Coughlan v The Queen

[2019] HCATrans 205

[2019] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B43 of 2019

B e t w e e n -

EAMONN CHARLES COUGHLAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 18 OCTOBER 2019, AT 10.27 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 applicant.  (instructed by Anderson Fredericks Turner)

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

BELL J:   Yes, thank you, Mr Keim.  Would you just bear with me one moment, Mr Keim.

MR KEIM:   Yes, your Honour.

BELL J:   Yes, thank you, Mr Keim.

MR KEIM:   Your Honour, by way of preliminary matters, I am told that your Honours have received what we sought as an aid, which is a provision of the application and the reply with some extracts from the transcript which relate to particular references in our documents, in our application and our reply.  We seek leave to tender that as an aid to the Court.

BELL J:   This is the excerpts from trial transcript to explain and illustrate the footnotes.

MR KEIM:   Yes, your Honour.

BELL J:   Yes.  Mr Coughlan, is there any difficulty with us receiving that material?

MR KEIM:   Mr Heaton, your Honour.

BELL J:   I am sorry, Mr Heaton, my apologies.

MR HEATON:   I have no difficulty, thank you, your Honours.

BELL J:   Thank you.  Yes, we will receive that material, Mr Keim.

MR KEIM:   Yes, your Honour.  And your Honours have a small bundle of authorities.

BELL J:   Yes.

MR KEIM:   We would seek to tender that.

BELL J:   Well, I do not know that there is any need to tender them ‑ ‑ ‑

MR KEIM:   Yes, your Honour.

BELL J:   ‑ ‑ ‑ but we have received those authorities.  Mr Keim, may I raise a matter with you at the outset, and it is this.  As I understand your contention, it is that the Court of Appeal erred in its application of the principles established in M v The Queen and the authorities that have followed M.

MR KEIM:   Yes, your Honour.

BELL J:   You set out four proposed grounds of appeal.  Your second ground takes up the issue of the court’s failure, so it is said, to eliminate an hypothesis consistent with innocence and that, I think, is concerned with the suggested second motorcyclist with the beard, and so forth.

MR KEIM:   It really ‑ it goes broadly to the matters ‑ ‑ ‑

BELL J:   The matter that I am raising with you, Mr Keim, is this.

MR KEIM:   Yes, your Honour.

BELL J:   Your contention comes down to an assertion that the evidence was not capable of establishing guilt to the criminal standard.

MR KEIM:   Yes, your Honour.

BELL J:   That really ‑ on one view, it is a distraction to be concerned with the hypothesis of the second cyclist.  I am suggesting to you, Mr Keim, that perhaps you have over‑egged the pudding in the proposed grounds.

MR KEIM:   We say, your Honour, that the second ground goes to the broader hypothesis, that it was somebody else responsible, not just the second cyclist.  But specifically with regard to the second cyclist, that was referred to by the Court of Appeal as a “pillar” of the defence, and that is the Court of Appeal’s term in that regard.

BELL J:   All right.

MR KEIM:   The reason why that is important is that if there was a second cyclist, then there was another person who was a potential suspect and that opened a whole line of other inquiries such as interviewing people associated with the church to see whether they saw another cyclist and to see if that cyclist could be identified.

So we say firstly in terms of the strength of the argument, responding to your Honour’s over‑egging the pudding, we say that – and we set this out

in our documents – we say that there are about six specific variables, including a very strong indication of the height of the person, which the two young women who were within a few metres of the person identified ‑ ‑ ‑

BELL J:   Mr Keim, I do not think it is going to be particularly profitable for us to run through the variables on the second cyclist on the application.  I draw the matter to your attention since, as I suggest, it may be that that is something of a distraction.  One is looking at a trial at which the applicant was unrepresented.  A number of avenues were explored by the applicant, and that includes the suggested second cyclist, but your ground that contends a failure to apply the principles in M v The Queen might be more directed to a consideration of the sufficiency of the evidence to establish that this was in fact a deliberate act of arson.

MR KEIM:   Yes, your Honour.  I will say no more ‑ ‑ ‑

BELL J:   Mr Keim, I think in fact we might be assisted by hearing from Mr Heaton, and I can come back to you with these issues that I have raised after that.

MR KEIM:   Yes, your Honour.  Thank you for that, your Honour.

