Cox v The Queen [2011] HCATrans 65
[2011] HCATrans 65
[2011] HCATrans 065
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M89 of 2009
B e t w e e n -
STEPHEN ALAN COX
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
HEYDON J
CRENNAN J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 11 MARCH 2011, AT 11.19 AM
Copyright in the High Court of Australia
MR C.B. BOYCE: If the Court pleases, I appear on behalf of the applicant. (instructed by the applicant)
MR J.D. McARDLE, QC: I appear with my learned friend, MS S.B. McNICOL, for the respondent, if the Court pleases. (instructed by Director of Public Prosecutions (Vic))
HEYDON J: Yes, thank you. Now, where is Mr Croucher?
MR BOYCE: Your Honour, he is another jurisdiction.
HEYDON J: A more important court, is it?
MR BOYCE: No, your Honour.
HEYDON J: Is he intending to come now or at some stage?
MR BOYCE: No, he is not. He is content for me to present the oral argument, if I may.
HEYDON J: Very well, by all means.
MR BOYCE: Thank you. I apologise for his absence.
HEYDON J: That is all right.
MR BOYCE: Your Honours, the special leave question that is raised in this case in some respects harks back to the very question that occupied the attention of the Court of Appeal in Baskerville’s Case, the important case concerning corroboration. That question is must and in particular how corroborative evidence implicates the accused or connects an accused with the crime in order that such evidence constitutes evidence that is corroborative of an accomplice.
Your Honours will know that the danger recognised by the law that lurks in the evidence of an accomplice is that the accomplice may seek to shift or spread blame so as to minimise that person’s role in offending. So it is that as a matter of practice courts warn juries to be circumspect in accepting the evidence of an accomplice or warn that it will be dangerous to convict on the strength of the evidence of an accomplice unless that evidence is corroborated in the material particular. The corroborative evidence will have the effect, so it is hoped, it is submitted, of ameliorating or assuaging the possibility or the very danger that I alluded to earlier, your Honours, that is, the accomplice falsely placing blame upon another.
The risk inherent in an accomplice’s evidence is – and this case concerned an accomplice, the witness Le, upon whose evidence acceptance needed to be made in order for there to have been a conviction, because the risk is more apparent because the accomplice will by his own admission be bound up in the offending and is able to present, generally speaking, a credible story that may be supported generally or by evidence and objective facts and so much was recognised by Lord Reading in Baskerville’s Case at page 666.
That was why the court in Baskerville moved to rule that corroborative evidence must implicate, involve or tend to implicate the accused in the offence because if it does not do so in the instance of an accomplice the danger will still be there because the accomplice is curiously and specially placed to give credible evidence that would otherwise be perhaps objectively supported.
The question is, however, is the accomplice telling the truth about the accused’s involvement. The only evidence that can corroborate or support the accused’s involvement in the offending as related by an accomplice is of course independent evidence that connects or tends to connect the accused with the crimes. Evidence that merely suggests that the accomplice is credible, generally, that is to say evidence that supports the accomplice’s assertion that a crime has been committed will not satisfy the test. Thus it is, it is submitted, that we come to the principle that is at stake in this case.
The question is whether corroborative evidence in the instance of an accomplice must be probative of the accused’s guilt in the sense that it independently connects or tends to do so the accused of the relevant crime or whether it is sufficient that the corroborative evidence credit the accomplice or support the accomplice’s testimony generally. One can see how that issue can matter in the present case.
CRENNAN J: Just taking that point up, at application book 397, paragraph 113 of the Court of Appeal’s decision, are you suggesting that the Court of Appeal has erred in their statement of principle there which they have ‑ ‑ ‑
MR BOYCE: At paragraph 113 was it, your Honour?
CRENNAN J: Yes.
MR BOYCE: Yes. The point that I would seek to invigorate is this. Corroboration may mean, and probably does mean, different things in different contexts. Corroborative evidence in the instance of an immature sexual complainant – corroboration arises in the instance of Longman directions that at least at one point were given in this State. Where the problem is one of reliability corroboration might be given a broader aspect. Their Honours find at 113 by footnoting, amongst other cases, the Court of Appeal case of Kuster at footnote 70 wherein their Honours find:
It is a misconception to think that evidence relied upon as corroboration ‘must itself be probative of guilt’.
