Coughlan v The Queen [2020] HCATrans 1 (29 January 2020)

Last Updated: 29 January 2020

[2020] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B60 of 2019

B e t w e e n -

EAMONN CHARLES COUGHLAN

Appellant

and

THE QUEEN

Respondent

Application for bail

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON WEDNESDAY, 29 JANUARY 2020, AT 10.13 AM

Copyright in the High Court of Australia
MR S.J. KEIM, SC: May it please the Court, I appear with my learned juniors, MR M.N.B. THOMAS and MR D.M. WELLS for the appellant. (instructed by Craven Lawyers)

MR C.W. HEATON, QC: May it please the Court, I appear with my learned friend, MR M.J. HYNES, for the respondent. (instructed by Director of Public Prosecutions (Qld))

HIS HONOUR: Mr Keim, the parties were notified yesterday that the Court is in a position to hear this appeal in two weeks’ time in Canberra and I understand the parties will be able to proceed on that day.

MR KEIM: Yes, your Honour.

HIS HONOUR: Is your application today pressed?

MR KEIM: We would say this, your Honour. We did anticipate that the Court may have some views with regard to this. We referred to a passage in Jago [1989] HCA 46; (1989) 168 CLR 23 at paragraph 12 which is to the effect that where a person is innocent - we say may at the end of the day be found to be innocent, even one day further in custody is too much. If your Honour was disposed to adjourn the bail application to the end of the hearing of argument we could say no more than what I have already said, but we do press it in that sense. We appreciate that having a day within about a fortnight changes the situation dramatically, but again, if the Court would have otherwise been disposed to grant bail then we would submit that the Court should hear the application and so grant bail. That is what I can say.

HIS HONOUR: I take that to be a yes.

MR KEIM: Yes, your Honour.

HIS HONOUR: You should proceed, Mr Keim.

MR KEIM: Thank you, your Honour. Your Honour, the material that we read is set out in paragraph 2 of our outline of submissions on the bail application. In light of the submissions received from our learned friends, I can reduce my oral submissions down to three comments with regard to the position of the Crown. Firstly, we point to what was said in United Mexican States v Cabal at paragraph 41 which is to the effect – I will be slightly more literal than that:

The history of decisions of this Court shows that ordinarily it will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed. The grant of special leave will often – perhaps usually – indicate that there are strong grounds for so concluding.

Their Honours go on to the other matters to be considered, all of which are conceded by our learned friends. At paragraphs 29 and 30 of their submissions in response on the bail application, our learned friends seek to argue that the grant of special leave in the present case falls into the unusual category of a special leave application being granted, which does not have the normal indicators referred to by their Honours at paragraph 41.

We say that those reasons have no validity in the present case. We say that the grant of special leave went as much to the safeness of the verdict as it did to the reasoning of the Court of Appeal and, without seeking to place anything more than remarks made in argument for the purpose of elucidating the discussion, the considerations raised by your Honour and her Honour Justice Bell on that occasion about the extent to which Ms Maxwell’s evidence on petrol satisfactorily linked the appellant with the explosion went also – raised real questions with regard to the safety of the verdict as well as the way in which the Court of Appeal relied on that.

So that is the first point we make, that the attempt for our learned friends to distinguish a grant of leave in the present case from the usual case should be given no weight by your Honours.

Secondly, and this is dealt with in our learned friends’ submissions on the bail application at paragraphs 33 to 34 – and all of these comments refer to the argument that is set out in greater detail in our learned friends’ submissions on the appeal. Our learned friends in paragraphs 33 to 35 of their submissions on the bail application take the attitude that notwithstanding the acknowledged flaws of the Court of Appeal’s reasoning and its assessment, the fact of the Court of Appeal’s conclusion is lauded as something which your Honour should rely upon and the High Court on the final appeal should rely upon as going to the safeness of the verdict.

We say that that reliance on the Court of Appeal judgment is simply not consonant with the errors which have been identified by us and by your Honours on the special leave application and acknowledged by the Crown in their argument.

The third matter which we would seek to raise as going to the heart of the matter, both on the bail application and ultimately on the appeal, is that our learned friends acknowledge the widespread flaws in the evidence and one can see this at paragraph 21 of their submissions on the bail application. They respond to this by what we say is a flawed argument ‑ ‑ ‑

HIS HONOUR: I am sorry, did you say 21?

