State of Tasmania v Coleman

[2024] HCATrans 88

[2024] HCATrans 088

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H3 of 2024

B e t w e e n -

STATE OF TASMANIA

Applicant

and

NIKIYA COLEMAN

Respondent

Application for special leave to appeal

GAGELER CJ
GORDON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 9 DECEMBER 2024, AT 10.00 AM

Copyright in the High Court of Australia

GAGELER CJ:   In accordance with the protocol for remote hearings, I will announce the appearances.

MR D.G. COATES, SC appears with MS M.C. FIGG for the State of Tasmania.  (instructed by Director of Public Prosecutions (Tas))

MS K.L. BAUMELER appears with MS WILLSHIRE for the respondent.  (instructed by Philippa Willshire, Barrister & Solicitor)

GAGELER CJ:   Mr Coates.

MR COATES:   Thank you, your Honours.  Your Honours, this application involves a fundamental irregular parity in the administration of justice.  At paragraph 92 of the Court of Criminal Appeal’s judgment, it reveals that the court received a letter from the respondent, which the court described as:

a letter . . . in support of her appeal.

It is submitted it is clear from paragraphs 92 to 95 of the judgment that the court accepted the letter and acted upon it.  It is not in dispute that the applicant was not aware of the existence of the letter until the court brought down its judgment.  It is submitted that the failure to disclose the letter and taking it into account without hearing from the parties discloses an apprehended bias on behalf of the court in respect to the respondent’s appeal in relation to both conviction as well as the subsequent resentence.

In particular, there were significant facts in the letter that the applicant says is contrary to the evidence.  In particular, she states in the letter that she had never expected anybody to be home.  This is contrary to her interview with the police that she had gathered someone might be home – that is why four went – and thought further they had all worn masks.  Further, the burglary occurred in a residential place between 7.00 and 8.00 pm in the evening.

The next factor in the letter is that she states that she did not expect for one moment that someone would get hurt.  This is contrary to the evidence that she thought that someone would be there.  It was she who responded – who told Mr Baddeley to chase after the deceased when he was running away.  After seeing Mr Baddeley punch and kick the deceased in the head whilst on the ground, she immediately joined in the violence by tying him up with an electrical cord, including around the neck, then dragging him by the neck, which the pathologist said caused ligature marks, and then kicking him.  It was her responsibility, then, to guard the deceased, and Mr Baddeley then proceeded to kick, punch and hit with a – I think it was a wrench.  So, in our submission, all of those comments were contrary to the evidence.

Further, it is clear from the letter that they accepted her honesty and remorse, and it is submitted that, when looking at the test for apprehended bias, there is a logical connection between the facts – the post‑facts that I have just read out – and an apprehended deviation from deciding the question on its merits.  In particular, the court said at paragraph 67 and, I think, 61, the second stop by Mr Baddeley was “out of the blue” when clearly, it was not – it was a continuation of significant violence.

At paragraph 65, the court says that she did not contemplate the possibility of “further gratuitous violence” when she had, in fact, after the first lot of violence, inflicted gratuitous violence herself.  They state at paragraph 70 that she was an 18‑year‑old who:

knew nothing beyond a plan to steal –

firearms, when clearly, on her own admissions, she told the police that she had thought that somebody would be there, that is why four went, that they wore masks and gloves, the obvious inference being, for a jury, that she knew that there would be someone there to see her.  And apart from when they say:

knew nothing beyond a plan to steal –

firearms, it was her who told Mr Baddeley to chase after the deceased.  So, clearly, a jury could infer from that that she contemplated at least some level of violence.

Further, in the judgment, there is no mention of the fact that she was guarding him after the infliction of violence, and her infliction of violence.  There is no mention that when she was guarding him and Mr Baddeley assaulted the deceased again, that after some time, she said:

“that’s enough now” –

which clearly a jury could infer that, given what preceded, she had a common intention for the infliction of violence on the respondent.  Particularly, she says that the deceased was trying to “crawl away” when the violence occurred.

There is nothing in the analysis by the court of the post‑offence conduct that they left the deceased seriously hurt.  She associated with them afterwards.  She said that she was not – did not feel too bad:

it was a lot of adrenaline.

And she assisted in cleaning the vehicle with bleach the next day.  So, it is my submission, it was clearly open for a jury to determine that the respondent initiated violence by telling them to chase and then joining in, and therefore there was a common purpose to inflict serious violence, of which murder was a probable consequence.  In looking at the letter and not disclosing it, and saying in the judgment, basically, they accept it, then a fair‑minded lay‑observer could readily apprehend that it affected the court’s judgment in determining whether they had a reasonable doubt or not.