It is important to realise that Kuster’s Case was a case – another instance in a different context of corroboration which was the case of disputed confessions and the instance of esoteric knowledge. It is often said that esoteric knowledge in the mind of a confessor, that is knowledge that could not have been gained unless the confessor had committed the crime, is corroboration in respect of another witness but again, of course, that evidence does not need to, in itself, be probative of guilt because it is esoteric knowledge.
CRENNAN J: But does not Kuster follow the authority of Doney and is not the very argument you are putting - was it not rejected in Doney?
MR BOYCE: No. Doney was the adoption by this Court, in my respectful submission, of the learning in Baskerville. Doney was a case involving an accomplice, like this case. The piece of evidence that was putatively corroborative evidence in Doney’s Case was a document in, so it was said, the handwriting of the accused directing the drugs from one place to another, evidence one might have thought that on its face, by its own effect, directly, implicated the accused in the crime.
Now, what I am endeavouring to submit is that their Honours below and in particular – and also his Honour the learned trial judge in this case – have drawn learning on corroboration from different fields, from disputed confessions, from child sex cases, lumped it altogether and treated it as a stand‑alone concept that might also be applicable in the instance of accomplices when ‑ ‑ ‑
HEYDON J: This is a very important submission you are making. I have never heard this suggested before that the meaning of “corroboration” varies depending on the context. It might be right, but is this put in your written submission?
MR BOYCE: It is perhaps not as clearly as it ought to have been because having ‑ ‑ ‑
HEYDON J: You say it should. The definition of “corroboration” varies depending upon the danger to which the warning ‑ ‑ ‑
MR BOYCE: The danger to be ameliorated, precisely. If the danger to be ameliorated in a child sex offence is, if I might put it baldly, one of reliability, well, then one can understand why a broad concept of corroboration might be applied and one might soft pedal, if you like, the aspect of corroboration that is suggested it must necessarily implicate the accused in the crime. If the child sexual complainant is corroborated objectively as to that person’s story, all well and good.
In disputed confessions, as I have endeavoured to submit, the corroboration may not implicate the accused because it is esoteric knowledge, but in the instance of accomplices, where the accomplice is uniquely placed to give an account of the commission of a crime that is consistent with objective facts that may or may not implicate the accused at all, does evidence that would say tend towards reliability, or pulled out of sex cases or evidence that is not probative of guilt by operation of disputed confessions assuage or ameliorate the danger that is apparent in the evidence of the accomplice? The submission is, unless it directly implicates the accused it cannot ameliorate or assuage, or dangerously not ameliorate or assuage the very danger.
HEYDON J: How many authorities would have to be overruled if that submission were to be adopted?
MR BOYCE: A number of intermediate appellate court authorities would have to be overruled but nothing from this Court, your Honour. The last that I have been able to, in my researches – the case where this Court adopted Baskerville was Doney. That was some 20 years ago and as I have said – whereas I have submitted in my submissions, since that time in the 20 years or so that has elapsed, in my respectful submission, there has grown up what I would perhaps rather – hopefully not rudely describe as a welter of intermediate appellate court decisions that are referred to by their Honours – both the learned trial judge and their Honours below – that do not seem to speak with one voice and do not seem, with the greatest of respect, your Honours, to provide a consistent means or a clear means by which trial judges day in and day out can, in the instance of an accomplice case or, indeed, any case have a clear rule to apply.
CRENNAN J: Confined now to circumstantial evidence, what are the cases which are not speaking with one voice on this issue?
MR BOYCE: Can I take the high point of the cases or the authority that stands against me, if I may firstly? The high point there would be, for instance, the case of R v Taylor (2004) 8 VR 213. It is behind tab 1 of the joint list of authorities, in particular at page 228 of the judgment in the judgment of his Honour Justice Vincent where his Honour – remembering, of course, that Taylor was a – if I can use the term broadly – a sex case - at paragraph 29 cites the statement of Lord Simon in Kilbourne’s Case wherein his Lordship states:
Corroboration is . . . nothing other than evidence which “confirms” or “supports” or “strengthens” other evidence . . . It is, in short, evidence which renders other evidence more probable. If so, there is no essential difference between, on the one hand, corroboration and, on the other, “supporting evidence” or “evidence which helps to determine the truth of the matter.” Each is evidence which makes other evidence more probable.
