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Supreme Court of Victoria |
Last Updated: 8 March 2018
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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CATCHWORDS
JUDICIAL REVIEW AND APPEALS – Coronial determination – Application to re-open an inquest into the deaths of three persons in 1992 – Application refused by State Coroner – Application for leave to appeal to Supreme Court – Whether failure to institute the appeal in time due to exceptional circumstances – Whether grant of leave desirable in the interests of justice – Application for leave to appeal dismissed – Coroners Act 2008 (Vic) ss 1, 8, 9, 52(3), 77, 84, 86 and 87A.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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For the Defendant
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Principal In-house Solicitor to the Coroners Court of Victoria
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Introduction
1 Ashley Coulston seeks leave to appeal out of time to the Supreme Court against the determination of the State Coroner of Victoria (‘the determination’) delivered on 9 February 2017 to refuse to reopen an inquest into the deaths of Peter Brendan Dempsey, Anne Louise Smerdon and Kerryn Jane Henstridge (‘the deceased’), who died on 29 July 1992. The original coronial finding in 1995 followed the conviction of Mr Coulston for the murder of each of the deceased. It was to the effect that he had ‘contributed to the cause of death’ of each of the deceased (‘the original finding’). In a notice of appeal, Mr Coulston relies on three grounds. The first two grounds are the substantive grounds relied on whilst the third ground relates to his standing to appeal and is not disputed. The first two grounds are in substance:
(1) the State Coroner denied Mr Coulston natural justice in that she did not consider how the new facts and circumstances mentioned in her determination would have, if investigated, changed the original finding; and
(2) the new facts and circumstances presented to the State Coroner, along with other information in Mr Coulston’s submission to the State Coroner, made the original finding unsustainable.
2 Mr Coulston’s notice of appeal was filed on 13 October 2017, and is seven months out of time. In order for Mr Coulston to obtain leave to appeal out of time, he must satisfy the Court that:
(a) the failure to institute the appeal within the specified period of 28 days was due to exceptional circumstances; and
(b) the grant of leave is desirable in the interests of justice.[1]
Relevant legislation
3 The purposes of the Act are set out in s 1. Relevantly, they are:
(a) to require the reporting of certain deaths; and(b) to provide for coroners to investigate deaths and fires in specified circumstances; and
(c) to contribute to the reduction of the number of preventable deaths and fires through the findings of the investigation of deaths and fires, and the making of recommendations, by coroners; and
(d) to establish the Coroners Court of Victoria as a specialist inquisitorial court...
4 The objectives of the Act are found in s 8. This provides:
When exercising a function under this Act, a person should have regard, as far as possible in the circumstances, to the following-
(a) that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support;(b) that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;
(c) that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;
(d) that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;
(e) that there is a need to balance the public interest in protecting a living or deceased person's personal or health information with the public interest in the legitimate use of that information; and
(f) the desirability of promoting public health and safety and the administration of justice.
5 Section 9 provides that the coronial system should operate in a fair and efficient manner.
6 Section 52(1) provides that a coroner may hold an inquest into any death that the coroner is investigating. However s 52(3)(b) provides that a coroner is not required to hold an inquest if a person has been charged with an indictable offence in respect of the death under investigation.
7 Section 77(3) provides in substance that the Coroners Court may only make an order setting aside some or all of the findings of a coroner if:
(a) there are new facts and circumstances; and(b) it is appropriate to re-open the investigation.
8 The Supreme Court has jurisdiction to hear appeals from the Coroners Court where there is a refusal by the Coroner to re-open an investigation.[2]
9 Section 84 provides:
(1) If the Coroners Court refuses to re-open an investigation under section 77, a person who requested the Coroners Court to set aside some or all of the findings of the coroner may appeal against the Court's determination to the Trial Division of the Supreme Court constituted by a single judge.(2) Subject to section 86, an appeal under this section must be made within 28 days after the refusal by the Coroners Court...
10 Section 86 provides that the Supreme Court may grant leave to appeal out of time if the Court—
(1) is of the opinion that the failure to institute the appeal within the specified period was due to exceptional circumstances; and(2) is satisfied that granting the leave is desirable in the interests of justice.
11 Section 87A provides:
(1) An appeal to the Supreme Court other than on a question of law may be made under ... section 84(1) in respect of a refusal by the Coroners Court to re-open an investigation into a death, if the appeal is made by–...
(b) a person with sufficient interest.
(2) The Supreme Court may allow an appeal under subsection (1) if it is satisfied that it is necessary or desirable in the interests of justice to do so.
