Chaarani v The Queen; Moukhaiber v The Queen

[2020] HCATrans 161

[2020] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M43 of 2020

B e t w e e n -

ABDULLAH CHAARANI

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M44 of 2020

B e t w e e n -

HATIM MOUKHAIBER

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO CONNECTION TO BRISBANE

ON TUESDAY, 13 OCTOBER 2020, AT 11.31 AM

Copyright in the High Court of Australia

____________________

MR P.F. TEHAN, QC:   If the Court pleases, I appear with my learned friend, MR L.Z. RICHTER, for the applicant Chaarani.  (instructed by James Dowsley & Associates)

MS F.R. GERRY, QC:   If the Court pleases, I appear with my learned friend, MR J.L. ANDERSON, on behalf of Mr Moukhaiber.  (instructed by Stary Norton Halphen)

MR N.T. ROBINSON, QC:   If the Court please, I appear with my learned friend, MR C.J. TRAN, for the Crown.  (instructed by Commonwealth Director of Public Prosecutions)

NETTLE J:   Yes, Mr Tehan.

MR TEHAN:   Your Honours, in our submission, this case is the right case to decide an issue of significance to the administration of criminal justice in Australia.  That issue is, can a State offence be an alternative offence to a federal offence?  In our submission, the answer to that issue is affirmative. 

This case is the right case to decide the issue because the only triable issue in Chaarani’s case was whether he was guilty of that element of a terrorist act which provides that protest, advocacy or dissent does not include an act which is intended to cause physical harm to a person or to create a serious risk to the health or safety of the public or a section of the public. 

Mr Chaarani, in the conduct of his trial from start to finish conceded that he was guilty of arson.  The Court of Appeal found, at application book page 346, paragraph 66 of the Court’s judgment, that section 79(1) of the Judiciary Act could operate to pick up section 239 of the Criminal Procedure Act and apply it as federal law.

EDELMAN J: Mr Tehan, do you accept that section 79 would not operate to pick up a provision such as section 239 if that provision, i.e. section 239, were inconsistent, in the section 109 sense of the Constitution, with another federal provision?

MR TEHAN:  Yes, we do, your Honour.

EDELMAN J: Why then is section 239 consistent with the regime throughout the Criminal Code of providing on its own terms for alternative offences? So, for example, in Chapter 5 itself there is an alternative verdict provision in section 93.5, in section 102.1 there is an alternative verdict section, in section 101 itself, in 101.2(5), there is an alternative verdict provision. Why would that not be treated as the Criminal Code covering the field for alternative verdicts?

MR TEHAN:   The issue in this case, your Honour, to answer your question, is whether or not it picks up - section 79 operates in a way to pick up a state of things.

NETTLE J:   Well, that is true.  You have two problems.  First, section 79 does not pick up substantive provisions and, secondly, even if it operates in this case to pick up such a substantive provision, it will not pick it up, as was said in Masson v Parsons - what it picks up is inconsistent with the Commonwealth regime. What Justice Edelman is putting to you is that there is a spate of provisions in the Commonwealth regime providing themselves for alternative verdicts in terms different to those which you say should apply under the State provision. So is there not section 109 inconsistency?

MR TEHAN:   The Criminal Code is not a code as to procedure.  The point that we seek to argue is that the picking‑up provisions of the Judiciary Act do allow for a state of things to be left as an alternative to the offence, the federal offence that we were indicted upon.

NETTLE J:   But as we said in Masson v Parsons, section 79 will not operate to pick up a State privilege if the Commonwealth has implicitly covered the field with its own provisions.

MR TEHAN:   The Commonwealth, your Honour, has not implicitly covered the field in relation to this matter.  The offences that - or the references that Justice Edelman gave, with respect, are references to specific statutory alternatives, but they do not cover the field, so to speak.

NETTLE J:   If section 79 were to operate in the way you say it does, would it not pick up State legislation inconsistent with those specific Commonwealth provisions? 

MR TEHAN:   No, your Honour.  There is nothing inconsistent – there is no claim as to inconsistency in this case.  Subject to any question of inconsistency, there is no reason why a State statute should not continue to apply where a State court is invested with federal jurisdiction. 

