Azzopardi v The Queen

[2000] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S204 of 1998

B e t w e e n -

JOSEPH AZZOPARDI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 APRIL 2000, AT 11.40 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please your Honours, I appear with my learned friend, MR J.W. FLIECE, for the applicant.  (instructed by Patricia White & Associates)

MR A.M. BLACKMORE:   May it please your Honours, I appear with my learned friend, MR R.D. ELLIS, for the respondent.  (instructed by S.E. O’Connor, Director for Public Prosecutions)

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, this application was before the Court on a previous occasion, on 16 April 1999.  On that occasion it was stood over pending the decision of the Court in a case known as RPS v The Queen.

GLEESON CJ:   As I understand it, your submission is that the case is either covered by RPS or the labouring oar would be on the respondent to distinguish RPS and in either of those circumstances, special leave ought to be granted?

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   Let us hear what you have to say about that, Mr Blackmore.

MR BLACKMORE:   I do not necessarily disagree with that.  We have to distinguish RPS.  There are features, we would submit, that do distinguish this case from RPS.  Principally among those is the fact that in RPS there was a clear breach of the Evidence Act found and that direction was not given in this case.  Clearly, in that case, that allowed the court to find miscarriage of justice with no difficulty.

GLEESON CJ:   I have not checked up on the particularity of it but what is the difference between the direction given in this case and that in RPS?

MR BLACKMORE:   They are substantially the same, if I use that term broadly, without going to them individually, but the particular Jones v Dunkel style of direction was not given in this case.  That was the one that particularly attracted the attention of the High Court in RPS.  Now, I know that other directions, consistent directions, were also given in this case to RPS which attracted opprobrium from the High Court.  They said they should not have been given in RPS and they were given in this case.

Our contention is that this case was a different sort of case to RPS.  RPS was a sexual assault case; effectively a “one witness” case.  This case

was a solicit a murder, or attempt murder.  It involved direct evidence.  It involved some circumstantial evidence.

GLEESON CJ:   You may be right about that but it makes it a bit hard to resist special leave, does it not?

MR BLACKMORE:   Well, I think I started with that, that it is difficult to distinguish it here.

GLEESON CJ:   There really only seem to be two courses realistically available to us, Mr Blackmore.  One is to grant special leave to appeal; the other is to proceed, as it were, right now to deal with the merits of the appeal which is a little unsatisfactory.

MR BLACKMORE:   With respect, it would take some time for me to go through each of the directions and try and - - -

GLEESON CJ:   Well, it is certainly not something that could be done within the time constraints that we impose on counsel on occasions such as this.

MR BLACKMORE:   If the Court was of the view – and obviously it has not formed a particular view at this stage – that the directions were such that they were identical to RPS, at least - - -

GUMMOW J:   Well, identity is a philosophical question which is - - -

MR BLACKMORE:   Yes.  In our submission, the cases are just too disparate to be able to relate them as closely as that and without some time to actually go through and explain the differences, it would be difficult without leave.

GLEESON CJ:   All right, thank you.

In this matter there will be a grant of special leave to appeal.  We will adjourn to reconstitute.

AT 11.45 AM THE MATTER WAS CONCLUDED