The determination
12 In the determination, the State Coroner summarised the circumstances of the original finding:
On Thursday, 30 July 1992, [the deceased were found] in separate rooms at 14 Summit Road, Burwood. Each person had been bound at the wrists with plastic cable ties and had suffered a single gunshot wound to the head.On 2 September 1992, [Mr Coulston] was formally charged with murdering [the deceased]. Following a Supreme Court trial, he was found guilty of each murder and was sentenced. Mr Coulston appealed the convictions to the Court of Appeal and a retrial was ordered. At the second trial, Mr Coulston was again found guilty of each murder. On 11 September 1995, Mr Coulston was convicted and sentenced to three life terms of imprisonment. In 1996, Mr Coulston unsuccessfully appealed the convictions and sentences to the Court of Appeal. Mr Coulston then made an application to the High Court for special leave to appeal against the Court of Appeal's decision. This application was unsuccessful and resulted in Mr Coulston exhausting all of his appeal rights in relation to the convictions and sentences.
On 26 September 1995, the former State Coroner, Mr Graeme Johnstone, made a joint Record of Investigation into Death [for the deceased].
Having considered all the evidence before him, the former State Coroner found that [the deceased] each died from a gunshot injury to the head and that Mr Coulston “contributed to the cause of death” of each person.[3]
13 Her Honour then described Mr Coulston’s application in these terms:
By an application dated 15 February 2016, pursuant to section 77 of the Coroners Act 2008 (Vic) (the Act), Mr Coulston now seeks to have the Findings made by the former State Coroner, including the fact that he contributed to the death of the three deceased, set aside (the Application).The Application, excluding appendices, is 27 pages long. In essence, the Application asserts that there is new evidence to demonstrate the following matters:
(a) that some important evidence was not presented at Mr Coulston's second trial; and(b) that this evidence shows that Mr Coulston could not have committed the murders, because he could not have been at or near the place of the murders at the time they were committed. Noting that it is not the role of a coroner to determine whether criminal offences, such as murder, have been committed, the Application has been interpreted to include that the evidence is provided to demonstrate that Mr Coulston did not contribute to the cause of death of the three deceased.[4]
14 The State Coroner then listed the documents provided by Mr Coulston:
(a) extracts of [Ms M’s] hospital records (Orders for Treatment dated 27 July 1992 and Nurses' Record of Treatment for the dates 29 July 1992 -2 August 1992) ... and [a nurse’s] statement to Victoria Police dated 21 December 1992, regarding her care of [Ms M] from 27 July - 1 August 1992;(b) letters from a Honda motor dealer and Honda Australia addressed to Mr Coulston, dated February 1998, and extracts from Wheels car magazine (undated), each regarding the top speed of a 1983 Honda City; and
(c) documents relating to evidence given by [a witness] at Mr Coulston's criminal trial about admissions made by Mr Coulston to ... in the exercise yard of the Melbourne Remand Prison in early September 1992, being:
(i) the Observation Register reports from 'D' Division (Melbourne Remand Prison) for Ashley Coulston, dated 5-12 September 1992;(ii) extracts of ... testimony in Mr Coulston's committal hearing and first Supreme Court trial; and
(iii) an extract (paragraphs 3-6) of a statement of 'Assistance rendered to police' by Detective Sergeant S.H. Curnow, dated 18 September 1992.[5]
15 The State Coroner then noted that Mr Coulston asserted that the evidence that he had produced showed that he could not have caused the deaths of the deceased. In essence, Mr Coulston challenged the statements taken and evidence given in the course of the criminal proceedings against him.
16 Following these remarks, the State Coroner observed that:
(a) in circumstances where there is a request to set aside the Finding of a coroner who has retired or no longer holds the office of Coroner, another Coroner may determine the application. Mr Graeme Johnstone, no longer holds the office of State Coroner. It is for this reason that I consider this Application;(b) a coronial investigation is inquisitorial and the Coroner's role is to find, if possible, the identity of the deceased, the cause of death and the circumstances in which the death occurred. Under [the Act], coroners were also required to find, if possible, the identity of any person who contributed to the cause of death. It is important to appreciate that a coronial investigation is a fact finding exercise and that it is not the role of the Coroner to lay or apportion blame;
(c) a coroner is not empowered to determine the extent of any civil or criminal liability that may arise from a death.
The Court is empowered to set aside findings and re-open an investigation under subsection 77(3) of the Act only if it is satisfied that:
(a) there are new facts and circumstances; and(b) it is appropriate to re-open the investigation.
For the Application to be successful, I must be satisfied that both elements of the above test are met.The reference to 'new facts and circumstances' encompasses facts and circumstances that are new to the coronial investigation. These facts may have been known to people during the coronial investigation, but they were not known to the coroner conducting the investigation.
