Castle v The Queen; Bucca v The Queen

[2016] HCATrans 189

[2016] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A24 of 2016

B e t w e e n -

TRISTAN KAY CASTLE

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A26 of 2016

B e t w e e n -

JASON LUKE BUCCA

Appellant

and

THE QUEEN

Respondent

KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 31 AUGUST 2016, AT 10.21 AM

Copyright in the High Court of Australia

____________________

MS M.E. SHAW, QC:   If the Court pleases, I appear with my learned friend, MR B.J. DOYLE, for the appellant.  (instructed by North East Lawyers)

MR G.O’L. REYNOLDS, SC:   May it please the Court, in the Castle matter I appear for the appellant, with my learned friend, MR S.G. HENCHLIFFE.  (instructed by Mangan Ey & Associates)

MR A.P. KIMBER, SC:   If the Court pleases, I appear with MS F.J. McDONALD in both appeals for the respondent.  (instructed by Director of Public Prosecutions (SA))

KIEFEL J:   Yes, Ms Shaw.

MS SHAW:   If the Court pleases, we have provided a three‑page outline of our oral submissions, as the Court receives those. 

KIEFEL J:   Yes, Ms Shaw.

MS SHAW: May it please the Court, the appellant Bucca raises two grounds of appeal, which are at appeal book 6, page 2460, and in our written submissions upon which we rely we have dealt with them in this order. Firstly, we submit that having found a misdirection by the trial judge in relation to an out‑of‑court statement made by Mr Bucca, the Court of Appeal erred in applying the proviso in section 353 of the Criminal LawConsolidation Act 1935.

Briefly, there are two aspects to that submission.  As was held in Weiss v The Queen (2005) 224 CLR 300, proviso cannot be applied:

unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt –

of the relevant charge but, critically, that is a necessary but not sufficient condition for the application of proviso as cases such as AK v Western Australia (2008) 232 CLR 438 illustrate.

The first aspect of our proviso submission, and if we are right, the short point is that even if that necessary condition was satisfied, the error made by the trial judge relating as it did to a central issue and potentially having what we would submit is a double whammy effect, was such that the miscarriage can only be viewed a substantial.  We submit that the error committed by the Court of Appeal was that having acknowledged the misdirection by the trial judge at paragraphs 21 and 22 of the judgment in appeal book 6, page 2426 which was to the effect the jury were entitled to treat the out‑of‑court statement as an admission.  Their analysis of the proviso was in effect confined to a conclusory assertion by reference only to aspects of the prosecution case that the appellant’s guilt had been proved beyond reasonable doubt. 

This was the conclusion expressed at paragraph 128 of the Court of Appeal judgment in appeal book 6 at page 2451 and then at paragraph 130 at page 2452 where the Court asserted that the alleged admissions were therefore overwhelmed by the circumstantial case. 

But we submit that what this approach overlooked was that it was not just a case of considering the prosecution case without the out‑of‑court statement in that Bucca’s counsel relied on the exculpatory nature of the statement and the conduct of the appellant Bucca which was connected with it as evidence of innocence.  The Court of Appeal also had to consider whether this was a misdirection or miscarriage on such a central issue that it was substantial.

The second aspect of our proviso submission is that we respectfully submit that the Court of Appeal erred in its consideration of the necessary condition in a number of respects.  We submit that the Court of Appeal failed to observe the natural limitations of a review on the record.  However, in regard to those limitations it was not possible to conclude that the appellant was guilty beyond reasonable doubt.  The Court of Appeal erred by, in effect, accepting the credibility and reliability of a prosecution witness who is called “M” rejecting the evidence of the co‑appellant Castle and by ignoring the other evidence that tended to exculpate the appellant Bucca.

Because the prosecution case was circumstantial, any circumstance consistent with innocence which was not negatived by the other circumstantial evidence entitled the appellant to an acquittal.  This was the point emphasised in Peacock v The King (1911) 13 CLR 619 and on many occasions subsequently. Former Chief Justice Griffith emphasised at page 634 in Peacock’s Case by reference to the observations of Baron Alderson in Hodge’s Case (1838) 156 ER 808:

that a single circumstance which is inconsistent with ‑

a conclusion of guilt:

is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt.

Secondly, we raise a discrete ground relating to the admissibility of evidence to the effect that many months prior to the shooting of the victim, McDonald, and before there was any suggestion of what has been called bad blood, the appellant, Bucca, was seen in possession of three guns.  Put shortly, the submission is that the evidence definitively showed that the only gun that was able to be described with any positive detail by the witness, Ms Pascoe, was obviously not the murder weapon and that the evidence did not reach a threshold level of relevance, if the point of the evidence was to suggest that one of the two other guns was in fact the murder weapon and therefore identified the appellant as the shooter.

The only relevance, therefore, could have been to found a submission that, as the Court of Appeal put it, “The appellant had access to guns.” We submit that this was, in truth, a propensity or tendency line of relevance and because it reflected discreditable conduct it had to pass through the lens of section 34P of the Evidence Act (SA) to be admissible.

KIEFEL J:   How did the trial judge leave this issue with the jury?  Was it on the basis of context of there being drug dealing and that people involved in those activities have guns?  Was it simply contextual or was it more specific than that?

MS SHAW:   It was more specific than that, may it please the Court.  If your Honours go to page 2216 of appeal book 6, the direction his Honour gave was in these terms, at about point 8:

But the prosecution say here some time in November it would seem, potentially a bit earlier I suppose if she’s out with her estimate, sighting three pistols.

Ms Pascoe had given an estimate of it being in about June but there was evidence that she and her father had moved into a Brooklyn Park flat or unit in November and it was prior to that date, but:

One of them she remembered and was able to or said it looked very like another pistol that she was shown in the photograph which could not be a pistol that fired the projectiles but of course she was not able to say very much at all about the other two. 

What she had described was effectively seeing two black pistols in a box, but the evidence from Mr De Laine demonstrated that a Glock 17, which is what his Honour refers to here, was in fact in the photo array of guns that she was shown and she had not selected it.  His Honour went on to say:

So you have a situation where one of the other two could of course be the Glock that was later seen by Ms [M].

We take issue with that because the witness, which we will come to, Ms Pascoe, had been shown a Glock 17 as part of the photographic array and had said there were no features similar to any of the other guns in the photographic array, but in any event what his Honour then went on to say was:

I mean, there’s reason to believe that it was a Glock, the pistol that was seen by Ms [M].