NETTLE J:   Well, it would apply, but it is not going to apply in the trial unless it is picked up as a matter of procedure by section 79.  If it is not ‑ ‑ ‑ 

MR TEHAN:   That is true ‑ ‑ ‑ 

NETTLE J:   …..it will not be picked up.  It is a substantive provision.  So what is it you say that picks it up and inserts it into a Commonwealth prosecution? 

MR TEHAN: Section 79 operates in a way which picks it up in this sense – the Court of Appeal found that the only work that section 239 could do would be to pick up – it allowed for the possibility that it could pick up and apply a State offence as federal law, but it could not do so to make a State offence a possible alternative to a federal offence.

The court found that the way in which section 79 operated was to make it applicable only in circumstances where the other offence, so‑called, was a Commonwealth offence and, with respect, in our submission, that finding is wrong. 

We say that is wrong for these reasons. When section 79(1) picks up the text of a State provision, it does not alter the terms of the provision. To interpret section 239 as requiring that the other offence within jurisdiction be a federal offence is a restriction not required by section 79(1). Leading a State offence as an alternative to a federal offence does not add to or detract from the federal jurisdiction of a State court exercising federal jurisdiction.

EDELMAN J:  Mr Tehan, would your submission then have this effect? If one looked at Chapter 5 of the Criminal Code generally, section 93.5 provides for eight very particular offences and provides for alternative verdicts only in relation to very specific other offences under Commonwealth law. But your submission would say apart from that very

specific regime in relation to Commonwealth law there is also - every single State offence that would fall within the terms of section 239 would be an alternative offence.

MR TEHAN:   Yes, that is our submission, your Honour, as long as the case gives rise to it and of course our case clearly gave rise to it. 

EDELMAN J: Yes. So that you would have one test for whether Commonwealth offences are alternative offences, which is the very particular test in the particular provisions, and then you will have an alternative test, which is basically every State offence that falls within the terms of section 239?

MR TEHAN:   Yes. Your Honours, in our submission, in picking up section 239, section 79 of the Judiciary Act did not determine the applicant’s substantive rights.  It allowed for justice to the applicant by permitting the jury to convict him of the offence he said he was guilty of.  As such, it prevented the jury from being placed in an invidious, all or nothing situation regarding his fate. 

This was not a case where, on the facts, the inevitable conclusion of the jury had to be that the applicant was guilty of a terrorist offence.  The fact that all of the elements of arson were not included in all of the elements of engaging in the commission of a terrorist act should not have prevented arson being left as an alternative. 

Section 239 does not refer to elements of an offence but rather to the allegations in the indictment amounting to or including an allegation of another offence. Whether or not arson was a statutory alternative, in our submission it was clearly a practical alternative in this case. Circumstances can well be imagined in which failure to direct the jury of the possibility of a verdict of guilty of a lesser offence than that of which an offender has been convicted may cause injustice to an accused. That will surely be so in general if the lesser verdict is open on the evidence and has been raised as a real possibility by the defence. That was clearly the case here and for those reasons special leave should be granted.

NETTLE J:   Thank you, Mr Tehan.  Ms Gerry. 

MS GERRY:   May it please the Court, we have two submissions…..

NETTLE J:   The Court will adjourn to re-establish the link.

AT 11.46 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.49 AM:

NETTLE J:   Yes, Ms Gerry.

MS GERRY:   Thank you, your Honours.  Our submission is that this is a case for special leave to be granted.  There are important issues to be determined.  Those are the words of the court below at footnote 99.  We have two substantive submissions but without arson as an alternative the trial was unfair, which resulted in a substantial miscarriage of justice.  The implication of arson as an alternative occurred at the point of charge, thus empowering the court to control fairness. 

We repeat the submissions made by Mr Tehan in relation to section 239. Certainly in relation to terrorism, the specific alternatives in the Criminal Code (Cth) do not cover the field. We have set out our submissions in writing on this at page 383 of the application book. Our submission is that arson was a practical and obvious alternative and section 239 does indeed pick up those other alternatives that are implied at the point of charge.

I use that language specifically because section 239 fills a gap in the law governing the exercise of federal jurisdiction where an alternative allows the jury to try the issues fairly, and it is consistent with the general common law right to prevent unfairness, and it is consistent with those offences which are implied at the point of charge.