In determining the Application, I have considered all of the documents provided by Mr Coulston.[6]
17 No issue was taken by Mr Coulston with any of these observations.
18 The State Coroner then considered whether there were any new facts or circumstances raised by Mr Coulston in the application:
The Application refers to witness testimony and provides copies of documents which were put into evidence at Mr Coulston's committal hearing and/or his two Supreme Court trials. In addition, a number of points are raised in relation to alternate hypotheses which may arise from the testimony of [named witnesses].In circumstances where a homicide has been the subject of a criminal prosecution, the entire criminal brief of evidence, including all statements, transcript and exhibits from the committal, and any trials including the sentencing hearing, form part of the coronial brief for the purposes of the coronial investigation.
Thus, the content of each of the documents now produced by Mr Coulston which concern witness testimony and its interpretation, exhibits or other materials from the various criminal proceedings, do not contain any material that could be considered to be a new fact or raise any matter that could be characterised as a new circumstance, as they were before and considered by the former State Coroner at the time of the original coronial investigation.
I consider that the following documents, which were not before the Courts during the criminal trial process, and consequently the former State Coroner, do raise new facts and circumstances for the purposes of the Application:
(a) extracts of [Ms M’s] hospital records...;(b) the letters from a Honda dealer and Honda Australia regarding the top speed of a 1983 Honda City vehicle...;
(c) the undated extracts from Wheels car magazine...;
(d) the Observation Register reports from Melbourne Remand Prison; and
(e) the statement of 'Assistance rendered to police' concerning [a witness].[7]
19 Having decided that there were new facts and circumstances, the State Coroner then considered whether it was appropriate to re-open the investigation:
In circumstances where I am satisfied that there are new facts and circumstances, the Act provides that I must also be satisfied that it is "appropriate" to re-open the investigation.For the purposes of considering whether it would be appropriate to re-open the investigations into the deaths of the three deceased, I must have regard to the Purposes and Objectives of the Act, which include the consideration that "unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death." I must also have regard to the fact that the Act provides that the Coronial system should operate "in a fair and efficient manner."
In addition, I note that the standard of proof in the criminal jurisdiction is 'beyond a reasonable doubt', while the standard of proof for coronial findings is 'on the balance of probabilities'.
In determining proof of facts in this jurisdiction, coroners are guided by the principles enunciated in Briginshaw v Briginshaw. The effect of this, and similar authorities, is that coroners should not make adverse findings against, or comments about individuals, unless the evidence provides a comfortable level of satisfaction that they caused or contributed to the death.[8]
20 Her Honour then considered the significance and weight (if any) to be attributed to the new facts and circumstances.
21 As to the hospital stay of Ms M, her Honour said:
(a) I note that the details of [Ms M’s] hospital stay formed part of the evidence in Mr Coulston's criminal trial. The extracts of [Ms M’s] hospital records were not;(b) the nursing note made at 12.55pm reflects that [Ms M’s] drain had been removed by that time on 29 July 1992. The evidence seems to be produced in order to refute the details of a conversation which a witness, ... says he had with Mr Coulston on 29 July 1992, at about 7.50pm. However, Mr Coulston also submitted that [Mr C] was "wrong about the day of the week he ... saw me at the marina gate";
(c) furthermore, the extracts of [Ms M’s] hospital records which have been produced contain no evidence of Mr Coulston being at the hospital at any particular time on 29 July 1992. Not only does [the nurse] say in her statement that she had never seen the man shown in the photograph which police officers showed to her (presumably a photograph of Mr Coulston), [her] shift on 29 July 1992 concluded at 2.00pm, well before the time of the deaths;
(d) the content of the extracts of [Ms M’s] hospital records, while a new fact and circumstance, do not contain evidence which satisfies me that it is appropriate to reopen the investigation, as that evidence has no potential to impact the Findings made by the former State Coroner.[9]
22 As to the Honda letters, her Honour said:
(a) in relation to the travel time between the Hastings Marina and Burwood, Mr Coulston:(i) refers to and relies upon [one witness’] evidence about the time he spoke to Mr Coulston at the Hastings Marina (shortly prior to 7.50pm);
(ii) alleges that, if [one witness’s] evidence is correct, he would have been unable to travel to Burwood by 8.20pm (when his car was allegedly sighted in the vicinity), because a 1983 Honda City was incapable of reaching the required speed to travel that distance within that time period; and
(iii) relies on the letter from the Honda dealer to support that claim;
(b) while I accept that it may have been impossible for Mr Coulston to have travelled from Hastings to Burwood if the timing of the two sightings of Mr Coulston are taken to be accurate, I note the following:
(i) as referred to above, Mr Coulston states that [one witness] was wrong about which day he saw Mr Coulston at the marina, a fact which undermines his own reliance on this evidence for the purpose of satisfying me that it is appropriate to set aside the findings and re-open the investigation;
(ii) evidence regarding the two sightings was given, tested and accepted by a higher court (and to a higher standard of proof than that required in this Court);
(c) while the Honda letters constitute a new fact and circumstance, their content does not satisfy me that it is appropriate to re-open the investigation, as it has no potential to impact the Findings made by the former State Coroner.[10]
23 Finally, as to the Observation Register and Statement of Assistance to Police, her Honour said:
(a) these documents go only to the credibility of [a witness], whose testimony concerned certain admissions allegedly made to him in the exercise yard by the applicant;(b) for reasons which I will shortly set out, in my view, even if the evidence of Mr Coulston's admissions was completely discredited, there remains overwhelming evidence that Mr Coulston caused the deaths of the three deceased. As such, there is no potential for this evidence to impact the Findings made by the former State Coroner.[11]
24 The State Coroner then observed saliently that as Mr Coulston was twice found guilty of the offence of murder for each of the deceased, there was no doubt that the former State Coroner was entitled to be satisfied based on the findings in the Supreme Court, and applying the coronial standard of proof to those matters, that Mr Coulston contributed to the deaths of each of the deceased.