Ms [M] was the witness who said that two to three weeks before the shooting Mr Bucca had produced a firearm which he handed to Mr Gange and Ms M and then it – and gave a description of it.  But that description again was not a Glock 17.  So his Honour’s assertion factually that there was reason to believe that it was a Glock in relation to Ms Pascoe we say was incorrect, and his assertion that it was the pistol that was seen by Ms [M] we say factually was also incorrect.  In fact, Ms [M] described the Glock, for example, as having a silver top, and Ms Pascoe described the pistol as being black.  What they selected as potential from the photo shows did not show any consistency.  So, what his Honour therefore goes on to say is:

I will put it that way, closer to the time of the shooting on 3 February 2013.  So you do have two bodies of evidence there of Bucca in possession of pistols, and they are coming from two different witnesses, and the prosecution would say at a relevant time, a time not too distant from the shooting in February, and once again that’s a matter for you to assess.

So that is the way his Honour left it to the jury.  His Honour had given, I point out, a general warning against propensity reasoning at page 2100 at point 15 where his Honour has said prior to this direction that:

If you find that Mr Bucca did have possession of one or more pistol – because of course there is evidence from two witnesses, [M] and Pascoe, that he did – you should not thereby assume that he is, or was, a person of bad character either because of such possession of pistols, or that he was likely to use a pistol to murder or shoot –

So his Honour did warn against that line of reasoning.  However, the use his Honour made in essence was that this was a matter for them to assess on the basis that there were two bodies of witnesses, namely, Ms Pascoe and Ms [M], but in effect suggesting that the pistol that was seen by Ms [M] was a Glock. 

Your Honours, the relevance, if I can perhaps go to it, which is out of order on our outline, but perhaps if I address it from the point of view of the factual issues that underpin that direction, and we have summarised this in our written outline under point 4.1 and following – I am sorry, under 5.1.  I point out there was an objection taken to this evidence by counsel at the outset at appeal book 33 to 36, and that is noted by the Court of Appeal at paragraph 84 at 2441.  But the context was that the prosecution ballistics expert, Mr De Laine, had said at appeal book 138 that there were:

potentially five makes or models – makes and models of firearms or handguns –

that could have made the marks on the bullets found at the scene.  He identified those five models and they included two models of a Glock 17 with what he called “an aftermarket barrel” or a “Federal Arms” Glock 17 with an “aftermarket barrel”.

As between these options, the Glock 17 models assume some significance because, firstly, the evidence of Ms Castle, when she was shown a photo of the Glock 17 in cross‑examination, and that was at appeal book 1462 to 1463, she took the view that it was – or expressed the opinion that it was similar to the gun that she had seen Mr Gange, who she said was the shooter, produce just before the shooting occurred at the car wash.  So, it was on that basis that the Glock 17 assumes some importance.

The second aspect of that evidence was, of course, the evidence of M which commences at appeal book - on this topic – appeal book page 398, that two or three weeks prior to the shooting Mr Bucca had brought a gun to the house where Gange and M were staying and passed it to Gange and then M - which he was handing around and which Ms M said she believed Mr Bucca took it and she never saw it again after that.  The challenge made to Ms M, whose credibility and reliability was challenged for various reasons, was that in fact it was Mr Gange who produced the gun. 

She described the gun by reference to photos which are in appeal book at page 1992, appeal book 5.  They are KM‑1, KM‑ and KM‑3.  She ruled out KM‑1 but she said KM‑2 looked very similar but the one she had seen was chunkier and thicker overall - that was at appeal book page 405.  She said KM‑3 was very similar at appeal book 406 and that it was between KM‑2 and KM‑3 but she did not remember anything on the top as shown in KM‑3, which was a reference to the sights of the gun. 

She also did a drawing, exhibit P22  She described the top as dull silver to grey.  After she had given her evidence Mr De Laine was then recalled and he described KM‑2 as a replica of a Cougar semi‑automatic pistol and the KM‑3 as a Glock 32.  That is at appeal book 107.  So, on his evidence neither of the guns that she considered were similar were actually Glock 17s. 

Accordingly, at its highest, it can be said that one of the possible pistols that may have fired the bullets was a Glock 17, based on Ms Castle’s evidence, but the gun about which M spoke looked similar to a Glock 32, albeit she did not recall the sights which appeared to be common to both the Glocks. 

Coming back then to Ms Pascoe, the occasion she described was several months before the shooting and, of course, at that time Mr McDonald and Ms Castle were in a relationship.  Mr Bucca was living with Mr Bristow and they had not yet been evicted from their house at Heather Court and gone to live with Mr Bristow but Ms Pascoe recalled an occasion in which her father had had a discussion with Bucca about guns and on her account she was on the phone at the time and not really paying attention but she claimed to witness the appellant walk out the hallway with three boxes containing guns. 

This evidence is set out at appeal book 916 to 917 and summarised in our written submissions at pages 38 to 41.  Her evidence in‑chief was brief and general and we set it out in our written submissions at paragraph 39 but, in essence, it was that they were black pistols and one of them had a long extension for it, that is, in the box next to the pistol in the box. 

She was subsequently shown photos of selections of handguns and she identified the gun, the detail of which she could recall as No 9 in exhibit P42, appeal book 1898, but this was excluded as possibly being the weapon used in the shooting.  As to the other two pistols, as noted, there were really no details at all.  However, Ms Pascoe had been shown exhibit P42 and exhibit P43 and exhibit P43 included a photo of a Glock 17 as No 2 and exhibit P43 is in appeal book 5 at page 1900.  She said in evidence, at appeal book 930, that none of the 12 photos had features similar to the guns she saw the appellant with. 

We submit in those circumstances that the evidence was not admissible on the basis that the jury could rationally reason that Bucca had been in possession of the murder weapon, even at this time, some months before the shooting and before any relevant animosity.  There is no evidence of any similarity between the other two pistols and any of the five types of firearm that Mr De Laine said could have been responsible.

There is also no evidence of similarity with KM‑2 or KM‑3, the two firearms that Ms [M] said were similar that were produced to her and we submit that indeed there are inconsistencies in the description because of Ms [M] describing a silver top and Ms Pascoe simply saying black.

BELL J:   Did Ms Castle describe a black handgun or a black handgun with a silver top?

MS SHAW:   I will just have to come back to that reference and find that answer.  I apologise, your Honour.