MR KEIM: Sorry, paragraph 32 of their submissions on the bail application, your Honour, commencing at paragraph 21 on their submissions in the appeal. I misstated that. Your Honour was following me correctly and I just simply stated it wrongly. I apologise for that.

So our learned friends ignore flaws in almost every aspect of the evidence and they say that does not damage the safety of the verdict because one can add all of these insufficiently proved matters together and they somehow support one another and make each of them proven or more satisfactorily proven than they are on their own.

We say with regard to this two things. We say that the principles set out in Shepherd’s Case and in the qualification and discussion and explanation of Chamberlain do not relate to matters which are insufficiently proved. What the principles with regard to a circumstantial case say is that two matters which are satisfactorily proved may combine, even though the inference that may be drawn from each of the two matters with regard to an appellant’s - may be weak, two matters which are satisfactorily proven can add together to strengthen that inference and so that all of the different elements in a circumstantial case, if each of them is satisfactorily proven, can add together to strengthen the inference.

It is not the case that matters that are simply equivocal, as with regard to the evidence with regard to the cause of the fire and as with regard to the evidence with regard to alleged petrol residue on the appellant’s clothing, or evidence that is just simply not in existence, as in the failure to exclude innocent contact with petrol, those matters cannot go together to strengthen one another and make them sufficiently proven with regard to the matter that would tend to cause guilt in this matter.

If I can give this example, your Honour, taking it from Shepherd and Chamberlain, our learned friends’ argument is as if there was other evidence in the case against the Chamberlains suggesting that a baby had been killed in the car, they are not saying that that goes together with the fact that blood was sufficiently proved to be in the car. Their argument would say if there is other evidence indicating that a murder was committed in the car, then that would sufficient the proof from Ms Kuhl, the expert in that case, to restore foetal blood as something which was sufficiently proven.

So our learned friends are confusing things which are properly proven and the inference that is drawn from them and how those inferences can combine, and things which are not properly proven which are of no
assistance at the end of the day with regard to establishing a circumstantial case.

If we look at our learned friends’ submissions in the light of those three propositions which I have explained, there is no reason not to apply the principles in paragraph 41 of United Mexican States v Cabal. There is no reason not to treat this as the usual case in which the grant of special leave does indicate at least reasonable prospects of success on the appeal and since all of the other matters going to the grant of bail have been conceded by our learned friends your Honour could, in our submission, comfortably grant bail.

With regard to the terms of any such order, your Honour, we have included those in the application. They were arrived at by discussion between the parties in the period before the application to the Court of Appeal where her Honour Justice Brown found that the Court of Appeal did not have jurisdiction. So I do not have any concerns that if your Honour were to form the view that bail should be granted, that the parties could not agree on a satisfactory order to implement your Honour’s determination in that regard.

They were the submissions that we wanted to make, your Honour, unless your Honour had any questions.

HIS HONOUR: No, thank you, Mr Keim.

MR KEIM: Thank you, your Honour.

HIS HONOUR: Mr Heaton, I do not need to hear from you. Thank you.

MR HEATON: Thank you, your Honour.

HIS HONOUR: This is an application for bail in a matter in which special leave to appeal has been granted. The pending appeal is from a decision of the Court of Appeal of the Supreme Court of Queensland which dismissed an appeal against the appellant’s conviction of offences of arson and attempted fraud following a trial by jury in the District Court of Queensland.

The offences of which the appellant was convicted arose out of the destruction of his home by fire on 18 July 2015 and the making of a claim on his home insurance policy the next day. He was first charged on 6 August 2015. The verdicts of guilty were returned by the jury on 6 June 2018. The decision of the Court of Appeal dismissing his appeal against conviction was delivered on 16 April 2019.

Sentencing of the appellant in the District Court was delayed until after the decision of the Court of Appeal. It occurred on 8 July 2019. On that day, convictions were recorded for both offences. For the offence of arson, the appellant was sentenced to three and half years’ imprisonment. For the offence of attempted fraud, he was sentenced to 15 months’ imprisonment. The period of imprisonment was ordered to be suspended after 12 months for an operational period of four years.

The practical effect of that order for the suspension of the sentence, as spelt out by the sentencing judge, is that the appellant will be released from prison after 12 months following which the remaining two and a half years of his sentence will be reactivated only if he commits another offence punishable by imprisonment during the designated operational period. There is no suggestion that the appellant is in fact at risk of reoffending.

From soon after the date on which he was first charged until the date he was sentenced, the appellant was on bail pursuant to provisions of the Bail Act 1980 (Qld). There is no suggestion that he failed to comply with any of the conditions of that bail or that he would be at risk of flight were the bail he seeks now to be granted.