Evidence that Mr Coulston contributed to the deaths of each of the deceased
25 There was a great deal of evidence that Mr Coulston contributed to the deaths of each of the deceased. As the State Coroner said:
On 21 September 1993, Mr Coulston was convicted and sentenced by Justice Teague in the Supreme Court in relation to two counts of armed robbery, two counts of false imprisonment, two counts of recklessly endangering life, one count of intentionally causing injury, one count of assault and one count of assault using a firearm to resist arrest. These convictions related to an incident that occurred on 1 September 1992 [‘the September 1992 incident’], unrelated to the one involving the three deceased.The September 1992 incident involved the use of the same gun as that which was used to kill the three deceased, as well as the use of the same type of cable ties as those which were used to immobilise and truss the three deceased. This evidence was also available to the former State Coroner when he made his Findings.
The facts of the September 1992 incident and its relationship to circumstances of the deaths the three deceased in this matter was summarised by the Court of Appeal as follows:
"It is of importance to note that the three murder offences occurred as part of the one incident. The offences were perpetrated on 29 July 1992 and took place at Burwood. The remaining offences took place on I September 1992 at Melbourne and were part of or linked to one transaction.
Some recitation of the relevant facts is required. The evidence established that the applicant purchased a .22 rifle in January 1992. In early June he cut off part of the barrel and stock. At the same time he modified an oil filter to use as a silencer which could be threaded on to the muzzle of the sawn-off gun. The applicant lived on a yacht berthed at the Westernport Marina, Hastings. He lived with his de facto wife, one [Ms M]. During the week commencing 26 July 1992 [Ms M] was in hospital. The Crown alleged that on 29 July the applicant, after visiting[Ms M], returned to the marina where he picked up a bag which contained the rifle, silencer, some ammunition and a number of plastic cable ties.
Three students lived in rented premises at 14 Summit Road, Burwood. One of them was to return home. An advertisement was placed in the Herald-Sun seeking a replacement tenant. The evidence established that it was the applicant's custom regularly to read thoroughly that newspaper. He had a Melway street directory at the relevant time. On the page which described the locality which included Summit Road, there was later found the applicant's fingerprint. The judge inferred that the applicant had, at or about the relevant time, read the advertisement and telephoned in response to it. Because of the advertisement and the interest it generated, strangers could at that time be expected at or about the Summit Road premises.
The Crown further alleged that [the] applicant with the assistance of directions he found in the street directory, drove to the Burwood premises taking with him the bag and its contents.
He entered the house. Only the three students were present. He used the ties to gag and truss each of the victims. He placed a towel or dressing gown over the head of each. A single shot was fired into the head of each victim causing that person's death. The Crown alleged that the assailant then departed leaving nothing more than the three bullets and plastic cable ties used to immobilise each victim. It further alleged that the applicant returned to the marina and was seen there at I0.30pm. If the applicant had then effectively disposed of the firearm, it is almost certain that his possible involvement in the murders would (as he was unwise enough to state to a fellow prisoner...) have remained undetected. He was 35 years of age at the time. He had no recorded history of previous criminal activity. The crimes, as far as can be established, were then, and have since remained, completely motiveless.
However, the applicant did not dispose of the rifle. Instead, on I September I992, the applicant again drove from the marina to Melbourne. He parked his car. He took his bag and its contents after placing several bullets in the rifle with its silencer attached. He walked to the area of the gardens which is opposite the National Gallery in St Kilda Road. At about 8.45pm Mr and Mrs [S], who had attended a function at the gallery, walked to their car which was parked on Government House Drive in the gardens. Just after entering the car they were approached by the applicant. He pointed the gun at them. They assumed he wanted money. Accordingly, they thrust their money at him expecting that he would then depart without any other demand being made. The applicant took the money but did not leave. Instead he forced [them] at gunpoint to leave the car and to lie face down on the ground. He then commenced to bind [Mrs S] with a plastic cable tie. In order to do this he put down his weapon. Mr [S] saw him do so and took occasion to attack the applicant. This enabled them both to break away from their attacker. They ran towards St Kilda Road. They attracted the attention of three security guards. The guards radioed for police assistance.