BELL J:   In some respects, it might be thought but it is asking a lot to say of Ms Pascoe that she did not identify a Glock 17, as opposed to a Glock 9 or what have you.  It may be that the evidence had some relevance if there was evidence that the deceased was shot with a handgun – if Ms Castle’s evidence, for example, was that the gun she saw was a black handgun, and there is evidence to establish that at a time, a matter of three or four months prior to the incident, Mr Bucca had access to a black handgun.  I mean, it is a fine line between use for an impermissible propensity purpose and evidence that has relevance for a purpose other than showing that Mr Bucca is a bad man who has access to illegal firearms.

MS SHAW:   We agree with your Honour’s comments.  The submission we make that we submit is borne out by the three High Court decisions of Thompson and Wran, Driscoll and Festa is that, where the issue is identity, which is what the issue in this case was, the description that is given or the observation of the firearm must be capable of proving identity.  That is, if in fact the firearm that Ms Pascoe selected as the one that she considered was similar to the firearm she saw was definitely not the firearm then, in our submission, it cannot assist to throw or make more probable the identity of the shooter.  It might make him someone who may have committed another crime with that firearm or someone who is using firearms in his drug trade, but where the issue is identity it must have the capacity to throw light on identity.

BELL J:   In part, you are referring to the decision where, I think, the possession of housebreaking implements was not relevant to proof of guilt in a case where in fact a person had not used implements of that kind in the commission of the offence.  Is that the one you ‑ ‑ ‑

MS SHAW:   Yes, in Thompson and Wran, the issue was whether or not when two safes had been blown up with explosives the fact that the kit, as it was called, also included an implement that could have opened the safe or some other way of accessing the safe was not admissible because, of course, that did not help to identify the appellant with the particular crime.

BELL J:   Yes.

MS SHAW:   And, similarly, in Driscoll’s Case where there was evidence that a black pistol or a black gun had been fired not long before the shooting at someone else’s feet, the Court held that the firing of that black gun, although in general terms it might somehow not exclude the machine pistol that was actually used, it did not assist in proving identity because it related to a different incident, if you like, even though it was not too long before, and it could not be said to throw light on the identity of the firearm or make more likely that this was the machine pistol that was used in the killing.

Similarly, in Festa’s Case where even though the firearms were not necessarily capable of being used in the series of robberies, his Honour Justice Kirby with whom Justice Callinan and former Chief Justice Gleeson agreed, allowed the evidence in upon the basis that in conjunction with other articles such as a wig and items that were peculiar to a particular modus operandi of the offenders for a series of robberies, they could in that way have the capacity to prove identity.  So, in our respectful submissions, the authorities are clear that unless the firearm or the weapon has the capacity to prove identity of the person for this particular crime and not just crimes generally, then it is inadmissible. 

BELL J:   In a circumstantial case, you contend that absent evidence that a person’s possession of a firearm that might have been the firearm, absent evidence that it was, proof that the person had access to a firearm, which generally speaking might have answered the characteristics of the firearm that was used, that is not an item of circumstantial evidence capable with other matters of establishing the case.

MS SHAW:   Well, critically it is with the other matters because in Festa it did gain some probative value because it was in conjunction with other items at the time that served to throw light on identity.  But if in fact it is just to demonstrate that it is within the genus of items that could have been used in the crime and whether it is a black pistol or whether it is a black gun to make the genus even broader, in our respectful submission, is not sufficient because it does not assist to throw light on the identity of the person to commit that crime. 

It necessarily crosses that line, we submit, towards propensity reasoning that your Honour raised because, in fact, having access to a gun of a genus as a basis to reason that he is the offender must necessarily include an element, therefore we do not know if this was the gun but it might have been and therefore it allows for the reasoning he has access to guns and the propensity line necessarily is employed.

But what occurred here was the evidence of the witnesses actually was to the effect that they describe differences.  It was not suggested that a Glock 17 which the witness was shown, for example, Ms Pascoe, could be the gun.  She said that there were no other features of similarity in relation to those other guns.  So it was not even left – and she described a gun that in fact she considered to be the most similar, that it could not have been the gun.  So in this situation we are not really – and so far as Ms Pascoe’s evidence is concerned ‑ confronting a case which has that more general genus approach as an item of circumstantial evidence that your Honour Justice Bell raised with me.

KEANE J:   But, Ms Shaw, if the evidence that your client had access to a range of handguns had not been given, would not your side have said that that was a fatal deficit in the circumstantial case the Crown was making, that your client was the shooter?  Your side would have said, there is just not even any evidence that our client had available to him a handgun.

MS SHAW:   There are two points if I might say in response, your Honour.  The first is that whatever the argument that there is no evidence that he had a gun at all might very well open up the door for the Crown to lead evidence that in fact he had other guns – open up the door.  But even if it did open up the door, the fact that he has another gun does not make it probative of his identity as the shooter. 

The only relevant submission that the defence could put is that there is no evidence that my client had the gun that is described by Ms Castle or even the one that is described by Ms [M], which was clearly not the weapon used, nor the one described by Ms Pascoe, which was clearly not the weapon used.

So, in our respectful submission, your Honour’s question presumes again, with respect, an absence of evidence of specifics as to the guns described by Ms Pascoe and Ms [M].  So if the defence were putting, for example, there is no evidence that he had access to guns generally, that is to put there is no evidence that he has a propensity to access guns.

KEANE J:   No, it is about the availability to him of the means whereby the shooter, whoever the shooter was, committed the crime.

MS SHAW: If that reasoning was adopted, then that necessarily raises a reasoning, we would submit, of a propensity to access guns and therefore it would have to pass the test of 34P, rather than the test of circumstantial evidence, because if the argument is it is simply being used to show that he was somebody who had access to guns generally then it is a propensity reason and therefore it is discreditable conduct and it comes within section 34P of the Evidence Act and must satisfy the test to make it admissible under that section.

KIEFEL J:   Is the availability ‑ a person having availability to guns really stand as propensity evidence in relation to the commission of a crime?

MS SHAW: It is described as discreditable conduct, and the Court of Appeal agreed it was discreditable conduct under section 34P, and therefore – I can take the Court to that.

GAGELER J:   The Court of Appeal dealt with it under section 34P(2)(a). Are you saying that it should have been dealt with under 34P(2)(b)?

MS SHAW:   We say under both.

GAGELER J:   Is there any ruling of the trial judge?

MS SHAW:   No.  It is simply that he ruled it was admissible.  That is at page 33, appeal book 1, line 27.  He simply said:

I am very firmly of the view that this evidence is admissible and I decline to exclude it in the exercise of any discretion.

So there was no ruling from the trial judge.  The defence argument was in essence that the descriptions given were different and, secondly, that because the sighting of the guns was so many months before there was no specific connection with the crime.

