarriage of justice because the evidence was plainly, we say - with great respect to her Honour, plainly raised the issue. We do not know how or why the court fell into error in the ultimate conclusion but our submission is the inescapable conclusion that the High Court should draw is that there was some evidence, taking the defence case at its highest – taking what she said to the undercover police officer at its highest as the test requires – which showed, as the sentencing judge found, that she acted to, effectively, protect her daughter and granddaughter and that she had, plainly, considered alternatives other than what she ultimately did.

Other than her saying to the undercover police officer, “I thought it was necessary” – and as the Court has recognised she does not have to say that word – it is difficult, with respect, to imagine what more there could have been than what was there in the evidence that was before the jury and we say raised this issue.

KEANE J: Well, the highest you can really put it is that what she said to the undercover officer was that other options might have just made Mr Ryan worse.

MR ODGERS: Yes.

KEANE J: But what is wrong with what Justice Simpson said at paragraph 41 on page 98:

The evidence of what Coulter said to Shane is capable of throwing some light on why Coulter did what she did. It falls far short of even having the capacity to constitute evidence that Coulter had the requisite belief – that the murder of Jeffrey Ryan was necessary in order to defend Helen Ryan and/or CR.

MR ODGERS: Well, your Honour, it is an assertion by her Honour that it fell far short. The applicant did not say to the police officer, “I thought it was necessary” but the whole essence of what she told the police officer undercover was that she thought that he was doing terrible things to them, that doing things like getting an AVO or other options would not work – work for what purpose, one asks – to achieve a goal. What is the goal that she was contemplating? The goal was stopping him from doing these things to her daughter and granddaughter. What does that involve: protecting them from his actions.

The whole thrust of what she is telling the police officer is I acted to stop him from hurting my daughter and granddaughter. Therefore, it is inescapable, we say, that she thought it was necessary to do this in order to achieve that outcome. Indeed, as Justice Latham said in sentencing her, her daughter had set out to convince her that it was necessary to do this by grossly exaggerating what the son-in-law had been doing to her and her daughter in order to convince her that it was necessary to do this to protect them.

If that was the goal of Helen Ryan, and the conversation with the undercover officer strongly supports the conclusion that Helen Ryan had been successful in achieving that goal, again I ask, what more could – what other evidence could one need to draw the inference that – or to at least raise the inference – it does not have to prove it, it just has to be some evidence on which a jury could, could regard it as reasonably possible that she had that belief. What more could you ask for us, I ask rhetorically.

GAGELER J: Well, I think we have that point.

MR ODGERS: Yes, thank you, your Honour. Turning to the question of sentence, we have pointed to what we say were errors in the reasoning of the Court of Criminal Appeal at page 130 of the application book and particularly referring to what her Honour Justice Simpson at application book 104. If I could just take your Honours to that? At paragraph 58, her Honour – really the sum total of the reasons why the appeal against sentence was rejected is to be found in paragraphs 58 and 59. Of course, as your Honours appreciate, Justice Harrison dissented and we place some reliance on his dissent.

We say that there is a clear error in paragraph 58 as there is in 59, but in 58 her Honour considered that the absence of a personal motive was an aggravating factor because it thereby showed callousness. But, in truth, we say it was significantly mitigating. Unlike her daughter who was motivated

by purely selfish and financial motives, the applicant was motivated – and this was accepted by the sentencing judge – by her love for her daughter and her love for her granddaughter in circumstances where she believed that they were being terrorised by her son-in-law.

To impose a sentence of 27 years in those circumstances, in my submission, truly shocks the conscience. So we say that in circumstances where she does not have a personal motive – that is personal gain – her motive is to protect other people, how can that be said to show callousness, with respect.

We say that shows error in reasoning and also highlights the correctness of the conclusion of Justice Harrison who said that the sentence was manifestly excessive in the circumstances of this case, given the likelihood that she will not survive to be released on parole. The circumstances of this case that his Honour Justice Harrison was referring to must have included not only her good character – this is a 70-year-old grandmother who has never done anything wrong in her life - but also the motivation which led her to assist her daughter in the way she did.

We respectfully adopt the reasoning of Justice Harrison as to the application of sentencing principles in the circumstances of this case. We say that there was error in the reasoning of the majority of the Court of Criminal Appeal in rejecting the contention of manifest excess and as with the appeal against conviction we say that this is a visitation case where the Court would have sufficient concern about justice – about the consequences, the results in this case – both in terms of a jury not considering an issue which we say certainly seemed to arise but also in terms of sentence – a sentence for this person doing what she did for the reasons she did effectively being sentenced, never to be released, in substance. May it please the Court.

GAGELER J: Yes, thank you, Mr Odgers. Mr Pickering, we do not need to hear from you.

This application raises no question of legal principle. No reason has been shown to doubt the factual analysis undertaken in the Court of Criminal Appeal. We are not persuaded that a grant of special leave to appeal would be in the interests of justice either generally or in the particular case. Special leave to appeal is refused.

AT 12.57 PM THE MATTER WAS CONCLUDED