Before the arrival of the police the applicant fired five shots at two of the guards. One was hit in the right hip. Shortly afterwards the applicant was caught by the police and arrested. At the interview which then followed the applicant was co-operative and admitted - as he has since continued to do - the commission by him of the offences that took place in or about St Kilda Road ....he could scarcely have not done so. He was caught "red-handed" as it were. Most particularly, he was caught in possession of the firearm and plastic ties.
In the course of the police interrogation he said that he had bought the rifle in Devonport. He did so because of his fear of sharks. He said it had been cut down "sometime in the middle of last month". He described how he had manufactured a silencer from an oil filter and had cut a thread on the rifle's barrel in order to attach the silencer. He claimed to have bought the plastic ties "up to I2 months ago" and added that "we use them a lot on boats". He had, so he said, come to town to see his de facto wife who worked at the National Gallery and took the firearm and other equipment in case he found someone to rob.
Later, Sergeant [V], a firearms and tool mark examiner, examined the applicant's rifle. His examination established that the bullet recovered from each of two of the deceased victims had been discharged from that firearm. The bullet recovered from the third victim was too badly damaged to allow examination. This evidence afforded powerful evidence of applicant's being the perpetrator of the murder of the three students. There was further evidence of a not insignificant nature.
A forensic scientist examined the gun and a dressing gown found over the head of a victim. The expert said that there was high velocity blood spatter on the oil filter and the dressing gown. The spatter on the garment was consistent with the blood stains on the oil filter and both were consistent with a weapon having been fired at close range into the source of the blood. Another forensic scientist said that the absence of gunshot residues from the material used to cover each victim's head was consistent with the use of a silencer. That material was also found to contain propellant grain patterns consistent with those produced by the weapon when fired at extremely close range.
These discoveries led to a police interrogation of the applicant on 2 September. He answered "no comment' to each question in respect of offences committed on 29 July. However, on 4 September the applicant (who was in custody) asked to see a police officer,... who was engaged in the investigation. As a result [the police officer] then saw the applicant. A conversation took place in the applicant's solicitor's presence. The conversation was tape-recorded. The applicant said that he was asked by [another person] for a loan of a rifle and requested that the barrel be shortened. The applicant agreed to the request and was paid $250 for his trouble. This was between 20 and 24 July. The firearm was to be returned when finished with by placing it in the boot of the applicant's car a key to which he gave to [another]. The applicant later saw that the firearm had been placed in his car. A [person], who was well known in sailing circles, was called by the Crown. He said that he did not know the applicant.
The applicant stood mute and called no evidence ...".
The evidence concerning Mr Coulston's offences during the September 1992 incident was ruled inadmissible during the second criminal trial. Nevertheless, the evidence concerns matters which are properly taken into account by a coronial investigation, and I do so.
The evidence relating to the September 1992 incident is uncontroversial. Mr Coulston having been found guilty by a jury of these offences was convicted and sentenced in respect of the relevant charges arising out of that incident. During an application to the Court of Appeal, Mr Coulston's legal representatives, conceded that Mr Coulston was correctly convicted of the offences committed on 1 September 1992. Consequently, the Court of Appeal affirmed the original convictions and sentences relating to the September 1992 incident.
The evidence that the gun used in the September 1992 incident is the same gun used in the killing of the three deceased in this matter, is in my view, extremely strong evidence of Mr Coulston's involvement in the deaths of the three deceased.