KIEFEL J:   But all the evidence that you have pointed to which tends to show that it was not the gun in question goes to show, does it not, that it was not highly prejudicial?

MS SHAW:   Well, the way the judge left it, we submit, was highly prejudicial.  In the passage I took the Court to, what his Honour said was effectively that it may well have been the Glock that Ms [M] described.

KIEFEL J:   So it is more a question of the way in which the judge described the evidence, rather than a question of pure admissibility.

MS SHAW: Well, we submit that it is discreditable conduct because it is inherently prejudicial to have access to guns, and here the prejudice had a practical effect in addition because of the way the judge left it. So, in effect, the prejudice is it leaves open a line of reasoning that because the person had access to guns he has a propensity to access the gun that was used in the shooting and, if he has a propensity to access the gun used in the shooting, he has propensity to be the shooter, and it is that dangerous reasoning that, in our respectful submission, must be confronted under section 34P.

That necessarily means that the correct directions if they are to be given as to use, that is, permissible use is required but, more importantly, clear directions as to the impermissible paths of reasoning if it is going to be relied upon on the basis that it is permissible to use it as a general propensity to access guns and therefore a basis to conclude he may have exercised that propensity.

BELL J:   I thought you accepted that the trial judge did give an adequate direction respecting the non‑use of the evidence for a prohibited propensity purpose.  Your complaint is with the admissibility, having regard to the terms of 34P, is it not?

MS SHAW:   Yes, it is.  But if it was to be – my submission is, if it was to be used for a specific propensity purpose, that propensity purpose had to be identified, and the impermissible route through accessing guns as opposed to the general direction his Honour gave, namely, you cannot rely on it to show he is a person who has a criminal propensity ‑ ‑ ‑

BELL J:   I do not think it was being used for the purpose of showing a tendency to access guns of this kind.  The use that was being made was that it was open to the jury to reason that, among the circumstances relied on by the prosecution, was that this accused had access to a handgun and that a handgun had been used to kill the deceased.

Now, the prosecution may not have been able to establish that it was the handgun but, if the prosecution could show that the accused had access to a handgun at a time reasonably proximate to the time of the events and that is within, on this instance, a few months, the use that was being made on that view was not necessarily a propensity use.  They were not inviting the jury to reason he is likely to have killed the deceased because he is a man who used guns, but rather one of the strands in our circumstantial case is that he had access to a weapon of the kind that was used to kill the deceased.  They are two different forms of reasoning.

MS SHAW:   In our respectful submission, there are two points that we take issue with.  The kind that your Honour is contemplating is merely a pistol or a shape that might, indeed, clearly not be the murder weapon and if that is right then it means that the actual reasoning being adopted is propensity reasoning because if it is not the murder weapon the step to identify him as the offender must include a propensity to access other guns and, indeed, to access the murder weapon because unless you can show that he accessed the murder weapon, unless you can show that it throws light on the probability of him accessing the murder weapon then it is not a circumstantial fact that adds to any of the other circumstances.

BELL J:   I think I understand the argument.

NETTLE J:   Could I just ask you, did Ms Pascoe’s evidence exclude the possibility that the weapon or at least one of the weapons which she said she saw could have been one of the five kinds of firearm identified by the examiner of firearms as the murder weapon?

MS SHAW:   It excludes the Glocks and that was one of the five – two of the five and there were no others that were included.  In effect, she identified one that was excluded and she said there were no similar features to any of the others.  The others were the Glocks that were in – or two Glocks that were in the particular photographs.

NETTLE J:   So, in effect, her evidence was that what I saw, these are my words, were weapons which could not have been any one of the five firearms that was possibly the murder weapon.

MS SHAW:   That is our submission because the one she could identify was not and she was shown sheets that had other weapons and there were no features similar. 

NETTLE J:   That evidence was not dependent upon what Ms Castle said about what she saw of the weapon, it was simply by comparing Ms Pascoe’s evidence with the evidence of the examiner of firearms. 

MS SHAW:   Yes, and with the sheets of photographs she was shown.

NETTLE J:   Yes, thank you.

MS SHAW:   Perhaps we can add to our submission, your Honours, that importantly – if I might briefly be permitted to refer to what the Court – and I will just give the Court the relevant passages in those High Court decisions of Thompson and Wran (1968) 117 CLR 313. The emphasis by the Court in each case, as I have said, was identity and, in the joint judgment of Chief Justice Barwick and Justice Menzies, his Honour at page 315 indicated that as part of the evidence to identify the prisoners with the crimes, possession of the kits for opening safes was sought to be led. His Honour said at 316 at the bottom of the page:

in the absence of some special connexion –

they were inadmissible in addition to being unable to identify the prisoner with the crime.  At page 317, line 9, “beyond telling the tale of their criminal propensity”.  Similarly, his Honour Chief Justice Barwick in Driscoll (1997) 137 CLR 517, Justice Gibbs at page 332 pointed out that:

The crucial issue in the case was one of identity . . . The fact that the applicant had a number of weapons –

in his possession:

was not probative of –

him having committed the crime.  Similarly, in dealing with the incident involving Moore at page 335, line 2, the incident in which the “black gun” was used, it was not shown to have had any connection whatever with the death of Maloney and, therefore, it showed the applicant had a gun and was prepared to use it and that this was propensity use.

Your Honours, in our respectful submission, bearing in mind the provisions of 34P(2), not only must the evidence to be admissible pass the test of 2(a) or 2(b), but under subsection (3), the trial judge must be able to separate the prejudicial effect from probative value and that reads, subsection (3):

In the determination of the question in subsection 2(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

In other words, where with Mr Pascoe it was so many months before and where her evidence can only go to a propensity to access guns, in our respectful submission, it did not have the necessary probative value and directions would not have been able to separate the use.

If I might turn to ‑ bearing in mind the time ‑ our other ground of appeal relating to the misapplication of the principles relating to the proviso, we set out and we deal with the context in which this argument is addressed in our oral outline at paragraph 2.  I will not go through the various ‑ ‑ ‑

KIEFEL J:   The view that the Court of Appeal seems to have taken is that the objective telephone communications evidence overwhelmed the errors that the Court of Appeal identified.  What is the telephone communications evidence, put at its highest, and do you rely as a possible explanation of it at 4.2(d)(1) of your outline on the possibility that mobile telephones were exchanged or used by someone else to overcome that evidence.

MS SHAW:   Not only that, but there was specific evidence that Mr Gange had more than one phone and, indeed, had used more than one phone on that particular night, that is, there were two text messages coming from Mr Bucca’s phone to Mr Gange but did not appear on Mr Gange’s phone and so it was accepted that he had at least two phones that were in use.