His Honour opines soon after:
Considered in isolation, evidence which is capable of providing support for other evidence may be quite innocuous as far as proof of guilt is concerned. Yet it may, by enhancing the reliability or credibility of other evidence, become extremely important in the determination of the facts by a jury.
The submission is that stands in stark contrast to the authority that we relied upon below which was the decision of R v McLachlan.
CRENNAN J: Is that a circumstantial evidence case?
MR BOYCE: McLachlan was a case of an accomplice. I think it was. It is behind tab 6 of the list of authorities. It is R v McLachlan [1999] 2 VR 553, in particular his Honour Justice Callaway’s decision at page 561, paragraph 30. I quote this aspect of the judgment. Your Honours can read it for yourselves, but the most important part of it is his Honour’s observation towards the bottom of that paragraph, in fact, the final sentence wherein his Honour observed:
As corroboration is only a subset of evidence that tends to confirm or support the evidence of the accomplice, the definition his Honour gave was much too wide.
The definition that his Honour gave can be found at paragraph 28 of the judgment over at page 560 wherein the court records:
The learned judge explained the reasons for the caution to be observed with respect to the evidence of accomplices and continued:
For that reason there is a legal principle which has to be applied in these circumstances, and the legal principle is that you should look for corroboration of the evidence of an accomplice. By corroboration I mean you look for evidence which tends to confirm or support that evidence.
If I could stop there, your Honours. One hears echoes of Justice Vincent’s formulation in total, that is simply evidence that would confirm or support. If I may go on:
Because it is dangerous to convict an accused person without evidence from elsewhere that tends to confirm or support the evidence of an accomplice, it is appropriate that you look for that kind of evidence.
It was upon Taylor’s Case, in particular the dictum – that is perhaps putting it a little highly but the reasoning of Justice Callaway in that case which held that what makes supportive evidence corroborative – I am going back to page 561 – is the means by which it implicates the accused. I am at paragraph 30, your Honours:
Corroboration, in this context, is evidence from a source independent of the accomplice which implicates the accused in the crime charged by tending to show both that the crime was committed and that the accused committed it. It will not do so if it not credible and it is by implicating the accused that it renders the evidence to be corroborated more probable -
It is a subset as ‑ ‑ ‑
CRENNAN J: His Honour there relies on the same passage in Doney which the Court of Appeal in this case relies on - paragraph 115 to be found at application book 397.
MR BOYCE: Hence the need, in my respectful submission, for clarity on the issue. It seems that the Court is interpreting Doney’s adoption of Baskerville in ways that are not, at least from this end of the Bar table, entirely consistent. The submission is that this makes a difference when ‑ ‑ ‑
CRENNAN J: In a way, the only difference is that the Court of Appeal in this case in paragraph 115 in describing Doney said of the corroborative evidence:
it must both support the evidence to be corroborated and ‘involve’ the accused ‑ ‑ ‑
MR BOYCE: Yes. At the same time as saying, your Honour, at paragraph 130 that it is a misconception to think that it must be itself probative of guilt. With the greatest respect to their Honours, I cannot see the consistency, in my respectful submission, in that approach. You see, their Honours in Doney’s Case (1990) 171 CLR 207 and perhaps - the case is behind tab 4 of the joint list of authorities - and I am taking your Honours, if I may, to page 211 ‑ ‑ ‑
CRENNAN J: Just before you do, at the bottom of page 210 their Honours deal with an argument which was put in relation to “The note” not implicating the accused in the offence. That was an argument put.
MR BOYCE: Yes. It was said, was it not, your Honour:
The note, it was said, was consistent with his involvement in the distribution of the cannabis resin but it did not implicate him in the offence charged, namely importation. Alternatively, it was put . . . that the note was circumstantial evidence and could not corroborate Freeman’s evidence unless all reasonable hypotheses, other than guilt of the offence charged, were excluded.
Their Honours in Doney met that argument. They rejected the first part of the argument and held that there was a sufficient connection between the note and the offence charged and they rejected the second part of the argument by finding or by reasoning that a piece of corroboration might be a circumstantial piece of evidence and need not be proven beyond reasonable doubt, but that is as far as it went.
CRENNAN J: The next sentence is important, is it not, at the bottom of page 211:
In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice –
which seems to be precisely the terms in which the Court of Appeal speaks.