The evidence against Mr Coulston in relation whether he contributed to the deaths of the three deceased is compelling. The gun that Mr Coulston used in the commission of the crimes related to the September 1992 incident had blood spatter from one of the three deceased people on its barrel. Cable ties of the same type Mr Coulston used in the commission of crimes related to the September 1992 incident were used to immobilise and truss the three deceased. Both the gun and cable ties were found in Mr Coulston’s possession when he was arrested by Victoria Police for the September 1992 incident.[12]
The State Coroner’s conclusions
26 After reviewing the evidence, the State Coroner summarised her findings:
Given the matters set out above, I conclude that there is no possibility that any inquest or further inquiry would lead to a change in the Findings of the former State Coroner.This fact, coupled with the other factors which I must take into account when assessing this matter, namely:
(a) the need to avoid unnecessarily lengthy and protracted coronial investigations;(b) the distress that would be caused to the family and friends of the three deceased, as well as others affected by the deaths, if the Findings were to be set aside and the matter re-opened at this late stage; and
(c) the need for the coronial system to operate in a fair and efficient manner which, in my view, must include the need to ensure that the limited resources of the coronial system are utilised in the most appropriate manner, having regard to the ever increasing demand placed annually upon those resources
all satisfy me that it is not appropriate to re-open the investigation.[13]
27 The determination concludes with a note in italics informing Mr Coulston of his right to appeal to the Supreme Court and the time limit of 28 days if he is to do so. The note states:
Under section 84 of the Coroners Act 2008, if the Coroners Court refuses to re-open an investigation, a person who requested the Coroners Court to set aside some or all of the findings of the coroner may appeal against the Court's determination to the Supreme Court within 28 days after the refusal by the Coroners Court.[14]
Relevant material
28 Mr Coulston relies on affidavits filed on 13 October 2017 and 14 February 2018. He also relies on written submissions dated 21 December 2017 and 12 February 2018, and on an oral submission made to the Court. An affidavit made on behalf of the Coroners Court exhibits the joint record of investigation into the death of the deceased. Counsel for the Coroners Court made written and oral submissions to assist the Court.[15]
Mr Coulston’s submissions
29 In support of his application for leave to appeal, Mr Coulston made the following main points:
(a) he is in custody and has no legal training;
(b) he received the determination on 14 February 2017, but one page was missing;
(c) he did not receive a complete copy of the determination until 22 February 2017;
(d) from February to May 2017, he sent letters to Legal Aid, Justice Connect, and a legal firm but was unable to obtain representation;
(e) until 20 March 2017, there was only one unit computer in the Hoya unit at Barwon Prison for about 50 inmates;
(f) over the period 10-12 May 2017, he received various judgments and case files from Victoria Legal Aid Law Library;
(g) he first sent notice of appeal papers to the Court registry on 18 May 2017;
(h) over the period from May until 13 October 2017, he corresponded with the Principal Registry, and the Self Represented Litigants Coordinator until his notice of appeal and application for leave to appeal were accepted;
(i) his submission to the State Coroner raised important legal points by alleging a conspiracy between Office of Public Prosecutions staff and Victoria Police members regarding the whereabouts of two persons;
(j) he could not have travelled in a 1983 model Honda City vehicle between the various locations mentioned at his trial in the time available; and
(k) the testimony of another witness at the trial was false.
Are there ‘exceptional circumstances’?
30 The expression ‘exceptional circumstances’ like the analogous expression ‘special circumstances’ is frequently used in legislation, and must be considered in the context in which it appears. There are two categories commonly encountered. The first is where the requirement for ‘exceptional circumstances’ relates to the failure to institute the proceeding or appeal in time.[16] In cases that fall into this category, the scope of the inquiry as to whether ‘exceptional circumstances’ exist, is confined to the reason for late commencement. The second is where the legislation permits the ‘exceptional circumstances’ to be shown from any of the circumstances of the case.[17] In the second category, the scope of the inquiry is wider and will include the general context; whether the party seeking an extension of time has a real prospect of success, and the public interest in the finality of litigation.[18]
31 In all cases, the Court must be objectively satisfied that exceptional circumstances exist, and has a discretion as to whether leave to appeal should be granted.
32 In applications for leave to appeal in respect of coronial decisions not to hold an inquest, s 86(a) of the Act requires the Court to be of the opinion that ‘the failure to institute the appeal within time’ was due to exceptional circumstances, while s 86(b) requires the Court also to be satisfied ‘that granting the leave is desirable in the interests of justice’.
33 The second limb of s 86 requires the Court to have regard to considerations such as whether there is a real prospect that the appeal will be successful and the coroner’s findings set aside; the purposes set out in s 1 of the Act, and the objectives and factors set out in ss 6-9 of the Act. The relevant considerations include the need to avoid lengthy and protracted coronial investigations, the distress that may be occasioned to family, friends and others affected by the deaths, and the need for the coronial system to operate in a fair and efficient manner.
34 Section 86(a) of the Act uses similar language to s 109(5)(a) of the Magistrates’ Court Act 1989 (Vic) which likewise requires the Supreme Court to be ‘of the opinion that the failure to institute the appeal within the [prescribed] period was due to exceptional circumstances’. It is appropriate to apply the principles in the decided cases concerning s 109(5)(a) to s 86(a) of the Act.