The second aspect of that was that, as the defence put to the jury, this environment in which these people operated - they were drug dealers, in particular, Mr Gange’s friend, Mr Grace, who was not called, was a person doing his drug dealing and the potential was for Mr Grace to have actually had that particular Gange phone because Mr Gange and Ms M were at Mr Grace’s house from about 6.30 that night.  So that was but one explanation or one hypothesis that was required to be excluded, or that the defence raised and the most important hypothesis though ‑ ‑ ‑

KIEFEL J:   What is the key element that the Court of Appeal are identifying in the telephone communications evidence as critical to that period leading up to the time of the murder?  Was it that Mr Gange’s phone was ostensibly in use and placed at a different point than the car wash?

MS SHAW:   That is right and, of course, Ms Castle said in her evidence that Mr Gange was in the car and that Mr Bucca’s phone had been left in the car.  These were the hypotheses that had to be excluded.  So, in our respectful submission ‑ ‑ ‑

KIEFEL J:   And the hypothesis about Mr Gange not being the – given that there was, I do not think, any challenge to the evidence about where Mr Gange’s phone was being used from, the hypothesis that you say had to be excluded is that someone else was using it at those locations at the relevant time?

MS SHAW:   That is right.  And, in addition, there were two locations, Cadell Court and Sapphire Crescent, which involved the same phone tower so that the evidence in terms of where the calls were coming from, the defence argued, could well have been Mr Grace looking for Mr Gange by using his phone.  So the critical point was that it was undisputed that Mr Gange did have another phone and it was undisputed that it had been used on that night and it was undisputed that that could well have been a prepaid phone and there are no records for prepaid phones.  And it was undisputed that, according to Ms M, Gange may well have had more than – or two to three phones.  The police were originally told he had four.  So there are a number of explanations raised that, in effect, were consistent with Ms Castle’s evidence.

KIEFEL J:   Could I ask you this:  it is a little difficult, just reading the Court of Appeal’s judgment, to identify where the phone towers were and what that means about an address.  Was there any assistance given to the jury which would be useful for our purposes?

MS SHAW:   There was a plan, exhibit P3, at appeal book 1732.  That, in essence, showed the towers but it really was not definitive as to the range of the towers.

BELL J:   P3, in our appeal book, is quite illegible.  There is another map that just shows the phone towers that relate to the suggestion that Mr Gange was in Mr Grace’s premises.  I think it is P18, on page 1777.  Now, that shows the Klemzig and the Hampstead Gardens towers and one can see Gosfield Drive.  That is the location of Mr Grace’s home at which Mr Gange was staying.  Is that right?

MS SHAW:   Well, Mr Gange and Ms M went there at 6.30.  They actually lived and had a lease at Sapphire Crescent, Highbury.  So that is why there was this movement throughout that period.

BELL J:   But, relevantly, the evidence was the phone calls picked up ‑ if that is the correct expression – at either the Klemzig or the Hampstead Gardens towers were unlikely to have been made or received by a phone close to the car wash where the killing occurred.

MS SHAW:   That is right.  We accept that, yes.  If I can refer to our appeal submissions at paragraph 24, what is set out is a text message from Mr Gange to Mr McDonald on 1 February and the defence relied on that to demonstrate that there was an immediate threat, if you like, to the deceased two days before the shooting.  That conjunction with the other hypotheses raised in relation to Mr Gange or in relation to the hypothesis concerning the tower evidence and the phones, in our respectful submission, meant that there were explanations for the tower evidence that did leave open a hypothesis in respect of that evidence.

But most importantly in relation to the approach of the Court to the out‑of‑court statement, in our respectful submission, what the Court failed to do was, having considered in bullet point fashion the evidence they indicated they relied on at CCA 128.

Your Honours, if I can come to our key point in relation to the application proviso, it relates to the way in which first of all the Court dealt with the evidence led by the Crown but, most importantly, its failure to deal with the exculpatory statement of the appellant.

The Court had accepted at paragraph 3 of their reasons that the statement made by the appellant Bucca, having been left as evidence of a confession, and the failure to direct the statement was inadmissible against Castle was, indeed, an error of law.

Their Honours then at page 2426 acknowledged at paragraph 21 that the way his Honour had left the evidence was to, in effect, leave what Ms Pascoe had described as having been a conversation with the appellant as an admission and to state at paragraph 22:

It is in the nature of evidence of an admission that it attracts the attention of a jury and may significantly influence their deliberations.  In those circumstances it is not possible to apply the proviso unless the other evidence rendered Mr Bucca’s conviction inevitable or so overwhelmed the evidence of the disputed admission that the jury would not have relied on it in any material way.

Their Honours then dealt with the proviso by first of all addressing Ms Castle’s evidence and discussing why they concluded at page 2451, paragraph 127, that it was “so riddled with patent falsehoods that it can be given no weight at all”.  Then we submit that the court dealt with the proviso as against Mr Bucca on the basis of a conclusionary statement at paragraph 128 with six bullet points.  The issue of the statement by Ms Pascoe had been a statement whereby the accused was – or the appellant was saying that someone else was the shooter in a very distraught state.  The court said about that at paragraph 130:

We are also satisfied that the alleged admissions were a minor part of the evidence and were so overwhelmed by the circumstantial evidence against each of the appellants that it is unlikely that they had any influence on the jury’s verdicts.

We submit that that is an inadequate consideration of the proviso by first of all simply concluding that his guilt was established beyond reasonable doubt on the basis of six bullet points, then at 130 concluding that the alleged admissions were a minor part of the evidence and step 3, being satisfied that there was not a substantial miscarriage of justice. 

In our respectful submission, the fundamental consequences of that misdirection by the trial judge was that, first of all, the jury may have been encouraged by the judge’s treatment of the issue to think that the statement was in fact an admission and if they took that view it was potentially sufficient alone to warrant a conviction.

Secondly, and less obviously but no less importantly, the jury were not directed that the evidence being exculpatory was evidence in the case which was inconsistent with the appellant’s guilt and which had to be negative beyond reasonable doubt.  To negative it beyond reasonable doubt the jury would have to conclude that despite the occasion and context and distraught state of the appellant, he was lying. 