The importance of that is that at the point of charge is the point at which the executive action takes place in charging the defendant and if the offences…..implied at that point, then it is effectively included in the indictment and thus it empowers the judge to add a State offence to the indictment without the prosecution having to take any further action. 

So it is our submission that section 239 is not inconsistent. It picks up those other alternative offences that could not be specifically provided for, particularly in relation to terrorism which can be committed in a plethora of ways. But it is limited…..picked up by way of being implied, we say, in a way that Wilson sets out implication, not expressly – not a pencil test, but implication in the way that it is set out in paragraph 77 of the judgment of the court below. 

In relation to unfairness, this Court…..not very long ago in James v The Queen, the fairness or unfairness of not leaving an alternative, and I am sure that this Court engaged in the exercise of going back through history and looking at the cases on the point that were not murder or manslaughter cases when James v The Queen was decided.  That is apparent from, frankly, the footnotes.  Clearly James v The Queen cites Gilbert, Fairbanks and, indeed, Parrott going back as long ago as 1913. 

A couple of cases are instructive, in our submission.  In Fairbanks – and I appreciate it is another English case – but in Fairbanks:

the question before the Court of Appeal was whether, on an indictment charging a single count of causing death by reckless driving, an alternative of driving without due care and attention should have been left to the jury. 

So it is perfectly plain that the consideration of fairness applies not just to murder/manslaughter, but to other offences.  But it is importantly…..Lord Justice Mustill, as he then was…..authority…..Parrott which is also in the footnotes of James…..whether anyone…..the facts of…..quote from Justice Phillimore…..:

in the interests of the prisoner, a judge ought to do so; there are certainly many cases where the interests of justice are not met unless it is pointed out to the Jury that they may convict of a lesser offence, or thinking it is a case of ‘neck or nothing’, they may acquit altogether.” 

Interestingly, that was a case of treason.  It was a sailor who went off to Ostend during the First World War communicating information to the enemy.  Equally as serious as terrorism, one may think, but it does appear that he was not hanged and eventually there was an alternative of communicating information rather than treason. 

So, the question of the interests of justice allowing a jury to consider a lesser offence has been considered in cases at the highest level.  In Fairbanks the court went on to consider some principles which we say are applicable here.  Lord Justice Mustill continued at pages 1205 to 1206 and I summarise.  Essentially, he asked the question, does the alternative arise on the way in which the case has been presented to the Court and the answer in Mr Moukhaiber’s case today is yes.  Lord Mustill goes on, had it ceased to be a live issue and the answer in Mr Moukhaiber’s case is no, it was still a live issue, it was live at opening, live at closing and, therefore, the interests of justice are in his favour.  Lord Justice Mustill goes on:

We can also envisage cases where the principal offence is so grave and the alternative so trifling –

…..may not be in the interests of justice for an alternative to be added.  But, here, we submit, the alternative was not trifling as we have set out in our written case.  It was…..example of arson.

EDELMAN J: Sorry to interrupt, Ms Gerry, but can I ask you about precisely what alternatives section 239 is concerned with? I appreciate that in this case it is the alternative of arson but is it concerned only with alternative State offences, on your submission, or is it also concerned with alternative Commonwealth offences?

MS GERRY:   In principle, I suspect the answer is it is concerned with any alternative, so that could be a Commonwealth or a State offence that would be an appropriate alternative that is implied in the indictment where it is an allegation of terrorism.  I am struggling to think of an example.

EDELMAN J: That is because if section 239 is picked up by section 79 then the word “offence” - trial on indictment of an offence must include a Commonwealth offence and so “another offence” must also include a Commonwealth offence.

MS GERRY:   Precisely, and, in our submission, that makes sense.  If one limits it those alternatives which are implied at the point of charge in the way in which we have suggested that implication can occur.

EDELMAN J: What do you say then to the questions that I raised with Mr Tehan that there is a very specific regime for Commonwealth alternative offences that provides for a column, for example, in relation to section 93.5 alternative verdicts? Would this not just impose – superimpose a completely different regime upon the Criminal Code then?