35 In Mako’ochieng v Kirk, McDonald J summarised previous authority and said:
In order to be granted leave to appeal, the applicant must establish that his failure to file an appeal within the prescribed 30 day period was due to exceptional circumstances. However, even where exceptional circumstances are established the Court has an unfettered residual discretion as to whether leave to appeal should be granted.The principles governing the exceptional circumstances threshold under s 109(5) of the Act are well-established:
(a) The granting of an extension of time is not automatic. Upon the expiry of the time for the lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted;
(b) The onus lies on the applicant to satisfy the test of exceptional circumstances;
(c) Although ‘exceptional’ is defined as meaning ‘unusual, special, out of the ordinary course’ in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to ‘rarely occur’ and ‘perhaps be outside reasonable anticipation or expectation’;
(d) The inquiry is confined to the circumstances relevant to the applicant’s failure to appeal within time (ie 30 days) and whether they may be characterised as exceptional;
(e) As part of that inquiry, a court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time;
(f) The inquiry in determining whether exceptional circumstances exist as required by s 109(5) is not a consideration of all matters germane to the appeal;
(g) That which must be established is that the failure to institute the appeal within the statutory period was due to exceptional circumstances;
(h) The exceptional circumstances must relate solely to the explanation for the delay;
(i) By use of the expression ‘exceptional circumstances’, the legislature intended to place a considerable bar in the way of an applicant before leave will be granted. The bar is a ‘significant hurdle’, which requires a ‘persuasive explanation’, to be demonstrated by ‘clear and cogent proofs’.[19]
36 In Popal v Accounts Control Management Services Pty Ltd,[20] Hargrave J adopted the summary of the relevant principles stated in Burlock v Wellington Street Investments Pty Ltd:[21]
(1) The onus lies on the applicant to satisfy the test of exceptional circumstances.(2) ‘By use of the expression “exceptional circumstances”, the legislature intended to place a considerable bar in the way of an applicant before leave will be granted.’ The bar is a ‘significant hurdle’, which requires a ‘persuasive explanation’, to be demonstrated by ‘clear and cogent’ proofs.
(3) In order to qualify as exceptional circumstances, the circumstances will usually be such that they can be said to ‘rarely occur and perhaps be outside reasonable anticipation and expectation’.
(4) The enquiry as to exceptional circumstances is confined to the circumstances relevant to the applicant’s failure to appeal within the 30 day period. It is the circumstances during this 30 day period which the applicant must prove are exceptional. However, in conducting this enquiry the Court may consider events outside the 30 day period.[22]
37 In Schwerin v Equal Opportunity Board, McDonald J highlighted that it was not sufficient for the plaintiff or the party seeking the extension of time to establish that there were exceptional circumstances generally with respect to the subject matter of the appeal, or the appeal itself, but rather, that which must be established is that the failure to institute the appeal within the statutory period ‘was due to exceptional circumstances.’[23]
38 In my opinion, Mr Coulston has not shown that his failure to institute the appeal within time was due to exceptional circumstances. The determination is prominently dated 9 February 2017. Mr Coulston admits receipt of the determination (less one page) five days later and was aware that he had 28 days after the date of the determination to appeal to the Supreme Court. He made no attempt to file a notice of appeal within time. He wrote to the Registrar of the Supreme Court of Victoria on 16 February 2017 advising that he felt that the 28 day period was not enough time for him to properly prepare the necessary documents, if he was to have any chance of successfully challenging the Coroner’s decision. He also wrote to a legal firm and sought legal aid during the 28 day period.
39 None of the steps taken by Mr Coulston, whether considered individually or collectively, were outside reasonable anticipation or expectation, or could constitute ‘exceptional circumstances’. The appeal time elapsed without any effective step to appeal having been taken by Mr Coulston. Nothing in any way ‘exceptional’ took place. A notice of appeal was not regularly lodged until long after the refusal. Nothing that occurred after the expiry of the appeal period alters the position.
Is the granting of leave desirable in the interests of justice?
40 Having considered the submissions of Mr Coulston, and the evidence that he has provided to this Court, I am not satisfied that the grant of leave to bring an appeal is desirable in the interests of justice.
41 Mr Coulston’s case before this Court is essentially the same case as was made to the State Coroner, and relies on the same submissions and documents. The State Coroner fully considered the issues, and provided compelling reasons for rejecting Mr Coulston’s application.
42 Review of the determination shows that the reasons given by the State Coroner for her refusal to re-open the original finding are highly persuasive. In particular:
(a) the evidence at the two trials was overwhelming and sufficient to convict Mr Coulston of the murder of each of the deceased on two occasions, and to sustain his convictions on appeal;
(b) while Mr Coulston has identified some new facts and circumstances, they are not of great cogency or significance having regard to evidence given at his two trials;
(i) he purchased a .22 rifle in January 1992, cutting off the barrel and part of the stock and fitting a silencer in June 1992;
(ii) he used this gun in an incident in September 1992;
(iii) this was the same gun used in the murder of each of the deceased on 29 July 1992;
(iv) there was high velocity blood spatter on the oil filter of the gun and a dressing gown of one of the victims consistent with the gun having been fired at close range into the source of the blood;
(v) Mr Coulston’s fingerprint was found on the Melway street directory page that contained the home in Burwood where the murders were committed;
(vi) in the course of a police interview, Mr Coulston explained his purchase of the gun in Devonport because of his fear of sharks;
(vii) Mr Coulston was caught by police in possession of the gun and plastic cable ties similar to those used to gag and truss each of the deceased when arrested by police for the September 1992 incident;
(viii) he was captured by police after shooting at two security guards; and
(ix) he stood mute at his trial, and called no evidence.