MR HEATON:   Your Honours, the disposition of this challenge to the verdict of the jury in this case requires the application of well‑established principles.  The court articulated those principles in the judgment between paragraphs [291] and [295].

GAGELER J:   It is really the application of the principles at page 115 that is the problem, is it not?  In the way in which the evidence of Maxwell is dealt with, or not dealt with, and the way in which the – what might be drawn from the applicant fleeing from the scene is analysed or not analysed at that page.

MR HEATON:   Well, those passages there commencing at paragraph [389] under the heading “Conclusion”, in our respectful submission, draw upon the very detailed discussion and analysis that had taken place in the preceding paragraphs of the very detailed judgment.  Those passages, commencing at [389] through to [391], in our submission, reflect the court’s then conclusions, having analysed the state of the evidence, particularly then as it comes to paragraph [398].  That reflects what we say was the court doing precisely what those authorities and the well‑established principles dictated that this Court do in the face of a challenge on this basis to the sufficiency of the verdict.

BELL J:   Mr Heaton, if you go to paragraph [391], the Court of Appeal describes as “very powerful” the evidence of Ms Maxwell concerning the applicant’s shoes and trackpants, observing that the effect of her evidence was that those items had been in “contact with liquid petrol within hours before” they were tested.  And then the court goes on to express the conclusion that the inference to be drawn is that the applicant had been “involved in distributing petrol which led to [the] explosion”.  There are a number of matters to be raised in that regard.

MR HEATON:   Yes.

BELL J:   Ms Maxwell, as the evidence is summarised earlier in the reasons, was unable to put an age on when it was that the petrol came to be on the trackpants and the shoes.  It is, for my part, not entirely clear that one could – accepting that those items had come into contact with liquid petrol – infer from that that the petrol came to be on them as the result of distributing petrol around the house leading to the fire, in circumstances in which there was no scientific evidence to establish that the cause of ignition was petrol.

MR HEATON:   Well, in our respectful submission, the conclusions drawn by the court in those concluding paragraphs reflect the necessity for the court to consider not the individual pieces of the circumstantial case that were challenged, but those pieces in the context of the whole case.  And whilst it might be properly said that on the basis of Maxwell’s evidence alone, there was at least a theoretical possibility of some perhaps innocent application of petrol being on the shoes and the trackpants worn by the applicant; the effect of that evidence in the context of her evidence, or in the context of the whole case, and drawing upon the other circumstances, do add considerable weight to the conclusions that she drew, however qualified that they were.

And so, in our submission, that comment by the court at paragraph [391] simply reflects the view of the court, having analysed the evidence as they were required to do, and having analysed each piece of the evidence challenged in the context of the whole of the case and coming to a conclusion about that evidence.

BELL J:   Just turning to the expert evidence concerning the fire, neither Sergeant Gormon, nor Mr Spencer, were able to give evidence with confidence as to the location of the fire at its commencement, or the cause of ignition.  And as I understand the summary of their evidence, neither contested the possibility of an electrical fault causing the fire.

MR HEATON:   It was a proposition that was put and the effect of the evidence was that it could not be excluded, but certainly the evidence was that the fire was as a result of an explosion, which has a limited number of, I guess, potential causes, necessarily requiring a build‑up of vapour of an ignitable substance within the confines of the house.

BELL J:   If that is so, how was it that Sergeant Gormon and Mr Spencer were not able to exclude an electrical cause as the means of ignition?

MR HEATON:   The site of the fire, as I understand the evidence ‑ and I will be corrected by my junior if I am wrong ‑ but the site of the fire was not able to be accessed by those that were investigating it.  So that limited what conclusions they could draw upon ‑ draw from it.  But the state of the house after the fire, and particularly the destruction of the electrical wires, meant that it was impossible for any conclusion as to the effect, if at all, of an electrical fire having contributed to the circumstances.  But, again, whether or not that had significance necessarily required an analysis of that part of the evidence in the context of all of the evidence.

BELL J:   Well, when one looks to the context of all of the evidence, I think the applicant adduced evidence through the NRMA officer to establish that he was not in financial extremis in any sense.  There was some substantial quantity of funds available to him, is that so?

MR HEATON:   Yes, that is the evidence.

BELL J:   He had recently completed a renovation of the premises.

MR HEATON:   Yes.

