GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
THOMAS NICHOLLS APPELLANT
AND
THE QUEEN RESPONDENT
Nicholls v The Queen
[2005] HCA 1
3 February 2005 P79/2003
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Western Australia
Representation:
J A Thomson for the appellant (instructed by Mullins Handcock)
S E Stone with L J Vanderende for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
MARTIN GRAEME COATES APPELLANT
AND
THE QUEEN RESPONDENT
Coates v The Queen
3 February 2005
P81/2003
ORDER
1.Appeal allowed.
2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of Western Australia made on 22 October 2002 in CCA 210/00 and in its place order that:
(a)the appellant's appeal to that Court be allowed;
(b)the appellant's conviction be quashed; and
(c)there be a new trial.
On appeal from the Supreme Court of Western Australia
Representation:
M J McCusker QC with J J Edelman for the appellant (instructed by Clark Whyte)
S E Stone with L J Vanderende for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Nicholls v The Queen; Coates v The Queen
Criminal law – Evidence – Admissibility of admissions made off-video during interview with accused – Whether reasonable excuse for not videotaping admissions – Criminal Code (WA), s 570D(2)(b), (4).
Criminal law – Evidence – Admissibility of evidence of prior inconsistent statement of witness – Whether evidence of statement went to issue – Whether admissible as exception to rule against admission of collateral statements – Whether exceptions of bias, interest or corruption applicable – Whether the detail of alleged statement indicating an exception to the collateral evidence rule must be put specifically to the witness in cross-examination.
Evidence – Criminal trial – Prior inconsistent statement of witness – Whether admissible as exception to rule against collateral statements – Admissions allegedly made off-video during interview by police – Whether reasonable excuse for not videotaping such admissions.
Criminal law – Evidence – Whether evidence of prior inconsistent statement hearsay – Whether exception to hearsay rule.
Criminal law – Jury directions – Whether trial judge's direction accorded with McKinneyv The Queen – Appropriateness of reference to possible perjury on part of police.
Criminal law – Evidence – Admissions – Adequacy of trial judge's direction – Whether need for McKinney direction.
Words and phrases – "interview", "reasonable excuse".
GLEESON CJ.I agree, for the reasons given by Hayne and Heydon JJ, that in the matter of Nicholls v The Queen the appeal should be dismissed. In particular, I agree with what Hayne and Heydon…
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.
Continue reading Nicholls v The Queen
Sign in free to access the full text
Details
AGLC
Nicholls v The Queen [2005] HCA 1
Case
[2005] HCA 1
Decision Date
CaseChat Overview and Summary
The case of *Nicholls v The Queen* concerned appeals by Thomas Nicholls and Martin Graeme Coates against their convictions for murder, following a jury trial in the Supreme Court of Western Australia. The appeals were dismissed by the Western Australian Court of Criminal Appeal, and subsequently, special leave to appeal was granted by the High Court of Australia. The Crown's case against Coates, in particular, relied heavily on the evidence of Adam John Davis, who had pleaded guilty to the murder and agreed to give evidence against the other accused.
The High Court was required to determine several key legal issues. Firstly, it considered the admissibility of admissions allegedly made by Coates to police during a break in a videotaped interview, and whether there was a "reasonable excuse" for these admissions not being recorded on video, as required by s 570D of the *Criminal Code* (WA). Secondly, the Court examined the admissibility of evidence of a prior inconsistent statement made by Davis, specifically whether such evidence could be admitted as an exception to the rule against the admission of collateral statements, and if the detail of the alleged statement required it to be put specifically to Davis in cross-examination. This also involved considering whether the evidence was hearsay and if any exceptions to the hearsay rule applied. Finally, the Court reviewed the adequacy of the trial judge's directions to the jury regarding the evidence of admissions and the potential for perjury by police, in light of the principles established in *McKinney v The Queen*.
The Court reasoned that the admissibility of admissions made off-video depended on whether a reasonable excuse existed for the failure to record them. Regarding the prior inconsistent statement of Davis, the Court applied the collateral evidence rule, which generally prohibits evidence that contradicts a witness on a collateral matter. However, exceptions exist, such as where the statement demonstrates bias, interest, or corruption. The Court held that for such exceptions to apply, the specific details of the alleged statement, indicating bias or corruption, must be put to the witness in cross-examination. The Court found that the trial judge's directions on the admissions and the potential for perjury were adequate and did not require a specific *McKinney* direction in the circumstances.
