Alou v The Queen

[2020] HCATrans 83

[2020] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S341 of 2019

B e t w e e n -

RABAN ALOU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 12 JUNE 2020, AT 10.10 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant.  (instructed by Legal Aid NSW)

MS S.M. McNAUGHTON, SC:   May it please the Court, I appear with my learned friends, MR Y. SHARIFF and MS J.D. ALDERSON, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

NETTLE J:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, we do seek an extension of time in this matter.

NETTLE J:   Is that opposed, Ms McNaughton?

MS McNAUGHTON:   No, it is not, your Honour.

NETTLE J:   Thank you.  You have that.

MR ODGERS:   Thank you, your Honour.  Your Honour, there are four grounds, and I will deal with them in the order in which they appear in the application book.  Ground 1 suggests an error of the sentencing judge in giving primacy to general deterrence and denunciation above the effect of youth.  As your Honours appreciate, the applicant had just turned 15 when the offence was committed.  I am sorry – did I say 15?  Yes, 18, I apologise – 18, your Honour.  Sorry, your Honour, I did not hear your Honour’s question.

GORDON J:   I thought he was older than 15.

MR ODGERS:   Yes, you are absolutely right, your Honour.  I was corrected by my friend that he had in fact just turned 18.

GORDON J:   Thank you.

MR ODGERS:   It was accepted by the sentencing judge that he had been introduced to extremist ideas, extremist views which included the need for violent jihad when he was 17 and as a result had become “deeply radicalised”, to use the language of the judge, when he was 17.

The first aspect of the ground is that the sentencing judge relied on a statement of sentencing principles to conclude that while youth was “relevant” it should be given less weight in light of the seriousness of the offence.  Your Honours will see that ultimate point made by his Honour at paragraph 277 in the judgment at application book 67.  His Honour referred to general principles at application book 44 and 45, but at 67, paragraph 277:

Whilst the youth of an offender is always relevant, it may be given less weight in light of the seriousness of the offence –

and then he goes on, and I will deal with the second aspect of that sentence in a minute.  Until a few years ago, your Honours, the prevailing view among sentencing courts was that the weight to be given to youth did not vary depending upon the seriousness of the offence.

GORDON J:   That has changed, though, has it not?

MR ODGERS:   There are judgments where views expressed by intermediate courts of appeal that for “even just serious offences” you would give primacy to general deterrence, specific deterrence, retribution.  But we say that that itself is a question of general importance.  The High Court has never, so far as I am aware, looked at the significance of youth as part of an instinctive synthesis analysis or at all. 

So we say there is a question of general importance, whether it is appropriate to begin with an a priori principle that because it is a serious offence – in this case, a terrorist offence – that the general approach of giving primacy to youth and rehabilitation should be reversed so that primacy is given to factors pointing towards a more severe sentence.

GORDON J:   Can I just understand your submission, Mr Odgers?  Is it that a question of principle is one that is limited to that involving terrorist offences, or is it more general – that is, its dealing with the interaction between youth and what has been described as youth committing crimes of considerable gravity?  It may be the youth factor is given less weight. 

MR ODGERS:   It is directed more generally. 

GORDON J:   Does that mean that the terrorism offences are just a subset of that sort of category?

MR ODGERS:   Yes, your Honour, that is correct.  The reason we say that is because his Honour the sentencing judge referred to general principles about serious offences and the Court of Criminal Appeal referred to judgments of the Victorian Court of Appeal and the New South Wales Court of Appeal where that kind of language had been adopted for serious offences or - serious offences involving serious gravity – language like that. 

NETTLE J:   But terrorism offences do raise special considerations, do they not?

MR ODGERS:   My answer to your Honour is that a proper approach is to look at the circumstances of the particular case and to look at whether, in a particular case, there is a particular need, for example, for general deterrence or a particular reason for believing that a deterrent sentence is likely to be effective in the circumstances.  So the short answer is, your Honour ‑ ‑ ‑

GORDON J:   Is that right?  That is why I asked you earlier whether terrorism offences were just a subset or, in effect, a special category.  If one looks at Lodhi and other cases, it would seem that it is the latter.  They are in their own special category. 