Thirdly, and this is to be compared, for example, in a case like Mule v The Queen in this Court where someone might be with their solicitor and through their solicitor they might be giving a statement and that statement is exculpatory.  It certainly can be described as self‑serving and it is.  This too is self‑serving but the ‑ ‑ ‑

KIEFEL J:   Why is it the case, though, Ms Shaw, that because someone’s crime when they are talking about someone having been murdered that it is an indication of their innocence?  Does not this evidence and its importance in this case hinge on the identification of a third person, rather than the condition in which the accused was seen to give the explanation?  Is it not more important in the way in which it was identified in cross‑examination of Ms Pascoe that it identified a third person?

MS SHAW:   I agree, your Honour, and I apologise, I meant to convey that the distress added to the credibility or reliability of the statement as compared to a self‑serving statement which in effect is through the mouthpiece of a solicitor.

KIEFEL J:   Yes, I see.

MS SHAW:   The description of him when he gives this statement by Ms Pascoe and says that a third person is responsible, is he is devastated, so, in our respectful submission, was very much – and this is our third point – very much a centre point of defence counsel’s address that, not only did he indicate that it was a third person, but that his conduct both in relation to Mr Pascoe repeating the denials to a Mr Bristow, being in disbelief when spoken to by Mrs Castle about the arrest of Ms Castle, that defence counsel in effect was putting to the jury, unless you can reject that he pointed to a third person and that was not a true statement, then that in itself raises a hypothesis that has not been excluded.

So, the double whammy effect that we in effect rely on is that, not only was this a direction that left it to the jury to treat it as a confession and thereby permitted the jury to rely on it to convict without even going to any other evidence, the most significant aspect is that it denied to the appellant a potential finding of fact in his favour upon which the jury were entitled to act and entitled to acquit.  It was not that it was necessary for the accused to discount and explain and disprove the inferences relied upon by the prosecution.  Harking back to Hodge’s Case, if at the end of the day there was one inconsistent fact with the hypothesis it built, then the jury simply could not return a verdict of guilty.  So, the accused in this case was denied that route to a possible acquittal.

BELL J:   Coming back to the proviso, if one looks at paragraph 128 on page 2451, two of the bullet points involve an acceptance by the Full Court of the evidence of M, and your contention is that this was a case in which critical evidence was given both by M and by Ms Castle.

MS SHAW:   Yes.

BELL J:   And while the Full Court may have reasoned from objective evidence that Ms Castles’ evidence was glaringly improbable, nonetheless there was an assessment of the evidence of M that really did require seeing and hearing her evidence.

MS SHAW:   That is so.  That is particularly so because she clearly was subject to rigorous challenge by the defence when she was Gange’s partner and the defence were contending that she had a motive to exculpate Gange and Gange was the other hypothesis as the shooter.  It was not just her credibility that was at stake, it was her reliability that was attacked because of her and Gange’s ice addict – ice habit.  They would spend 2,000 to 5,000 a week.  Mr Gange was engaged in dealing in firearms and drugs and she said that it was that the effect of her ice habit was that she suffered psychosis, false beliefs, auditory hallucinations, detachment from reality, paranoia and impaired reasoning.  These references are in footnote 20 of our submissions. 

We agree, with respect to what your Honour Justice Bell says, just as Ms Castle’s evidence was evaluated so too was the court required to consider whether or not Ms M’s evidence was similarly evidence the jury could rely on.  But at the very least, in both respects, we submit that in terms of the application proviso, both of those witnesses fall within the natural limitations that a Court of Appeal has in endeavouring to evaluate oral evidence. 

In this case, insofar as the application of principle was concerned, the court simply did not address Ms M’s evidence at all, even though she was relevant to at least two of the bullet points, in particular, the evidence she gave of a suggested plan – dot point, bullet point 3.  More importantly, it was M who provided, or the Crown relied on to provide a semblance of an alibi because M’s evidence was that Mr Gange indisputably had left the premises at Gosfield Crescent by about two o’clock in the morning and the issue was whether he had returned by the time of the shooting. 

On that critical issue Ms M had said she was sleeping during the night, she was drinking, but in evidence‑in‑chief she estimated the time of 5.30 to 6.30.  When she was cross‑examined as to how you pinpoint that time, bearing in mind she had been asleep, she said that she remembered it because Tammy, who was the partner of Mr Grace who lived there, was getting the children up to get ready for school. 

When it was pointed out to her, well, it was a Sunday, she had to retract that basis for the time and then she offered another suggestion.  Well, I said to myself, thank goodness he was home at the time of the shooting, when I found out about it.  When she was asked in re‑examination, well, what time was that that you were told the shooting occurred, she said seven o’clock and, of course, the shooting was at 6.34, 6.36, and the distance was 16 minutes’ driving time. 

So that challenge to Ms M was critical but also on the defence case the fact that she was shown to have deliberately endeavoured to provide that alibi supported the defence case that in fact he simply was not there.  So, in our respectful submission, in respect of the bullet points that the Court of Appeal considered, each of them was contestable and contentious and they in addition relate to criticisms of Ms Castle as compared to Mr Bucca; for example, her text messages, and they are equivocal as between Mr Gange and Mr Bucca, for example, Ms Castle’s text messages.

KIEFEL J:   At paragraph 4.2(d)(4), you say that the Court of Appeal in the Full Court:

relied on a contestable assessment of Gange’s physical restrictions -

What was the evidence about his physical disability or restriction?

MS SHAW:   There was evidence that he had been badly burnt and that he had difficulty or was in pain with certain movements but it was countered with, well, he is driving cars, he is in high‑speed chases, he is on medication for pain so there was, in effect, evidence that said yes he might have had a disability and he might have been disabled but he is functioning very, very well.  So it was a matter in respect of which - your Honours will note that the court says in that last bullet point that he:

would have [been] hiding in the boot and moving from there into the compartment of the car.

Ms Castle’s evidence was that in fact he had been in the front of the car and had moved to the back.  The assumption or the conclusion that he was hiding in the boot was certainly the Crown case, but again it was a contested fact and the evidence on that topic included gunshot residue, that the gunshot expert said that a firearm fired in the car can reach all parts of the car.  So again the court has included in that dot point what was indeed contested, certainly by ‑ ‑ ‑

KIEFEL J:   Who gave the evidence about his injuries?

MS SHAW:   Ms [M] gave evidence about those injuries.

BELL J:   I do not think the submissions or the reasons of the Full Court ever identify with precision what that evidence was - perhaps if we could just be told where to find it and was it only Ms [M]’s evidence.

MS SHAW:   No, I think there was another witness who gave evidence.  I will just ask my junior to locate it.

KIEFEL J:   Perhaps you could give us a note.

MS SHAW:   Yes, thank you.

KIEFEL J:   Perhaps if your junior could prepare that for us - I mean, during the course of the day.