The appeals were dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
In a jury trial conducted in August and September 2000 in the Supreme Court of Western Australia, Thomas Nicholls, Martin Graeme Coates and Amanda Kaylene Hoy were tried and convicted for the murder of Clare Garabedian in 1998. The Western Australian Court of Criminal Appeal dismissed appeals against their convictions. Subsequently, this Court gave Nicholls and Coates special leave to appeal against the orders of the Court of Criminal Appeal.The material facts The Crown alleged that Coates had asked Adam John Davis to pick up Garabedian, who worked as a prostitute, and give her a "hot shot" – a heroin overdose. Garabedian was the key Crown witness in other criminal proceedings against Coates and Hoy. Davis said that, for a payment of $2,000, he agreed to give Garabedian the "hot shot". He said that, using Hoy's car and mobile phone, Nicholls' clothes and a bag of heroin supplied by Coates, he picked up Garabedian one night in August 1998. Posing as a client, he took her to a motel. Davis said that he gave heroin to Garabedian, some of which she injected, and then about an hour and a half to two hours later he gave her another shot of heroin at her request. He then rang Hoy from a pay telephone and told her that Garabedian had used most of the heroin. Hoy said that she would leave a package for him under the driver's side wheel of her car, which she told Davis to park in a side street. Davis said that he subsequently collected a package containing a large syringe filled with heroin from under the wheel of Hoy's car. Some time later, Coates and then Nicholls called Davis separately on the motel room telephone and asked whether he had killed Garabedian. Davis told them that he had not done so. Davis claimed that, about 15 minutes after the telephone call from Nicholls, Coates and Nicholls arrived at the motel room. Garabedian woke up, screamed and tried to make a run for the front door. Coates dragged Garabedian to the ground and Nicholls held a pillow to her face. Davis held her left arm while Coates pushed the syringe into her right arm several times before handing it to Davis, who then injected her in her left arm. Coates then stood on Garabedian's throat. Coates subsequently wiped Garabedian's body with a wet towel and Davis cleaned other areas in the motel room to remove fingerprints. Nicholls collected incriminating items and put them in a pillowcase. The Crown case against Coates was based principally on the evidence of Davis who had pleaded guilty to the murder of Garabedian and had been sentenced to life imprisonment. His sentence was reduced to a minimum of 15 years on the undertaking that he would give evidence against Nicholls, Coates and Hoy. However, the Crown also relied on three other areas of evidence apart from the testimony of Davis:1.admissions allegedly made by Coates during a break in a videotaped interview with police;2.evidence of motive: criminal charges had been laid by Garabedian against Coates and Hoy; and 3.evidence that Coates had relied on his brother-in-law, Trevor John Bloomer, who had offered to testify falsely that he was at Coates' house with him on the evening in question.The Crown case also relied on evidence of association and forensic evidence and telephone records placing Coates in the vicinity of the motel when Garabedian was killed.
Evidence
Evidence Before The Court
The jury found Nicholls and Coates guilty of the wilful murder of Garabedian.1.The admissibility of the evidence of Ross (the collateral evidence rule)The evidence sought to be led from Ross At his trial, Nicholls sought to lead evidence from Ross about a conversation that Ross had had with Davis in Casuarina Prison concerning the evidence that Davis was to give at the trial. Counsel for Nicholls told the trial judge that Ross would say that Davis had told him that he was involved in the murder of Garabedian but that neither Coates nor Nicholls was involved in her death. However, Davis had told Ross that he would give evidence implicating Nicholls and Coates in the murder because the police had offered him a deal if he did so. Counsel said that Ross would also say that Davis said that the police had told him what to say and that he, Davis, "was going to come to court and tell lies about that in order to secure the deal that was offered to him by the police to implicate Mr Coates and Mr Nicholls." Counsel for Nicholls sought to lead the evidence as an exception to the collateral evidence rule. During the cross‑examination of Davis, counsel for Hoy asked:"Have you ever told anybody that the whole story – you've made up the whole story you've told us about the involvement of Coates and Nicholls is a lie? – No, I haven't.That you were told by police what to say? – No.And that you did it so that you would gain a benefit? – No.Never told anybody that? – No.Quite sure about that? – Very sure.Because it all is a lie, isn't it – the whole thing? – No, it's not." Counsel for Nicholls asked Davis:"Did you in a conversation say that the police had told you what to say in order to implicate others? – No.Did you say in a conversation that you had given Clare Garabedian two shots and that Marty Coates knew nothing about it? – No.Did you say in a conversation that the police had offered you a deal if you cooperated and implicated Marty Coates and others in the murder? – No.Did you in a conversation confirm that yourself and Clare Garabedian had been 'an item' for some time prior to her death? – No, never.So none of the things that I have put to you were ever said by you in any conversation to anybody? – No." Counsel for Coates did not put any of these matters to Davis. Indeed, counsel for Coates did not put to Davis that he had told a third person that the story he had told police about Nicholls and Coates being in the motel room where Garabedian was killed was untrue and that Coates knew nothing about the killing. Nor did counsel put to Davis that the police had offered him a deal if he implicated Nicholls and Coates and that police officers had told him what to say. Counsel also failed to put to Davis that Davis intended to give false evidence about Coates' involvement in Garabedian's murder. Nevertheless, counsel for Coates sought to lead evidence from Ross that: (a)Davis had told Ross that "Davis was being encouraged to implicate the others [Coates and Nicholls] and that the others indeed were not there and were not involved and didn't know anything about it"; (b)"[Davis] is telling someone in gaol effectively that he intends to give false evidence, that they [Nicholls and Coates] were not involved and yet he intends to give false evidence"; and (c)"[Davis] will acknowledge in his evidence that he is being encouraged to implicate the others".The admissibility of Ross's evidence