MR ODGERS:   With respect, your Honours, the courts that have adopted this analysis of beginning with a generalisation that a particular category of offending requires a particular approach to youth and rehabilitation sometimes give reasons based on generalisations about the nature of the offence.  Sometimes they just adopt a statement that because it is serious, because there is a public interest in trying to stop serious offending just as there is, obviously, a strong public interest in deterring terrorist offences, so it is assumed, therefore, that it is appropriate to give less weight to youth and prospects of rehabilitation and concepts which might point to a lesser sentence.

NETTLE J:   It is not so much giving less weight to youth as giving greater weight to the need for general deterrents in relation to the despicable terrorism offences that we are speaking about.  It is not generally accepted that with terrorism offences, general deterrence is of primary consideration.

MR ODGERS:   Our submission is that we accept that, of course, general deterrence is an important consideration and the more serious the offence, the greater the public interest in deterrence, clearly.  But we also submit that it is true that the more serious the offence, the greater the public interest in rehabilitation and that it is not self‑evident that simply because it is a serious offence – broadly understood – and particularly serious in the case of terrorism – that necessarily less weight should be given to youth and rehabilitation.  

I do take issue with what your Honour put to me.  It is an inevitable consequence of giving greater weight to general deterrents that one gives less weight to rehabilitation and principles of youth and how that bears on the sentencing equation.  It must follow.  The second aspect of the ground, if I could move to it, is ‑ ‑ ‑

NETTLE J:   Does it come to this?  You say there is a question of principle for this Court to decide whether in relation to serious terrorism offences general deterrence or the need for it does not have the effect of relatively reducing the importance of youth and rehabilitation?

MR ODGERS:   Yes, we would say that is one of the issues of general importance raised.  We would prefer to expand it to serious offences generally because we ‑ ‑ ‑

NETTLE J:   We are not talking about serious offences.  We are talking about terrorism offences.

MR ODGERS:   Yes, I understand that, your Honour, and our submission is that, to the extent that the approach to terrorism offences proceeds on the basis that as a general proposition because they are very serious therefore there should be primacy to general deterrence over youth and rehabilitation, we say that raises an important question.

GORDON J:   Sorry, I will let you go on in a moment – that then does put directly in issue, though, the existing intermediate authority about sentencing for serious offences.

MR ODGERS:   It does, absolutely, I accept - the point I made right at the beginning was there has been a move in sentencing in intermediate courts.  About 10 years ago, you really did not see any sorts of generalisations that a class of offence, because it was serious or very serious, you would adopt this a priori approach.  We say that there has been a shift and it is wrong in principle.  It is inconsistent with the idea of individualised justice and looking at an intuitive sentence synthesis of all factors, giving appropriate weight to the competing purposes of sentencing in a Veen (No 2) sense, so we say that that shift is wrong in principle.

NETTLE J:   It is more than 10 years now, is it not, since terrorism offences have been regarded as being of a particular character requiring a particular approach to sentence?

MR ODGERS:   Your Honour, I picked 10 years as sort of a global ‑ ‑ ‑

NETTLE J:   Ten or 20, I think. 

MR ODGERS:   I am not sure I would go that far, your Honour.  I accept there has been a view towards ‑ ‑ ‑

NETTLE J:   Did we not think of the jurisprudence from the UK after they dealt with the earlier ones back in the early 2000s?  Then there was Justice Windeyer in New South Wales, who I think set out the thinking which was subsequently followed by other courts both in New South Wales, certainly in Victoria and no doubt elsewhere?

MR ODGERS:   There was certainly language to that effect and I think it is true to say that the UK courts have provided the major source of this, what I will call, shift in thinking.  I am querying, your Honour, whether it is an appropriate approach given…..approved two principles.

NETTLE J:   It is a longstanding approach that one would hesitate, I suppose, to question.

MR ODGERS:   Your Honour, all I can say is that this honourable Court has never really looked at how you take into account youth even in respect of serious offending and that is the question of genuine importance I seek to ventilate.

GORDON J:   Your ultimate proposition is it is case specific?