Ground 2 sort of morphs into ground 1 slightly, in that they are not taking into account all that material I have just stated.  The Court of Criminal Appeal, in their analysis, did not look at the second step of the test for determining whether the appeal was unsafe and unsatisfactory.  They did not determine, when having found – reached a reasonable doubt, which we say is flawed because they did not consider all of the evidence, they did not consider whether the advantages of a jury could have resolved that.  Paragraph 74, the court merely just says how the jury must have it wrong.

The jury had the advantage, sitting through the entire trial.  They also had the advantage of viewing the respondent’s 80‑minute interview, and comments that the court has made at paragraph 8:

the appellant was aged 18 –

and comments like, he has had “enough now”, and the comments in relation to the violence used, in my submission, was a great advantage to the jury in seeing her video interview.  There is no weighing of that in the court’s judgment against that advantage.

In respect to ground 3, which was the ground in relation to sentence, it is my submission that not only is there an apprehension that the court may have taken it into account, but, in fact, state that they took it into account.  At paragraph 95, they say:

The appellant’s letter is a genuine demonstration of insight into her offending and her contrition.  It speaks highly of good prospects of rehabilitation.

In fact, they contrast that in relation to Mr Flanigan, who was the co‑offender on trial but was acquitted of murder.

GAGELER CJ: So, why is not section 94 of the Sentencing Act a sufficient remedy for you?

MR COATES:   Well, firstly, your Honour, it is not a sufficient remedy because, under subsection 94(4), it has to go back to the court as constituted when sentenced, and therefore, in this case, the court as constituted, we say, has already exhibited apprehended bias.  Secondly, it has to be for:

an error of fact –

So, typically, the correction of sentences – for example, if the prosecutor mistakenly said there was 10 kilograms of cannabis when there was 15 or five – that is what this section is used for.  It has to be:

based on, or contained, an error of fact –

at (c).  There is no error of law.

GAGELER CJ:   What about (b)?

MR COATES: Well, I suppose you could say that it was a failure to conform with the law – I would accept that, your Honour – but then, in my submission, the failure to conform with the law is fatal, because – section 94, because it has to go back, under subsection (4), to:

the court constituted as it was when the sentence was passed –

So, it has to go back to the three same judges.

GAGELER CJ:   And a principle of necessity would apply?

MR COATES:   Yes, your Honour, and then, under (5):

Nothing in this section affects the operation of –

The appeal provisions, that is:

Chapter XLVI –

my Roman numerals are not too good, but under (5), that is the appeal provisions, your Honour.

GAGELER CJ:   Thank you, Mr Coates.  Is there anything more you wish to say?

MR COATES:   If it please the Court.

GAGELER CJ:   Thank you.  Ms Baumeler.

MS BAUMELER:   Thank you, your Honours.  In my submission, in terms of ground 1, there is no identified error insofar as suggested that their Honours did not look at all of the evidence or that they applied incorrect tests.  In my submission, there is an in‑depth analysis through the decision, which commences at paragraph 55 under the heading “Discussion”, and then proceeds through to paragraph 78.  That included an in‑depth analysis of all of the facts.  The court had the interview of the appellant, as she then was at that time.  There was a transcript of it that accurately reflected what the appellant had said to police, and it is our contention that that is all that the court took into account at that point in time in terms of that portion of the judgment.

In relation to the letter, as your Honours will have seen from the submissions that were filed on behalf of the respondent, the letter had – essentially giving evidence from the Bar table – been provided to me, but I had not used it because it was not relevant in terms of the appeal itself, and accordingly would have used it had the court indicated that it was resentencing and sought further submissions.  I was unaware, as indicated in the submissions, that the appellant on her own behalf had also forwarded the letter to the court.  So, it was not a situation where I was aware that the court had it.

It was also not apparent during the hearing of the appeal.  None of the justices referred to the letter while there was discussion in relation to the appeal against conviction.  It is not referenced at any stage in the portion of the appeal decision that relates to the appeal against conviction, and all of the references that are made are relied upon from the interview that took place between the respondent and police at her request.  So, that is the analysis that the court undertook in terms of determining the appeal against conviction.

In our submission, there is nothing to suggest that their Honours were not aware of or did not appreciate what the test was that needed to be applied in relation to an appeal against conviction.  The decision, quite clearly, at paragraphs 55 and 56, enunciates that the court are using the test in M – which, of course, has been then confirmed in Dansie – and that they have also considered Pell.  So, in my submission, there is no error in terms of the analysis that the court then undertook in relation to the facts.