43 In addition, as the State Coroner highlighted:
(a) there is a need to avoid unnecessarily lengthy and protracted coronial investigations;
(b) distress would be caused to the family and friends of each of the three deceased, as well as others affected by the deaths if the coronial investigation were to be re-opened at this late stage; and
(c) there is a need for the coronial system to operate in a fair and efficient manner including the need to ensure that the limited resources of the coronial system are utilised in the most appropriate manner, having regard to the ever increasing demand placed annually upon those resources.
44 In my view, neither of the two substantive grounds sought to be relied on by Mr Coulston in his notice of appeal has any merit. I am satisfied that:
(1) The State Coroner afforded Mr Coulston procedural fairness and natural justice. She fully considered and assessed the facts and evidence on which he relied in the context of the other evidence available concerning the deaths of the deceased;
(2) The new facts and evidence do not make the original finding unsustainable; and
(3) The whole of the facts and evidence point to the appropriateness of the original finding that Mr Coulston ‘contributed to the cause of death’ of each of the deceased.
Jurisdictional issue
45 The submission made on behalf of the Coroners Court of Victoria raises important legal issues concerning the jurisdiction of the Coroners Court on an application to re-open coronial findings made under the Coroners Act 1985 (Vic). This was the former legislation under which coronial findings were made prior to the commencement of the Act. However, it is unnecessary for me to determine these issues in this proceeding. The issues raised in the submission made on behalf of the Coroners Court can await a later date for their determination. Desirably legal representation should be available on both sides to assist the Court in determining the issues raised.
Conclusion
46 The original finding that Mr Coulston contributed to the cause of death of each of the deceased was unexceptional and consequential on his convictions for murder. The new facts and circumstances are not cogent or significant, and do not demonstrate that any useful purpose would be served by re-opening the inquest into the deaths of the deceased.
47 The application by Mr Coulston for leave to appeal out of time under s 86 of the Act is refused.
[1] Coroners Act 2008 (Vic) (‘the Act’) s 86.
[3] Ashley Coulston and Judge Sara Hinchey, State Coroner COR 1992 2383; 2384; 2385 (9 February 2017), [1]–[4].
[4] Ibid [5]–[6].
[5] Ibid [7].
[6] Ibid [16]–[20] (emphasis in original).
[7] Ibid [21]–[24].
[8] Ibid [25]–[28] (citations omitted) (emphasis in original).
[9] Ibid [29] (emphasis in original).
[10] Ibid.
[11] Ibid.
[12] Ibid [31]–[37] (emphasis in original), citing R v Coulston [1995] VicSC 164.
[13] Ibid [38]–[40].
[14] Ashley Coulston and Judge Sara Hinchey, State Coroner COR 1992 2383; 2384; 2385 (9 February 2017).
[15] R v Australian Broadcasting Tribunal; ex p Hardiman (1980) 144 CLR 13.
[16] See Somerville v Coroners Court of Victoria [2016] VSC 543, [18]; Schwerin v Equal Opportunity Board [1994] VicRp 60; [1994] 2 VR 279, 287–288; Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565, [25]–[27]; Popal v Accounts Control Management Services Pty Ltd [2010] VSC 412, [15]–[18]; Miao v Body Corporate SP31235U [2013] VSC 380, [25]–[30]; Mako’ochieng v Kirk [2017] VSC 459, [8]–[9].
[17] See No 2 Pitt Street Pty Ltd v Wodonga Rural City Council [1999] 3 VR 439, [19]–[25]; Prencipe v Nisselle [1999] VSC 137, [13]–[15].
[18] See Mann v Medical Practitioners Board of Victoria [2002] VSC 256, [18]–[19]; Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [57], [61], [68]–[72]; Oreb v Willcock [2005] FCAFC 196; (2005) 146 FCR 237 [6]–[7]; K v Children’s Court of Victoria (2015) 303 FLR 281, [26], [27] and [31]; Lazarevic v Victoria Police [2015] VSC 13, [36], [36], [39]; Application for bail – Obian [2016] VSC 607, [25]–[30], [32]–[34]; Cahill v Legal Services Commissioner [2017] VSC 177, [18].
[19] [2017] VSC 459, [8], [9] (citations omitted).
[20] [2010] VSC 412 (‘Popal’).
[21] [2009] VSC 565 (‘Burlock’).
[22] Popal [2010] VSC 412, [15] (citations omitted), citing Burlock [2009] VSC 565.
[23] [1994] VicRp 60; [1994] 2 VR 279, 287, [10] (emphasis in original).
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