MR ODGERS:   Yes, it is.  It is my ultimate proposition but of course my complaint is that the sentencing judge began with a generalisation, applied that generalisation to this case to produce obviously a highly deterrent sentence and that approach was endorsed by the Court of Criminal Appeal based on those relatively recent authorities ‑ that is, querying that approach.

GORDON J:   Sorry to take you out of order, but does ground 4 add anything more to what you just put in relation to ground 1?

MR ODGERS:   Probably not.

NETTLE J:   …..a complete lack of remorse, indeed the contrary ‑ ‑ ‑

MR ODGERS:   Yes, but of course ‑ ‑ ‑

NETTLE J:   Deterrence was paramount, was it not?

MR ODGERS:   Absolute lack of remorse but of course, the submission I make is, you know, a person who is 18, and then they are 20, let us assume they are - there is no question, he was deeply radicalised, it may take time for that person to overcome that process of radicalisation and to mature and to receive enough information and enough to be able to look at it, step back and overcome that radicalisation. 

That is, in my submission, an appropriate way of considering it, and indeed, endorses the proposition that one of the reasons why youth should be given significance is because of the capacity for rehabilitation, that a young person who is immature, who had a simplistic view of the world, is influenced by propaganda to adopt a radical view and acts on it, that it can take time for that young person to realise what they have done and how they have been misled.

Just because, when they are 20 they have not reached that point, does not mean that when they are 50, in this case, that they will not have, long before that, realised the error of their ways and developed remorse.  That is one of the reasons, as I say, why youth is traditionally regarded as significant. 

Another reason, of course, is impact on culpability.  That is the second aspect of the complaint, and I know I have the other grounds to deal with, but the judge, the sentencing judge, essentially proceeded on the basis, on the apparent basis, that immaturity is not a reason for concluding that there is reduced moral culpability and that proposition was endorsed by the Court of Criminal Appeal.

We say that is a question of general importance.  There is every reason to conclude that immaturity, the result of youth, which the Crown conceded was they go together, that it can reduce moral culpability.  How:  because young people, immature people, see things simplistically.  They see it in black and white.  They can be easily manipulated by charismatic people or by propaganda. 

We would say that this is a case where it is reasonable to conclude that is exactly what happened, and that that immaturity impacts on the culpability of the offender, something which was rejected by the sentencing judge, rejected by the Court of Criminal Appeal.  We say it feeds into what should be the proper approach to taking into account youth when sentencing, even for very serious offences like the one before the Court. 

I will move on to the second ground, which is whether the sentencing judge erred in not taking into account the existence of a continuing detention scheme for high‑risk terrorist offenders.  The sentencing judge, in accordance with authority, took the view that it was not to be taken into account.  The Court of Criminal Appeal understood Muldrock to hold to that effect, and applied Muldrock to that effect. 

In our submission, the issue was not finally resolved in Muldrock, which involved different legislation which expressly stated that the scheme in that case must not be taken into account as a mitigating factor.  The attention of the High Court, so far as I am aware, was not drawn to the judgment of Justice Deane in Veen (No 2), where Justice Deane expressed the view that protection of the community is better served by a statutory scheme of preventive restraint rather than by increasing a sentence to incapacitate the offender based on a risk of offending what may be long in the future.

The statutory scheme that Justice Deane talked about is now in place and notwithstanding the sunset clause is likely to continue.  In this case, the sentencing judge gave primacy to “protection of the community” in circumstances where, as your Honour pointed out, there was no remorse where the prospects of rehabilitation at that time were bleak, to use his Honour’s view and if he did not reform obviously he would remain dangerous to the community.  But community protection is generally understood in Australian courts when considered separately from general deterrents and specific deterrents and other purposes to refer to incapacitation of dangerous offenders. 

Justice McHugh talked about that in Ryan.  The evidence before the sentencing judge was that it was impossible to predict decades in the future whether or not this applicant would be dangerous at the time when he was eligible for parole or, indeed, when the sentence expired given ‑ on the assumption we are talking decades.  The Chief Justice accepted in the Court of Criminal Appeal that it was not – that was something you really could not predict given the very lengthy sentence. 