MS GERRY:   In our submission, no.  The practical reality is that the laws of the State are not limited to laws of procedure.  What can be picked up during a trial is the laws that are relevant to the issues in the trial itself.  So, in our submission, the parliamentary draftsman cannot predict every form of human behaviour and the way in which the Judiciary Act works with section 239, in our submission, has to work in that way that I expressed earlier on. …..federal jurisdiction where an alternative allows the jury to try the issues fairly which, in our submission, is consistent with federal law that it is a general common law right to prevent unfairness.

So, the…..that those gaps in the law are filled by available laws – whether they are State laws or other Commonwealth laws that the parliamentary draftsman has not put in a list. Logically, that preserves the general common law right to prevent unfairness but is limited to those alternatives that are picked up in the way that section 239 expresses in that method of implication that we have made our submissions upon. Here, it is easily implied in the allegations that arson was an alternative offence and a very serious offence. So, those would be our submissions on that point.

If I can very briefly in the time available, return quickly to Lord Justice Mustill and unfairness.  Very quickly, he concludes with that – it is not exactly a balancing exercise but those two extremes.  On one hand, the interests of justice demand lesser alternatives are left to the jury and, on the other hand, the interests of justice may not.  But what one has to consider is whether it arises on the case presented to the Court – whether it is a live issue and whether it is not a trifling alternative.  We submit that we fall into all of those categories. 

Those expressions of the human instrument relied on – which is the language in Coutts: 

The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves.

That is what the interests of justice means in this context.  Put another way in Keeble, which is referred to in Gilbert, we submit where the Court says in Keeble – the American Supreme Court: 

We cannot say that the availability of a third option‑convicting the defendant of simple assault‑could not have resulted in a different verdict -

we submit that applies here – that you cannot say that the availability of arson could not have resulted in a different result.  Consequently, particularly for Mr Moukhaiber, the trial was unfair – arson was a practical and obvious alternative.  We have set out in our submissions – particularly at pages 387 to 388 – all the reasons why he was a last‑minute recruit.  That is set out in the sentencing remarks, and arson was the second part of his case.

On the question of the correct time for our asking for that alternative offence, I will simply say this – that we submit the request was made at the appropriate time in accordance with section 11 of the Jury Directions Act.  It flies in the face of that legislation and practice to suggest it should have been requested earlier.

The defence opens its case on arson…..and…..I should deal with the…..in which I said there was a hard argument in my pocket, which, however, and I will put it this way deliberately, however infelicitously expressed it was, it is an indication that the issue had not gone away.  So our submissions are that the trial was unfair, his Honour the trial judge and the Court of Appeal were technically incorrect in relation to section…..a substantial miscarriage of justice has occurred, and we invite the Court to give leave on all grounds, please.  Unless I can assist further, those are our submissions.

NETTLE J:   Thank you, Ms Gerry.  Mr Robinson.

MR ROBINSON: If the Court please. Your Honour, we submit that this is not an appropriate case for the grant of special leave. For the applicants to succeed in overturning the Court of Appeal they must succeed on each of the three issues. First, section 239 of the Criminal Procedure Act permits an alternative offence to be left to the jury on an indictment for a federal offence; second, that arson is an alternative to…..terrorist act; and third, that the trial judge erred in the exercise of his discretion not to leave arson as an alternative.

We submit that the only matter that might, at first appearance, have any interest for a special leave concern is the question of the application of the Judiciary Act and whether or not a State offence could be left as an alternative, and we submit, for reasons I will develop and that the court below found, correctly, we submit, that it could not. 

The second and third issues, the decision by the court below, are plainly correct and do not warrant this Court granting an appeal.  Of course this Court does not sit as a Court of Appeal when these matters have been litigated and decided on that basis.

It is, we submit, relevant to briefly refer to the course of what happened in the proceedings below, and I will not take the Court in any detail to it, but ruling No 9, which has been provided in the authorities list of each of the applicants, at paragraphs 59 and following, set out the trial judge’s description of the events, and first he describes that the issue was raised on the first day of the trial of whether the Crown would put arson as an alternative, and it was made clear that the Crown would not - that is paragraphs 61 and 62. 

Second, Chaarani’s counsel decided to open his defence by admitting arson but putting intention into issue as to whether or not the Crown could establish beyond reasonable doubt it was not protest or dissent, or if protest or dissent, putting a section of the public at risk.  That is paragraphs 63 and 64. 