JAGOT J:   Excuse me, where do they make full allowance for any advantage of the jury in their reasons?  Where do they engage with the question of advantage?

MS BAUMELER:   I cannot say that they necessarily engage in relation to that question, but the reality is that the court had exactly what the jury had.  There was an interview, there was not – the accused at the time of her trial did not give evidence.  Effectively, all of the evidence that the court needed to analyse in terms of their assessment of the appellant was the interview.  That was the only evidence that they had before them, which was exactly the same evidence that the jury had before them.  So, in my submission they were effectively in the same shoes as a jury in terms of their analysis of the evidence.

There is also nothing before this Court as to exactly when the Court of Criminal Appeal received the letter that the respondent wrote to the court.  The only reference is at paragraph 92.  There is a reference that it was received in August – well, it does not really say that.  It says:

In August 2024 the appellant wrote a letter to this Court –

So, we are not informed as to when the letter was actually received by the court.  There was no reference to it during the appeal hearing of the matter, and there is no reference to the letter until paragraph 92 of the judgment itself.  In my submission, there is nothing to suggest that the court took account of the letter when examining the evidence and determining ground 1 or the complaint made in relation to ground 1.

In relation to the interview and the matters that the State have relied upon, there was no suggestion that four people went to commit this crime because of a knowledge that there would be somebody home.  That was never suggested to the court.  The evidence in relation to masks and gloves was equally consistent with somebody knowing that there were CCTV cameras set up on the property, because there was some evidence that there had been a scoping out, or a surveillance or a drive‑by, at least, of the property to see what was there earlier, prior to the commission of the offending.  When I say “earlier”, I mean some days earlier. 

In relation to the post‑offence conduct at the point in time that the respondent left the property with the others – and it has to be remembered that this is a rural property that is very isolated that she was driven to by one of the other co‑accused – and that at that point in time, on leaving, there was no knowledge by her as to the exact seriousness of the condition of the deceased.

There was also evidence led at the trial of her demeanour, if I can describe it as that, after, when they were in a taxi, having left the property and left the vehicle that they travelled in at another location, and that she appeared withdrawn at that point in time from the other three co‑accused.  The disposal of the property is equally as consistent as to her knowledge and involvement in relation to the robbery, which there was no quarrel in terms of her being found guilty.

It is the next level of offending and the commission of the offending by Mr Baddeley, which, in our submission, took it out of that common purpose and created a whole new ending, that he carried out a plan of, by, in and of himself, essentially, that was not part of the common purpose that the appellant had initially agreed to be a part of, and it was so in excess, in terms of his level of violence, that it could not be said to be a probable consequence of the initial plan that had been completed at that point in time.

In relation to the letter in relation to sentence, in our submission, section 94 did provide a complete remedy for the State. As has been indicated, it does not affect the appeal grounds or the capacity to appeal if there was not satisfaction at that point in time that the – I am sorry, I am losing my submissions and the section itself ‑ ‑ ‑

GAGELER CJ: I am sorry, are you looking for section 94?

MS BAUMELER: Yes, I am looking for section 94. I have found it; my friend has just handed it to me on the phone. In my submission, effectively, subparagraph (3)(b), (c) or (d) potentially could have been raised as a basis to replace the matter before the court again. In relation to the letter itself, we are thinking about three experienced judicial officers; we are talking about officers of the court who are experienced in ignoring matters that come before the court that are not relevant or for other purposes.

In my submission, there is nothing to suggest that the court took the letter into account beyond sentencing and resentencing of the respondent at that point in time.  That, in my submission, is not unusual.  It is quite common for courts to receive letters from either accused, appellants or someone appearing before them in a capacity where they express their remorse, they express what they have done since the offending.  The process was irregular, but the reception of the letter itself was not unusual, and it would not be unusual for a court to take such a letter into account when they are resentencing.

There was no reason why section 94 could not have been utilised, had the Crown wanted to make further submissions in relation to potential inconsistencies. In my submission, the inconsistencies are not as great as the Crown say they are. There was not evidence that there was a positive knowledge that someone would be present on the property, and on arrival, there were matters that occurred which did not necessarily coincide with someone being present. The gate was locked – that is not necessarily indicative of someone being home, it is more indicative of someone not being home. On the respondent’s case, it was Mr Pyke who went to the caravan – the caravan had to be broken into. Again, that does not necessarily accord with someone being home.