MS SHAW:   Thank you, your Honours.

KIEFEL J:   Thank you.

MS SHAW:   Your Honours, in terms of the approach to a case which is said to be a very strong prosecution case on the basis of the objective evidence, we call in aid – and I accept that every case is a case for specific analysis – but we do call in aid by analogy the decision of this Court in Gassy v The Queen (2008) 236 CLR 293 where the Court was dealing with a case where the objective pieces of evidence that were relied on by the Crown and two separate mosaics of evidence concerning the accused’s presence in that case in Brisbane and Adelaide were described by, for example, Justice Kirby, as a very “strong” case at paragraph 90.

What the Court, we submit, in particular in the joint judgment of Justices Gummow and Hayne at paragraphs 36 and 37 state is that although the conclusions argued for by the prosecution might provide a route to guilt, their Honours stated that:

The conclusions for which the prosecution argued cannot safely be reached by an appellate court when it can refer only to the written record of the evidence –

because the evidence permitted but did not compel the conclusions in question.  His Honour Justice Kirby, when describing the strong case and

the “mosaic of evidence” as powerful evidence of guilt at paragraph 90, came back to the imperfections of an appellate trial at paragraph 98 and the significance not only of credibility questions but the advantage the jury had in sitting for weeks listening and absorbing the entirety of the evidence.

We point out, and perhaps it is a minor point, that, for example, here the Court of Appeal has misunderstood the participants in that at paragraph 45, appeal book 2434.  They have clearly confused Tammy, who was Grace’s partner at Gosfield Crescent, with the witness Tamara Pascoe.

So, your Honours, in our respectful submission, effectively where the Court of Appeal has not undertaken the consideration of the impact of the misdirection in relation to the out‑of‑court statement is that it failed to consider whether or not the fact that the accused was denied of an exculpatory statement therefore denied him a trial to which he was entitled in terms of what might be called the Mraz context but certainly as a route to acquittal in a Pemble context.

We have in our reply – we point out too that in relation to the significance of that statement by the appellant that was overheard that it was someone else effectively who was the shooter, the Court more recently in this Court in Sio v The Queen handed down this week – discussed how the weight of a self‑serving statement varies according to whether it is made in circumstances where the words and circumstances tend to negative the motive and opportunity of the declarant to lie - not a self‑serving statement in that case but an example of how hearsay statements can gain their weight depending on their circumstances and whether those circumstances negative the opportunity of the declarant to lie. 

Hence in the presence of that being a significant part of the defence case, the court was required to consider it the application proviso but most importantly consider it in two respects:  one, did it deprive the – was it a misdirection such that the accused was deprived of the benefit of the direction that was exculpatory; and, secondly, to consider it in terms of whether or not determining that there was no actual – no substantial miscarriage of justice actually occurred, whether or not the court itself could reject it as raising an hypothesis consistent with innocence.  If the Court pleases, those are our submissions.

KIEFEL J:   Thank you, Ms Shaw.  Yes, Mr Reynolds.

MR REYNOLDS:   Could your Honours give us a moment to get organised.

KIEFEL J:   Your outline is not so much an outline of argument as dot points.

MR REYNOLDS:   I am afraid that is the way my submissions are, not only in this case but usually in every case, your Honour. 

KIEFEL J:   Well, it has the advantage that it does not take as long to read them.

MR REYNOLDS:   No, and I should mention that there is an agreement that my submissions finish by a quarter to one so that my oral submissions will, I hope, be similarly succinct. Now, your Honours, in the written submissions which were filed on my client’s behalf there were originally four points: first of all, what I will call the section 34P point; secondly, what I will call the McAuliffe point; thirdly, the point about the admissions and the proviso; and, fourthly, a point about the unfair summing‑up. 

I do not press the first point and as to the second it will not have escaped your Honours’ notice that the decision in this Court in Miller last week precludes me from putting a submission which attacks the principles in McAuliffe.  So I am down really just to these two propositions and I will deal with the admissions in the proviso first.

The Court of Criminal Appeal – if I can start; this is appeal book 6 at paragraphs 23 to 28 – dealt with the admissions against my client.  Your Honours will see that the two admissions are set out in the quote in paragraph 23 in 1.1 and 1.2.  I will be referring to those two admissions as the “Pascoe admission” and the “Georg admission”.

The conclusion their Honours reached is at paragraph 28, which is in my client’s favour, and the Crown does not challenge that.  So that we have, within the meaning of the standard form proviso, a wrong decision on a question of law.  However, principally at paragraphs 129 to 131, the Court of Criminal Appeal applied the proviso and they addressed, principally, two issues. 

The first is in paragraph 129 where, paraphrasing their approach, they found that the guilt of my client was established beyond reasonable doubt.  Second of all, in paragraph 130, they looked at whether or not the admissions were likely to have had any influence on the jury’s verdicts and they concluded that they were not.

I want to deal with those two limbs separately for ease of exposition.  Can I start then with what is sometimes called in courts of criminal appeal the outcome limb, which is dealt with in paragraph 129.  Now, in that paragraph, if your Honours can go to that, at page 2452 of the appeal book, your Honours will see that they refer several times to “satisfaction beyond reasonable doubt”. 

There is a paraphrase, I would put it, of the elements of the offence.  I do not want to make a big deal about this but if your Honours, for example, were to go to page 2304, which is the document which set out in aide‑mémoire form for the jury the elements of murder by extended joint criminal enterprise, your Honours will see that there is some doubt as to whether elements 1, 3 and 4 are encapsulated within the text of paragraph 129. 

I do not want to make a big point of that and it may be that my learned friend for the Crown says that I am starting to quibble.  But what their Honours do not do – and this is, I submit, not a quibble at all – is their Honours do not, first of all, ascribe to each element particular evidence.  That is the first thing.  Second of all, their Honours do not identify, except by reference to fairly vague descriptors exactly what evidence is being talked about.  They certainly do not set out the evidence or attempt to evaluate it.

So, the first point that I make, with respect, is that what they have done here on this first limb, on this outcome limb, is not sufficient.  What there needed to be was a detailed examination of the evidence, bearing in mind the relevant question, an evaluation of that evidence and the inferences that were open, and taking into account the natural limitations which exist in an appellate court reviewing the record, and they needed to consider each element of the offence, I submit, if necessary, in quite a mechanical way, and then evaluate whether or not, given those limitations, first of all they were in a position to make findings of murder – murder beyond reasonable doubt – without having seen any of the witnesses.