Third, the matter was not raised of adding by the defence until after the close of the Crown case, paragraphs 65 and 68.  Fourth, his Honour found, we submit correctly, that there would be prejudice to the prosecution, inevitably, by adding the count at that stage, paragraph 69.  Fifth, it would require additional directions, when the directions in relation to the matter were already complex, and that is paragraph 70, and his Honour touched upon the fact that the question of complicity at State law would be different from that under federal law. 

Sixth, his Honour was of the view that the jury would not be left to convict because they were unwilling to let a potentially dangerous person go.  His Honour was of the view that there was no basis to consider that the jury would not act in accordance with their directions and the evidence, paragraphs 71 and 72.

Seventh, his Honour found that there was no unfairness to the accused.  The real issues in dispute throughout the trial had been well and truly crystallised, and his Honour refers to that at 73, 74.  Those arguments and approaches upheld by the Court of Appeal, application book page 356, paragraphs 87 and 357 to 89. 

In our submission, the arguments in this Court about unfairness to the applicants are no more than a rehash of arguments ventilated before the Court of Appeal, and there is no reason for this Court to act in respect to them as a further Court of Appeal of those arguments.

If I can deal with what I would call the Judiciary Act issue, which is part of ground 2, for each of the applicants. Section 239 provides and at – application book 376 it is extracted. But on a trial on indictment for an offence other than treason and murder, and as his Honour Justice Edelman has said to my learned friends, that on the face of it in the exercise of the prosecution of federal offences, the reference to indictment for an offence must there be read and understood as a Commonwealth offence, and, in our submission, therefore also the further reference to “other offence” as appearing in that provision.

In our submission, the Court of Appeal in considering and disposing of the question in that paragraph 66 in application book 346, came to that conclusion after setting out Rizeq and making reference to Masson, and found that 239 was picked up and applied, and at 79 applied in respect to the matter to allow the exercise of the jurisdiction and that in their consideration the court, in our submission, by the paragraph, though not expressed, implicitly accepted that the first reference to “offence” where appearing in 239 was to a Commonwealth offence and, necessarily, by the reference to “it might” in the final sentence of paragraph 66, be able to permit an alternative Commonwealth offence, the court is in fact, in our submission, recognising that the interpretation of the provision in 79 has to be read in the way in which we have submitted in our outline as being translation to read “Commonwealth offence” in the same way in which “court” is read in the use of provisions such as section 79 in dealing with the Federal Court where a State provision referring to courts might apply. 

In our submission, the Judiciary Act does not operate to make arson under…..Crimes Act (Cth).  As is clear from Rizeq it does not apply to pick up and apply a substantive offence which is otherwise applying, as a Commonwealth offence. In the court below there was no point taken that the Commonwealth Code has covered the field and even if 239 might have been able to pick up a State offence, that it would not be able to do so because of conflict with a federal offence and section 109 would preclude it.

We would submit it is an observation of great force and presents a further difficulty for the applicants in this case.  Indeed, we would submit that the addition of that argument demonstrates that this is not a suitable vehicle for that argument because arson is not an alternative under State law, as the authorities set out by the Court of Appeal found, and the trial judge would not leave it, as he in fact made clear.

So in our submission, for the purpose of seeking to ventilate the question of whether 79 allows a State offence, when is added to that the construction that we have submitted was implicit in what the court found and we submit correctly, once the further question of whether or not…..covering the field and, therefore, on the applicants’ argument that, as we follow the submissions of Mr Tehan and adopted by Ms Gerry, every possible State offence which might be said to be available would be an alternative notwithstanding the Commonwealth Parliament has fixed certain only would render this question unsuitable on the facts in this case where, at no point, was an alternative put and at no point was a stay sought on the basis of unfairness and that accordingly, in our submission, there is no reason for this Court to grant special leave.

In our submission, there can be no doubt of the correctness of the decision by the court below that section 239 will not permit a State offence as an alternative to a Commonwealth offence and it is consistent with the observations in Director of Public Prosecutions v Fattal, which has been set out in the authorities, that there is no…..in principle to commend it that the obligation of a trial judge to leave a lesser included an alternative offence to a jury…..State offences or vice versa.  There is in fact no basis for the grant of special leave on that ground.