So, the question of general importance that we seek to ventilate is whether the likely or possible existence of a scheme to assess dangerousness at the end of a sentence reduces the need for the sentence to advance the sentencing purpose of community protection in the sense of increasing the sentence because of the possibility of future dangerousness. 

We say that the possibility of future dangerousness is something that can properly be left to such a scheme which can assess, not the possibility but – years in the future, but the actual dangerousness of the offender at the end of the sentence and that is something that should be taken into account when the court is engaging in the intuitive synthesis that is required.

Now, turning to the third ground, the challenge to the validity of section 19AG of the Crimes Act, it is argued that it is invalid because it confers upon a sentencing court a function which impairs its institutional integrity by requiring the court to dispense injustice.  It requires the exercise of judicial power in a manner that is inconsistent with the essential character of a court. 

Now, to make that argument good, there are two aspects that I wish to emphasise.  First, in contrast to Magaming where the legislature had decided that an offence was so serious that a minimum period of imprisonment was required, this provision does not reflect any assessment of offence seriousness. 

The reason I say that is because even if the offence is not particularly serious and the term of the sentence that is imposed reflects this, let us say, a judge says, well, one year is appropriate for this offence, the sentencing court is required to apply an a priori norm regarding the minimum proportion of the non‑parole period and the term, a norm that we say lacks any coherent relationship with the purpose of a minimum period of imprisonment which, of course, is the minimum period that should require to be served in circumstances of the case and where the weight to be given to such sentencing purposes as, for example, rehabilitation will vary when determining the head sentence and the minimum term.

So, we say that the legislation requires – which cannot be based on a legislative assessment of seriousness – simply requires an arbitrary minimum period or proportion between different aspects of the sentence.  In that sense, because it is arbitrary we say it requires a court to dispense injustice.  Of course, it is only a minimum but a court that concludes – and, may I say, in New South Wales, at least, in the vast majority of cases non‑parole periods less than three‑quarters are imposed - it prevents a court for, we say, arbitrary reasons from doing what justice may well require in the circumstances of the case.

NETTLE J:   Thank you, Mr Odgers.

MR ODGERS:   Sorry, was that my final time, your Honour?

NETTLE J:   Final time.

MR ODGERS:   Thank you, your Honour.

NETTLE J:   Ms McNaughton.

MS McNAUGHTON:   Thank you, your Honours.  We say, in relation to the first ground that there are no differences, relevantly, between any of the intermediate courts of appeal and they are well‑established principles that say in serious offences – of which terrorism offences are certainly an extreme example – that youth must take a different status in the normal sentencing principles than it would in other offences – and it is a well‑established principle.  The Chief Justice in the appeal book at page 136, paragraph 131, said:

There is a clear body of authority at the appellate level both in this State –

that being New South Wales:

and Victoria that in sentencing for terrorist offences, the significance of punishment, deterrence and protection of the community means that mitigating factors such as youth and prospects of rehabilitation are given less weight. 

If you say youth is less weight or the others factors have, accordingly, more emphasis on them, it comes out in the same way – that, as opposed to schemes set up for juveniles under 18 with juvenile justice where the rehabilitation of the young person is front and centre – that factors in cases where youths who are either under 18 and behaving in an adult fashion or, as in this case, are an adult behaving in an adult fashion, youth should have less weight and prospects of rehabilitation have less weight.

In MHK, the Victorian case, that was a 17‑year‑old but that was determined according to law and not under the juvenile justice provisions.  That was because the prosecution applied successfully for that to be uplifted and to be dealt with according to law.  In that case, it set out clearly that unless appropriate weight is given to general deterrence and denunciation, the criminal justice system will not have sufficiently discharged its duty to properly express the community’s outrage at the conduct of the respondent and to deter other like‑minded individuals from indulging in the same, or related, conduct.

So, certainly general deterrence is important.  Certainly denunciation is very important for these community – quintessentially, community‑based offences, along with protection of the community and specific deterrence.  We say there is no disagreement between the various courts and even in the case of Webster, which my learned friend seeks to place so much weight upon, that actually involved a child defendant and that was under the regime of a juvenile justice regime where, it said in the judgment, a radically different balancing of the purposes of punishment.