On the day he was sentenced, a further application for bail was made to and refused by the sentencing judge. Since that day, the appellant has remained imprisoned pursuant to the sentence.

The application for special leave to appeal was made on 5 July 2019 and was granted after an oral hearing on 24 October 2019. The sole ground of appeal on which special leave was granted is one that challenges the application by the Court of Appeal of the principles laid down by this Court in M v The Queen [1994] HCA 63; (1994) 181 CLR 487. The ground of appeal is to the effect that, had the Court of Appeal properly weighed the considerations which militated against a guilty verdict, the Court of Appeal would have concluded on the evidence led at the trial that the jury should have entertained a reasonable doubt as to the appellant’s guilt.

The present application for bail was made on 13 January 2020, following the appellant making an unsuccessful application for bail to the Supreme Court of Queensland which, according to the submissions which have been made in writing to this Court, was dismissed for want of jurisdiction. The reasons for that decision are not presently available and the correctness of that decision is not in issue on the present application.

The jurisdiction of this Court to grant bail pending an appeal from a decision of an intermediate appellate court dismissing an appeal against conviction on the basis of a jury verdict is not in doubt. The seminal examination of the nature and incidents of that jurisdiction was that of Justice Brennan in Chamberlain v The Queen [1983] HCA 13; (1983) 153 CLR 514 at 518 to 520. His Honour’s analysis was replicated and expanded upon in the reasoning of the Full Court in United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 at 180 to 182.

Substantially, it amounts to this. The Court’s jurisdiction to grant bail pending an appeal from a decision of an intermediate appellate court dismissing an appeal against conviction is an incident of its jurisdiction to stay the resultant sentence of imprisonment so as to render the exercise of appellate jurisdiction effective. To stay the sentence that has been imposed as a result of the conviction before deciding the appeal, as the Full Court put it in Cabal, “is a serious interference with a due administration of criminal justice”. That is even more so, as Justice Brennan emphasised in Chamberlain, where the conviction is based on the verdict of a jury. For that reason, again in the language of the Full Court in Cabal, it is “the doctrine of this Court” that an order granting bail “will only be made if there are exceptional circumstances”.

The Full Court went on to note in Cabal that the course of decisions in this Court to that date had shown that exceptional circumstances were unlikely to exist unless an applicant for bail could demonstrate that two conditions are satisfied. The first is that there are strong grounds for concluding that the appeal will be allowed. The second is that the custodial part of the sentence is likely to have been substantially served before the appeal is determined.

Subsequent decisions of the Court have re‑emphasised the need ordinarily to satisfy those two conditions as a precondition to the establishment of exceptional circumstances.

The first condition will ordinarily be taken to be met where special leave has been granted. That point was made in Cabal and I take that first condition to be met in the circumstances of the present case. I reject the contention of the respondent that the case falls within that extraordinary category where a closer examination of prospects is warranted.

Whether the second condition is met is a question of degree. At the time of the filing of the application for bail, it appeared that the appeal would not be heard before the March sittings of the Court at the earliest. A vacancy having since occurred in the list for the February sittings of the Court, the parties were notified yesterday that the appeal was able to be listed for hearing on 12 February 2020. Although the appellant will by that time have served the greater part of the custodial period of his sentence, some five months of that sentence will remain. There is no reason to expect that the decision on the appeal will be given other than expeditiously. In those circumstances, it could not be said that in the absence of the grant of bail which he now seeks the appellant would be deprived of the practical benefit of having his conviction set aside if he is successful in the appeal.

The fact is that the appellant has been imprisoned for more than six months. The appeal is now due to be heard in two weeks. Pending the hearing of the appeal, the due administration of criminal justice favours the maintenance of the status quo, that is, the continuing compliance with the existing sentence of imprisonment.

The orders I make are as follows:

1. The appeal is listed for hearing before the Full Court in Canberra on Wednesday, 12 February 2020.

2. The existing directions for the preparation of the appeal are amended to require the joint book of authorities to be filed on or before Friday, 7 February 2020.

3. The application for bail filed by the appellant on 13 January 2020 is dismissed.

Is there anything arising out of that, gentlemen?

MR KEIM: Nothing from me, your Honour.

MR HEATON: No, thank you, your Honour.

HIS HONOUR: Very well. The Court will now adjourn.

AT 10.36 AM THE MATTER WAS ADJOURNED