BELL J:   So there was no financial motive.  The property was not suggested to be over‑insured or anything of that kind?

MR HEATON:   There was nothing of that nature.  I mean, I can accept without hesitation that there was no apparent motive, and that was certainly a feature that was promoted during the course of the trial, and, indeed, a factor that was considered by the court in their concluding paragraphs.

BELL J:   Yes.  And to the extent that there was an issue at the trial about whether the investigation had been lacking because of the failure to get CCTV footage to establish, as the applicant suggested, that he had been chased from the scene by some unknown person, that seemed to loom large in the way the trial was conducted by the unrepresented applicant.  Is that a fair analysis?

MR HEATON:   Yes.  In that that was a crucial, perhaps, part of his case in trying to undermine the confidence that might be drawn in the conclusions that the evidence otherwise pointed to.

BELL J:   It was the fact, Mr Heaton, that one of the young men from the next door house did call out to the applicant as the applicant, having sustained some injuries in consequence of the explosion, as the applicant was leaving.  So one plausible explanation is that the applicant was concerned about the person who called out to him ‑ ‑ ‑

MR HEATON:   Yes.

BELL J:   ‑ ‑ ‑ and may have perceived that he was being chased.  I mean, it all seems to be an issue that hardly took the Crown anywhere, in terms of a circumstance going to a consciousness of guilt.

MR HEATON:   Well, with respect, it was more nuanced than that.

BELL J:   Yes.

MR HEATON:   So the explosion occurred at the house.  He was apparently thrown by the force of the explosion.  There were two of the four young youths that were still at the car, the Subaru that was described, which was parked outside on the street.  One of those called out to him, and that must have been Mr Dyke, and inquired of him, “Are you okay?”  So that was what was called out for him.  It was a matter for the jury to determine whether or not, reasonably, that might have given some foundation to a belief, a subjective belief in Mr Coughlan that he was being chased at that point.

But beyond that, he then ran down the street.  Adding to this – and this is what, I guess, I do not mean to exclude any of the pieces of the evidence when analysing these scenarios ‑ but the bike that he had travelled to the property on, which was not registered in his name, had been parked at a location away from the house, so he ran to that spot.

We would say that the scenario as to why he did that was implausible but that is a matter for a jury to determine.  He ran to that spot, and then essentially fled from the scene and was absent, essentially, and unaccounted for, for about three hours after that, before at about 9.15 pm he presented at the Caboolture Police Station.

So whether or not it was reasonable for him – I will frame it more appropriately.  Whether or not that gave rise to a doubt about there being a second person, or a doubt about whether he reasonably and honestly believed that he was being chased, were matters for a jury to assess, in light of all of those circumstances.  So, in my submission, that aspect of the case did have some weight to it, particularly when added to the other circumstances.

The fact that he had parked his other vehicle, registered in his name, at the Narangba Tavern earlier that day and then for reasons that defy comprehension walked home, leaving it there, then went to the property on a motorcycle not registered in his name – for the purpose, he said, of engaging in a sale which, on his version, seems to have suggested that the result would be that the bike would be handed over to the purchaser in exchange for cash, leaving him then without some means of getting away, getting home ‑ so those are just some of the aspects.  Again, I do not mean to be exhaustive, it was an extensive case, but ‑ ‑ ‑

BELL J:   Mr Heaton, accepting circumstances plainly of suspicion, one comes down to the question of the capacity of the evidence to establish guilt to the criminal standard, it does seem that it was important in the analysis of the Court of Appeal that one could draw the conclusion that, from Ms Maxwell’s evidence, that the reason that she detected petrol residue on the pants and the shoes was because the applicant had distributed petrol inside the house before igniting the fire.

MR HEATON:   Yes.

BELL J:   And in circumstances in which there was no evidence that the cause of the fire was an accelerant, namely petrol, that might be thought a large proposition.

MR HEATON:   Well, again, I respectfully take issue with the categorisation that there was no evidence that the fire was caused by petrol.

BELL J:   Yes.

MR HEATON:   This, again, was an aspect about which the circumstantial evidence I guess came to the fore in that the evidence was very clearly that the fire was an explosive‑type fire, rather than a slow‑burning one.

BELL J:   Right.

MR HEATON:   That it resulted from a build‑up of gases consistent with petrol evaporating at room temperature into the atmosphere, in a closed environment.

