Coulter v The Queen - [2014] HCATrans 82

[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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Coulter v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] HCATrans 82
Decision Date

CaseChat Overview and Summary

Coulter appealed to the High Court of Australia against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by a police informant, which Coulter argued was obtained in contravention of his rights under the *Australian Privacy Act 1988* (Cth) and was therefore inadmissible under s 138 of the *Evidence Act 1995* (NSW).

The High Court was required to determine whether the covert recording constituted an unlawful interference with Coulter's privacy, and if so, whether the evidence derived from that recording should have been excluded by the trial judge. This involved considering the scope of privacy rights in the context of criminal investigations and the application of the exclusionary rule for improperly or illegally obtained evidence.

The Court held that the *Australian Privacy Act 1988* does not confer a personal right to privacy that can be invoked to exclude evidence in criminal proceedings. Instead, it regulates the conduct of government agencies. Consequently, the recording, even if it breached privacy principles, did not render the evidence unlawfully obtained in a manner that mandated exclusion under s 138 of the *Evidence Act 1995* (NSW). The Court reasoned that the purpose of s 138 is to exclude evidence obtained in contravention of the law, and the *Privacy Act* did not create a criminal offence or a civil cause of action for the conduct in question. The appeal was therefore dismissed.

Orders