It is consistent that, on the time where the deceased ran from the caravan after it had been broken into, that was the point in time where there was confirmation that, clearly, there was somebody home, and that things flowed from there.  But up until that point in time, there was not any evidence that there was a positive knowledge on her behalf that somebody was home or would be home at the time at the point in time that they attended.

So, in my submission, in terms of the sentencing, the Crown did have the option or the remedy through section 94 to make application to the court, where submissions could have been led in relation to the letter, had they chosen to do so. That was not exercised, but it is not a matter that this Court now needs to intervene in.

GAGELER CJ:   Thank you.  Does that complete your submissions?

MS BAUMELER:   It does.  Thank you.

GAGELER CJ:   Thank you.  Mr Coates, do you have anything in reply?

MR COATES: Yes, your Honour. With respect to section 94, if you made an application under section 94, how would that then resolve – the court would come back, they have already accepted the letter. In my submission, section 94 just cannot resolve it.

Secondly, in relation to them being experienced judicial officers, a fair‑minded observer might take into account that, as Chief Justice Gibbs said in Re JRL; Ex parte CJL:

It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other –

They would ask, why did they not disclose it, and get the Crown to make submissions in respect to it.  In respect to the suggestion that the court had all of the material before it, the court had a transcript of the video interview.  The jury saw the interview.  They also saw the respondent throughout the trial.

A great deal was made by the court that she was 18.  The jury were not in the best decision to analyse the sophistication of her.  And then, although the Court may have referred to a significant amount of evidence, when they start analysing it at paragraphs 55 of the judgment, they do not take into account that this was one continual risk of significant violence.  They do not take into account that they were masked when they got there. 

They do not take into account that she was the person that told them to stop him from escaping.

They do not take into account that she inflicted significant, serious, gratuitous violence after the first run of violence committed by Mr Pyke and Mr Baddeley.  They do not take into account that she then guarded the person.  They do not even comment on the fact that she said “that’s enough now”, and they do not comment on her post-offence conduct.  And finally, in respect to reaching a reasonable doubt, they do not comment on how the jury, being in a better position, would not resolve that doubt.

Finally, in respect to the comments in the letter in relation to:  I never thought there was anybody there; and, I never thought anyone was hurt, a fair-minded observer might, reading the judgment, could well consider that they had taken that into account because, in effect, that is what they have decided.

Please your Honours.

GAGELER CJ:   Thank you, Mr Coates.  We will retire to consider the course we will take in this matter.

AT 10.34 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.47 AM:

GAGELER CJ:   This Court has long acted on the principle that special leave to appeal should be granted to the Crown in a criminal matter “only in very exceptional circumstances” typically involving a question of legal principle of general importance to the administration of justice.  A majority of us are not persuaded that this application for special leave to appeal meets the threshold for the grant of special leave in the application of that principle.

The receipt by the Court of Criminal Appeal of an unsolicited ex parte communication in the form of a letter from the respondent to the court, undisclosed to the Crown or even to her own counsel, was a plain and highly regrettable departure from the principles of natural justice, as to which the relevant principles are clear. The reasoning of the Court of Criminal Appeal discloses that the letter was taken into account on resentencing. The resentencing was accordingly not “in conformity with the law” within the meaning of section 94(3)(b) of the Sentencing Act 1997 (Tas), such that it was open to the Crown to seek to have the sentence varied or rescinded under that section. However, a majority of us are not persuaded that there is a sufficient basis for considering that the letter may have been taken into account in determining the appeal against conviction. The application for special leave to appeal is refused.

Now, is there any application to be made?   Yes, Mr Coates.

MR COATES:   If it please, your Honour.  I would ask that the transcript of the proceedings not be published at present.  The co‑offender’s trials have to take place.

GAGELER CJ:   When are they scheduled for?

MR COATES:   March – there has already been one trial, which – unfortunately during discharge, so it is rescheduled to start at the beginning of March.

GAGELER CJ:   Is there anything you wish to say about this, Ms Baumeler?

MS BAUMELER:   No, thank you.

GAGELER CJ:   Mr Coates, we are minded to stay publication until a fixed date, giving you liberty to apply for an extension of the stay if you are so minded.  Would 30 June be an appropriate date?

MR COATES:   That would be an appropriate date, your Honours.

GAGELER CJ:   All right.  The publication of the transcript is stayed until 30 June 2025.  The Crown has liberty to apply on three days’ notice for an extension of that stay.

The Court will now adjourn until 10.00 am tomorrow.

AT 10.50 AM THE MATTER WAS CONCLUDED