Chew v The Queen

[1991] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P22 of 1991

B e t w e e n -

STEPHEN CHEW

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
TOOHEY J

McHUGH J

Chew 1 22/10/91

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 22 OCTOBER 1991, AT 11.36 AM

Copyright in the High Court of Australia

MR D. WILLIAMS, QC:  I appear with MR I.L.K. MARSHALL, for

the applicant. (instructed by Smith Williamson)

MR J.R. McKECHNIE, QC: If Your Honours please, with my	learned friend, MR A.N. HOPE, I represent the
respondent. (instructed by the Crown Solicitor for
Western Australia)
MASON CJ:	Mr Williams, we have the benefit of lengthy

summary of argument, entitled Supplementary

Submissions on Non-Direction on Intent. Now, as we

understand it, there really is no contest between the parties on that issue. Your submission is it

is a case for the grant of special leave and, as we

understand the respondent's attitude, they consent

to the grant of special leave on that issue.

MR WILLIAMS: Well, if the Court is persuaded by that, I

have nothing further to say on that issue,

Your Honour.

McHUGH J:  Do you press ground 13 in the written

submissions, in the supplementary written

submissions?

MR WILLIAMS:  It is part and parcel, Your Honour, really of

same special ..... It is not, in itself, capable of

separation.

McHUGH J: So, those proposed grounds of appeal, they simply

go to the question of intent.

MASON CJ: 

Mr Williams, I can understand that you were not

prepared to make the assumption that the Court
would grant special leave merely because both

parties thought that it was a case for special

leave, so I follow why you filed the additional

submissions, but I think I can indicate now that

the Court will grant special leave on the intent
question or questions, and unless Mr McKechnie has

to grant special leave so as to embrace grounds 1	something to say against it, we would be prepared
to 4 in your proposed grounds.	Now, are you

pressing the other points.

MR WILLIAMS: 

No, Your Honour.

MASON CJ: 

You are not?

MR WILLIAMS: 

No, Your Honour.

MASON CJ: 

Mr McKechnie, do you have anything to say about

the proposed grounds of appeal?

MR McKECHNIE: It is always difficult, Your Honour, and in

the sense that to oppose part of it is, I think,

going to render the argument in the end, perhaps,

Chew 2 22/10/91

disjointed, it is probably easier if the Court

takes all of the matter on board, but could I

mention a related but unconnected matter?

Your Honours will see in the index to the list of

authorities, a recent decision of this Court of

Criminal Appeal in Lloyd v The Queen and Edwards v

The Queen, which is in the respondent's list of

authorities, that case is now - notice has been

given by Mr Edwards of an application to seek

special leave of this Court and it raises, it would

seem to me, identical questions as to the question

of intent. I only flag it now, Your Honour,

because it may well be convenient for the Court to

consider that matter in due course, but to hear

argument in relation both to Mr Chew and

Mr Edwards, either together or at a close time,

because the issues would appear to be the same,

that is the mental element in 229.

MASON CJ:  Mr McKechnie, in the light of what you have told

us about the Lloyd and Edwards case, it would

appear to us that if an application for special

leave to appeal is going forward, then the papers

might be filed and the three members of the Court, as presently constituted, could look at the papers

without the need for an oral hearing - that is, if
the parties consent to that course - and it may
then be possible for the three of us to make an

order granting special leave to appeal without the

necessity for an oral hearing.

MR McKECHNIE:  I take what Your Honour says. The applicant

has not, as I understand it, asked at this point

for the matter to be dealt with in accordance with

a practice direction, but I am sure that I can

speak with the applicant's counsel - - -

MASON CJ: Well, that is what we had in mind. We thought

that if it is to go forward, you might use your

good offices-to see if the ordinary procedure could

be circumvented and a less costly procedure

adopted.

TOOHEY J: There is perhaps just one point that maybe s~uld

be directed at Mr Williams, Mr McKechnie.	The -
grounds of appeal, as presently formulated,

Mr Williams, culminate in seeking of an order that

the conviction of the appellant be quashed. I am

looking at - the pages are not very clearly marked,

but it looks like - - -

MR WILLIAMS:  Page 48.

TOOHEY J: Yes. Now, depending on the grounds of appeal as

formulated originally, there could be grounds
which, if successful, might lead to quashing of the

conviction. There might be grounds which, if

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successful, would do no more than lead to a

retrial. As the grounds of appeal are now

formulated, what is sought by way of relief?

MR WILLIAMS:  The proposed grounds are meant to be in

substitution for what appears on 48 to 49 under

"Grounds of Appeal", but does not deal with the

other aspects of the notice, so that the orders

sought are still the same.

TOOHEY J:  So we can take it that the orders sought are 4

and 5 as appear on page 48?

MR WILLIAMS:  Yes.

TOOHEY J: Thank you.

MASON CJ:  And you are prepared to rest content on grounds 1

to 4 in the document handed in?

MR WILLIAMS: Yes.

MASON CJ: Very well, the Court will grant special leave to

appeal in this matter, and the notice of appeal

will include the four grounds stated in the

document entitled, Applicant's Summary of

Arguments - Supplementary Submissions on

Non-Direction on Intent.

AT 11.44 THE MATTER WAS ADJOURNED SINE DIE

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