Another case referred to by my learned friend, Azzopardi, a 2011 case, involved multiple bashings and a robbery case.  Whilst my learned friend referred at one point of the judgment, where it was talking about the effect of youth, in fact all of the judges – Justice Redlich and Justices Coughlan and Macaulay agreeing, again said, uncontroversially, that the general propositions which flow from the authorities that they just looked at, is that:

where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. 

So these are well‑established principles for serious offending generally but obviously for terrorist offending as a subset of that.  There is no alternative view.  Even in the case of KT - and Justice McClellan at one point states that the effect of youth never changes.  In fact, further down in that judgment at paragraph 25 even he, who was in the minority, said:

The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity –

So we would say there is no alternative view in the authorities for a significant period of time.  That is ground one.  Ground two in the failure – the alleged failure to take into account the existence of a continuing detention scheme for high risk terrorist offenders, the learned Chief Justice in the decision below said at application book 141, paragraph 149 that the portion from Muldrock was not ambiguous and, indeed, the quote that:

“… The notion that a sentence might be reduced to take into account the existence of a regime outside the criminal law providing for the detention of sex offenders may be thought to have little to commend it as a matter of principle.

The Court in Muldrock made it very clear that that scheme stands completely outside the sentencing process.

GORDON J:   The answer is there is no statutory basis for it to be taken into account. 

MS MCNAUGHTON:   That is right and not only no statutory basis but it goes against all sentencing principles.  It is not a matter of sentencing principles just taken into account at the point that the sentence is being imposed.  Of course, as your Honour says, in section 16A, it is matters that are known to the court.  We would say that there is simply no issue there that would attract the grant of special leave. 

In relation to 19AG – and that is the technique by which, should a court wish to impose a life sentence, it can conveniently start with a minimum non‑parole period of 22 and a half years.  That, we say, is perfectly within the realm of what a legislature can do.  In fact, in Magaming the plurality at paragraph 47 of that decision talks about sentencing discretion in unremarkable, with respect, terms, says:

As the appellant rightly submitted, adjudging and punishing criminal guilt is an exclusively judicial function.  In very many cases, sentencing an offender will require the exercise of a discretion about what form of punishment is to be imposed and how heavy a penalty should be imposed.  But that discretion is not unbounded.  Its exercise is always hedged about by both statutory requirements and applicable judge‑made principles.  Sentencing an offender must always be undertaken according to law.

As Justice Keane said at paragraph 103 of Magaming one sentences by reference to “legislated yardsticks” and:

The provision of those yardsticks is the province of the Parliament.

At 104:

The work of the legislature in laying down norms of conduct and attaching sanctions to breaches of those norms is anterior to the function of the judiciary.

So if the Parliament wishes to have a standby which it says for an offence such as terrorism, and also treason and the like and espionage, 75 per cent non‑parole period, that is a matter for the legislature.

In fact, the case of Hili makes that very clear.  There, the learned High Court examined the applicable statutory provisions, and that is what underpinned the decision in Hili and, indeed, in Bugmy, again, there was close attention to the legislative intention to be gathered from the terms of the Act.  So, even all the sentencing principle cases start at all times with the legislative parameters which are anterior to the judicial discretion on sentence being exercised.  We say there is no special leave point arising from how the legislature has decided to deal with that issue. 

As to point 4 or ground 4, whether or not the sentence was manifestly excessive, yes, this offender would get out when he will be 51, having committed the offence at 18.  But in areas where young people commit crimes of this dreadfulness, with the potential to cause serious injury to members of the public, having armed a 15‑year‑old with a gun, fully loaded, which not only killed one person but could have killed others if that 15‑year‑old himself had not been killed, it is incumbent, in my respectful submission, upon our courts to properly punish and properly denounce such serious conduct because if the courts do not do it, there is no other way in our society for that conduct to be punished and denounced, as well as the importance of general and specific deterrence, as well as

protection of the community.  We say if all of those matters are taken together, the sentence is perfectly proper.

Indeed, to take non‑terrorism examples just quickly, the case of Bilal Skaf, which was indeed multiple gang rapes, that is, three, that was over a period of three weeks when that young man was 18, and he ended up - there were some retrials and some appeals, but he still ended up with 30 years on the bottom. 