BELL J:   So just so I understand, the acceptance by the two experts that they could not exclude as the source of ignition an electrical incident that, nonetheless, posited that there had been a build‑up of vapour in the house and they were simply saying, well, if there had been an electrical spark, we could not exclude that as the thing that ignited the vapour.

MR HEATON:   Yes.

BELL J:   But they were confident that the fire was the result of a build‑up of vapour of some kind.

MR HEATON:   That is the evidence.

BELL J:   Yes, I understand.

MR HEATON:   And therefore, the finding of petrol traces on the clothing and the shoes worn by the applicant has some evidentiary weight, in the context of a circumstantial case where that is also the evidence.

BELL J:   The court, at paragraph [391], the Full Court referred to the scientific expert’s evidence as that the shoes and pants “had been in contact with liquid petrol within hours before” the times they were tested.

MR HEATON:   Yes.

BELL J:   That does not seem to accord with the court’s earlier summary of Ms Maxwell’s evidence.

MR HEATON:   There was some discussion.  She was certainly asked, and I do not know if I can readily turn up the passage – it is not in the appeal book or indeed in the judgment, but in the evidence ‑she was asked about whether she could comment on that and, as I recall her answer, she said there were too many variables.

BELL J:   Yes.

MR HEATON:   I do not know that I can really take that very far.  There was perhaps some – no, I will leave that alone.  There was another aspect of the evidence, but I will not go to that, it is probably too weak in this context.

BELL J:   Yes.

MR HEATON:   I mean, certainly the evidence from Maxwell in conjunction with the whole of the case – I keep saying that because, in my submission, it is important – but did have some powerful evidence to offer in this case and the fact that liquid petrol, which was her very clear – well, I will qualify that.  She was able to identify 10 of the 12 components that suggested that it was petrol, so she did qualify her opinion by saying, I cannot say it is petrol, but it is likely petrol, probably petrol, whatever the qualitative term was she used, but being found in a liquid form on his clothing, in circumstances where there were limited, I guess, innocent explanations as to how that might have been, particularly in the context of this case, and the evidence of his movements on this day.  So that evidence did have some power to it.

But even in the absence – even if the jury did not accept that it was in fact contact with petrol on that day, the rest of the evidence still provided support for a conclusion of the applicant’s guilt, in my submission.  So again, I come back to, each of these pieces – whatever weaknesses might be identified about the individual pieces can be overcome when it is put in the context of the whole case and essentially then it is a matter for a jury to determine whether what might on the face of it when looking individually at pieces of the evidence appear to be a reasonable hypothesis consistent with innocence remains so when it is put in the context of the whole case is the proper exercise of the analysis by a jury, and indeed by the Court.

BELL J:   Yes, thank you.  We do not ‑ ‑ ‑

MR HEATON:   I am sorry to get up ‑ ‑ ‑

BELL J:   I am sorry, Mr Heaton.

MR HEATON:   I am sorry to get up again but can I just add, in the event that it is important, there were two other aspects – or another aspect of the evidence which touches upon this that my learned junior has pointed out to me, and it is the evidence from Patruno that he smelt petrol when he arrived at the house. 

BELL J:   I think two of the young people said that they smelt petrol.

MR HEATON:   Yes.

BELL J:   Yes.  Yes.

MR HEATON:   Which is another factor that adds some weight to that conclusion.

BELL J:   Yes.

MR HEATON:   Thank you, your Honour.

BELL J:   Yes.  We do not need to hear from you further, Mr Keim.  We are minded to grant special leave, but to confine the grant to ground 1.

MR KEIM:   Yes, your Honour.

BELL J:   Yes.  What is the likely estimated length of the appeal?

MR KEIM:   Your Honour, I think a day would be safer rather than anything less than a day.  I do not think it is necessary to go into a second day.  A lot of it can be reduced to writing.

BELL J:   Yes, very well.  Mr Heaton, you agree with that?

MR HEATON:   Yes, thank you, your Honours.

BELL J:   Yes, very well.  Special leave, confined to ground 1, will be granted in this application.  The parties are invited to approach the registry to obtain the standard directions, which have been slightly modified to take account of the Christmas break.  Yes, thank you, would you adjourn the Court until 10.00 am on Tuesday, 5 November in Canberra.

AT 10.56 AM THE MATTER WAS CONCLUDED