As to whether arson is an alternative offence, it is well established in authority ‑ we have referred to Pollard and like authorities in our written

submission – that 239 reflects the common law and at common law, as Salisbury has made clear and the cases following which we have referred to, a lesser alternative offence is one which includes in it elements which are found in the earlier offence.

In our submission, the common law was to that effect and 239 has been ruled to that effect and applied as the Court of Appeal described it for some 40 years following that approach in Salisbury, and it is clear that the elements of arson are not encompassed in the engaging in a terrorist act.

Finally, in respect to the reference our learned friends make to Wilson, given that the court below was dealing with the Victorian legislation in 239 and the line of authority as to its construction, which was not in contest – sorry, which was contested, but on the basis that those authorities apparently were not correctly applying the test, in our submission the reference to the English position in Wilson does not assist and no basis, really, has been put to the Court on why, in fact, Wilson should be applied in lieu of Victorian decisions.

Finally, your Honour, in respect to the reply relied upon by Moukhaiber that Nguyen v The Queen allows that even though a prosecutorial discretion is non-reviewable, the way in which it is exercised can lead to unfairness of an accused, and accepting that that may be so, that a…..may be accepted but for the reasons given at the commencement of the oral submissions, there was simply no unfairness.  Subject to any questions from your Honours, in our submission, there is no reason why….. 

NETTLE J:   Thank you, Mr Robinson.  Ms Gerry, do you have a reply?

MS GERRY:   Yes, I do have a short reply.  I do not know if Mr Tehan is before me.

NETTLE J:   I will come back after…..  You first, Ms Gerry. 

MS GERRY:   Thank you.  Brief reply, our submission remains that the case was not left to the jury fully or fairly without the arson.  Nguyen is of assistance because Justices Kiefel, Bell, Gageler, Keane and Gordon all say that the prosecution was putting its case both fully and fairly before the jury. We submit that it is also a judicial duty to ensure a full and fair trial, and the construction of section 239 in Salisbury, in our submission is plainly wrong because it requires an express construction by…..test which is plainly wrong, Wilson is of assistance and, in our submission, is correct. 

In order to properly construe the language of section 239 it has to make those offences thus far implied available, and arson was plainly applied. That was the actual act. They set fire to a building. It was never

anything else.  The issue was motive – whether or not there is a statutory motive.  That is why the trial was unfair, because to use the language in Coutts, the human element relied on to achieve the objective in cases of serious crime is the jury, and to achieve the interests of justice in some cases the jury must be alerted to the options open to it, and that did not occur here. 

Secondly, by way of reply, a refusal of leave would give the impression that Rizeq and Fattal – the Rizeq and Fattal approaches are correct, and, in our submission, they are not, because in those cases the alternative offences were not…..being applied in the same way, so there is a limit on what can be picked up. 

So, Rizeq and Fattal may or may not have been correct in those cases, but they were not correct in principle.  This case enables this Court to consider the principles as to when alternatives are picked up to enable a fair trial and properly picked up by the statutory and constitutional framework.  Those are our submissions.  Thank you. 

NETTLE J:   Thank you Ms Gerry.  Mr Tehan. 

MR TEHAN:   Just a few points in reply.  First…..the Criminal Code is not a code as to procedure; second, the Criminal Code is not an exhaustive Code on leaving alternatives; and, thirdly the alternatives mentioned – at least some of the alternatives mentioned under Part 5 of the Criminal Code would not be alternatives under section 239 if section 239 had application. That tends to indicate that those alternatives can live comfortably with the application of section 239 pursuant to the operation of section 79 of the Judiciary Act in the way in which we contend for. 

Otherwise we do adopt, your Honours, the submissions touching upon the issue of fairness, which have been advanced by our learned friend Ms Gerry. 

NETTLE J:   Than you, Mr Tehan.  The Court will adjourn briefly to consider this matter. 

AT 12.21 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.25 PM:

NETTLE J:   Without expressing any view as to particular arguments or questions arising, the Court is not persuaded that appeals to this Court would enjoy sufficient prospects of success to warrant a grant of special leave.  The applications are dismissed.

AT 12.26 PM THE MATTERS WERE CONCLUDED