Mr Knight, who was responsible for the Hoddle Street massacres, he was 19 at the time of those massacres.  Yes, a number people were killed, seven people were killed, 46 were injured, but those offences only occurred over a 45‑minute period in this 19‑year‑old’s life and he got life with a 27 year non‑parole period.

Ms Shoma, terrorist offence, she attacked someone in their own home.  She ended up, although she was 24, so a bit older, 42 with 31 and a half to serve.  So the courts in these very dreadful, serious cases do give out long sentences and, with the greatest of respect, that is incumbent upon our courts to punish, to denounce, to provide general deterrence and we would say that there was no error in either the sentencing judge or the Court of Criminal Appeal in saying, by majority, that that sentence is appropriate.  Thank you, your Honours.

NETTLE J:   Mr Odgers, any reply?

MR ODGERS:   Yes, just briefly.  Ground 1, I do not accept that there is no judicial - there is no authority supporting the approach for which we contend.  We say there are digital statements that the weight to - in relatively recent judicial statements that the weight to be given to youth does not vary depending on the seriousness of the offence.  We say that is right in principle.  Of course, the more serious the offence the greater the objective seriousness and, necessarily, the longer the sentence that will be imposed. 

But it is a different proposition to say that we also give less weight to youth, where youth might support a conclusion of reduced culpability, it might support a conclusion of increased capacity for rehabilitation.  We are not contending that you get a slap on the wrist.  We are saying that you still give weight to youth and you should, as a matter of principle, and you should not approach it in some sort of generalised way - because it is a serious offence we are going to essentially give it less weight.

The second ground, true it is that the Commonwealth Act does not give a statutory basis, does not say a sentencing court may take into account the fact that there is this scheme of continuing detention.  It does not say

you cannot.  The principle we are supporting is one based on - going back to Veen.  In Veen there was a split between a majority who said protection of the community is an important factor to be taken into account.  If a person is dangerous, you can increase the sentence because of that danger to the community, even if it is difficult to predict whether they are still going to be dangerous at the end of a long sentence.

Justice Deane said that principle should not apply.  A better approach is to have a scheme of preventative detention.  The question we seek to raise is, as a matter of sentencing principle, whether protection of the community should be given less weight than it conventionally is now, post Veen, because of the existence of schemes of continuing detention.  That is the question of general sentencing principle we seek to ventilate.

In respect of the constitutional question, 3, we do not rely on Hili for some proposition relating to the validity of this provision.  We rely on it for the proposition that an a priori norm about the proportion of a non‑parole period to term is not just.  The Court said that.  It is not appropriate to begin with some sort of norm with regard to the proportion between non‑parole period and head sentence.  We seek to ask the question whether under Chapter III to ‑ legislature to impose such a norm breaches Chapter III principles.  I do not know whether that beep means I should stop?

NETTLE J:   You are close to the end, Mr Odgers; very close.

MR ODGERS:   I understand that, your Honour.  I am just going to ask – ask this query of your Honours.  I did not get an opportunity because of the time to say anything about 19AG(3)(a) which is the life ‑ you treat that as 30 years and, therefore, a person who gets life can get 22 and a half years.  I did not say anything about that but of course it is in the written submissions. 

I do say that the ‑ what I say is the absurdity of an offender like the present who would have been much better off if he had got life because of the possibility of getting a non‑parole period of 22 and a half years that that absurdity puts judges in an invidious position of choosing between injustice – either injustice of too long a sentence to get the right non‑parole period or the injustice of an appropriate head sentence in order to get – producing an unjust non‑parole period.  I put that argument.  If your Honours think my friend should be given a chance to respond to that, so be it, but that is all I have to say.  Thank you, your Honours.

NETTLE J:   Thank you Mr Odgers.

We see no reason to doubt the correctness of the articulation by the majority of the Court of Criminal Appeal of the relevant sentencing principles.  Accordingly, we are not persuaded that it would be an in the interests of justice either generally or in the particular circumstances of this case to grant special leave.  The application is dismissed.

AT 10.48 AM THE MATTER WAS CONCLUDED