In my respectful submission, it was not appropriate to engage in the outcome limb exercise, the first limb exercise, in the way that they have done there.  It is trite law that in evaluating this first limb, first of all the court must make its own independent assessment of the evidence, and that that must be undertaken on the whole of the record.

Can I give your Honours just some brief references in that regard since it is trite.  In the Weiss Case - which is Weiss v The Queen (2005) 224 CLR 300 at paragraphs 41 and 43 and in the decision of Baida Poultry v The Queen (2012) 246 CLR 92, particularly at paragraph 27 - at paragraph 41 of Weiss and paragraph 27 of Baida – and again we need not go to the text of it; it is trite, but can I just remind you of this, that the task to be undertaken on this first limb exercise is engaged in in the same way that the court considers whether a verdict of a jury is unreasonable or cannot be supported, having regard to the evidence.

Now, your Honours dealt with that issue in the context of an unreasonableness point, if I can put it that way, only last week in the decision in Miller, and I would like to go to that although it is not yet reported.  This is Miller v The Queen [2016] HCA 30. Now, the relevant passages that I want to take your Honours to very briefly are at paragraphs 78 through to 82, and I will not read them out in detail, and I ask your Honours to do that in due course. But your Honours will see that in paragraph 78 it was said, three lines down that:

Determination of this ground in each case required the Court of Criminal Appeal to engage with the evidence and consider for itself the findings that were open . . . The inferences to be drawn from these findings . . . consider whether the prosecution had excluded the reasonable possibility . . . In the event that the Court of Criminal Appeal was satisfied that it was open to find . . . it remained to consider whether the prosecution had excluded the reasonable possibility –

et cetera.  Paragraph 79:

In dealing with each appellant’s ground that the verdict was unreasonable, the Court of Criminal Appeal did no more than refer to its summary of the evidence and the way the prosecution had put its case at the trial.  In no case did the Court review the evidence as it related to the appellant and address the asserted deficiencies –

et cetera.  There is then a summary of the reasoning of the Full Court and the reasoning, I respectfully submit here, is not much – well, is similarly exiguous.  There is a bit more here because there are some dot points but paragraph 82 their Honours conclude – I withdraw that.  They look at what is the appropriate course for the court to take if it finds that – my words, not your Honours’ - the Court of Criminal Appeal’s consideration of the evidence is unduly exiguous. 

It is noted there that it is not usually appropriate for this Court to embark on an assessment of the sufficiency of the evidence to support a verdict in circumstances in which the Court of Criminal Appeal has not undertaken the task.

Now, I will come back to the test that the Court of Criminal Appeal applied on this first limb in a moment but I submit, apropos of paragraphs 129 to 131, that usually I do not put it as an absolute but usually there is going to have to be a very detailed examination of the evidence and, as I said before, on each element of the offence. 

There certainly, I respectfully submit, needed to be so in this case because any examination, even a brief examination of the elements, for example, set out at page 2304 would show that each of those elements was live at the trial and, for that matter, was live before the Court of Criminal Appeal.  There was no shortcut to the sort of examination which needed to take place. 

Although I have referred your Honours to a couple of passages in this Court about the necessary consideration of the evidence, there is not a – it may be that it is because the proposition is so trite but there is not a detailed examination that I have found of how this exercise which goes back to its fons et origo in Weiss about how this exercise is to be conducted.  I have a couple of respectful suggestions there.

MR REYNOLDS:   There was no need to unless my learned friend raised it by way of notice of contention in relation to paragraph 129 because ‑ ‑ ‑

KIEFEL J:   Is there objection to leave to amend at this point?

MR KIMBER:   Yes, there is, your Honour.

NETTLE J:   Mr Reynolds, is the substance of your objection that you say the judge left it to the jury on a hearsay basis?  Is that it?

MR REYNOLDS:   That is part of it, but the former part is that counsel only addressed on a very limited basis very close to what your Honour Justice Bell put, but then when it came to the summing‑up on the point, his Honour invited use of it for an altogether different basis, namely, foresight of possibility, et cetera, of my client knowing that Bucca might murder.

NETTLE J:   Well, it is evidence of that, is it not, without it being hearsay?

MR REYNOLDS:   Well, I submit that it would first need to be put to her that she understood that the reference to “Jas” was a reference to Jason Bucca, and her evidence ‑ ‑ ‑

KEANE J:   But she has given her evidence that she did not.

MR REYNOLDS:   That is right.

KEANE J:   She gave evidence that she did not understand that to be so. That has happened.

MR REYNOLDS:   That is true, but ‑ ‑ ‑

KEANE J:   And then it is up to the jury whether they believe that or not.

MR REYNOLDS:   Well, it would still need to be put as a preface towards reliance upon this evidence, if you are the Crown, that she did understand it in that way.  They did not put that to her, nor did they put to her that she believed that the threat had been made.

Now, the way this case was conducted was that unless those two matters were found against my client that there was not any possible use of this evidence and then, further, the trial judge goes on and, as I have said, invites a hearsay use of it, namely, that she knew that from this text that, in fact, a threat had been made and knowing of that fact she knew of the possibility which again was not put to her in cross‑examination in relation to this document.  So, if your Honours are going to treat this as a live issue ‑ ‑ ‑

KIEFEL J:   I think Justice Gageler wishes to ask you something.

GAGELER J:   Mr Reynolds, I just want to know the nature of the application that is being made.  It seems to me that you are seeking special leave to appeal to raise a new ground, or on a new ground, and the new ground would be effectively a reproduction of ground 2 of your notice of appeal to the Full Court in South Australia that we see at page 2372, is that right or is it something different?

MR REYNOLDS:   On a quick read, I think your Honour is right.

GAGELER J:   So that is your application?

MR REYNOLDS:   I would not confine it that way, your Honour.  The other way I would confine it is my learned friend has de facto run a notice of contention point and he has raised a matter which ought to have been the subject of a notice of contention, and because he has done that I should be permitted to reply to it on its merits in addition.  So, I put it two ways.

KIEFEL J:   The Court will adjourn briefly to consider its position.

AT 4.40 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.42 PM:

KIEFEL J:   The Court refuses the application to amend the notice of appeal and the implicit application for further special leave to do so in the case of Castle.  I take it they are the conclusion of your submissions, Mr Reynolds?

MR REYNOLDS:   Yes, your Honour, other than to refer your Honours to the last sentence of paragraph 55 of the judgment.

KIEFEL J:   Thank you.  The Court will reserve its decision in this matter and adjourns until 9.45 am tomorrow for pronouncement of orders and otherwise until 10.00 am.

AT 4.43 PM THE MATTERS WERE ADJOURNED