MR BOYCE: That is right but, with respect, your Honour, we cannot overlook, if I may submit this, the first full paragraph of the joint judgment, the second full sentence, perhaps:
It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it “shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused”: R. v. Baskerville.
One goes back to Baskerville behind tab 3 of the joint list of authorities. Can I take your Honours to 666 of the report wherein the court cites with approval the remarks that were made in Wilkes’ Case. To quote Baron Alderson:
“The confirmation which I always advise juries to require, is a confirmation of the accomplice in some fact which goes to fix the guilt on the particular person charged. You may legally convict on the evidence of an accomplice only, if you can safely rely on his testimony; but I advise juries never to act on the evidence of an accomplice, unless he is confirmed as to the particular person who is charged with the offence . . . It is a practice which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice, unless the accomplice is corroborated in some material circumstance . . . that affects the identity of the party accused.
Could I just read this, if I may? I understand that my light is on, your Honour:
A man who has been guilty of a crime himself will always be able to relate the facts of the case –
and that is the point I opened with, with respect, your Honours –
and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all.
When one goes back to the source, which is Baskerville, one sees that in the instance of accomplices the court is clear there must be evidence that identifies the accused. Why - because the accomplice will always be able to tailor his or her evidence to the objective facts. That is the point of principle that the applicant seeks to ventilate. I see my light is on. I have yet to get to the question of vehicle, but unless your Honours want to hear me, I am content to rely upon the submissions in support of that matter.
HEYDON J: Yes, thank you, Mr Boyce. Yes, Mr McArdle. It is all a bit of a mess, is it not, corroboration? This is a small part of the mess.
MR McARDLE: It might be, your Honour, but of course the uniform Evidence Act is now in operation in Victoria.
HEYDON J: It uses the term without defining it.
MR McARDLE: Yes, but in any event this would not happen in the future.
HEYDON J: Why is that so?
MR McARDLE: Witness warnings in the Evidence Act are of a broader, less precise, it is submitted ‑ ‑ ‑
HEYDON J: It has abolished the compulsory nature of the accomplice warning but it is contemplated that sometimes accomplice warnings will be given, is it not? Do you have it?
MR McARDLE: I do not, I am afraid, your Honour.
HEYDON J: It is section 165(1)(d). It says:
This section applies to evidence of a kind that may be unreliable, including -
…
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding –
That widens the notion of accomplice but it carries with it, obviously, the idea that sometimes one will have to tell juries to search for corroboration, and the question is what is corroboration?
MR McARDLE: Yes. Your Honour, the first thing I was going to say to the Court was that this is not an accomplice case. That is the first thing about it. It has been treated as that, but if you look at paragraph 100 of the judgment which is at 392 of the application book, what has happened here is that this is a case where the corroboration rules have been applied to what is described as an unreliable witness which locally, that is to say in Victoria, would be described as a Faure‑type warning.
HEYDON J: Unreliable because of, as it were, co‑operating with the police and getting indemnities from the police of a de facto ‑ ‑ ‑
MR McARDLE: There would be that and his background, I suppose, and things of that nature, but in any event, this is not an accomplice case as such.
BELL J: Nonetheless, if the trial judge considered it appropriate, having regard to the nature of the evidence given by Mr Le, to give a Faure warning and proceeded to direct in terms of corroboration, how does it assist you to say it was not an accomplice case?
MR McARDLE: It is common, at least in Victoria, your Honour, for an unreliable witness to attract a traditional corroboration warning. It happens.
BELL J: Yes. Given that it has happened then if there was a defect in the identification of the evidence capable of amounting to corroboration it would not save you, would it?
MR McARDLE: It does not have the technicalities, at least of the corroboration warnings. But the way the case has gone, it has been treated is, first it is not an accomplice, however, we will continue to apply the law, we would say, correctly. But that was the first point that I wanted to make. The second point, your Honours, of a preliminary nature is that we would say that really for as long as corroboration has been about, how it operates does not depend upon the type of corroborative evidence or the evidence that requires corroboration, as our learned friend was saying earlier on. That really is moving well away from well‑established orthodoxy, we would say.
Now, your Honours, this was a case in which circumstantial evidence was accumulated for the purposes of corroboration. Baskerville was such a case, of course, and so too was Doney so it cannot be said that circumstantial evidence is not available. It is as plain as one could possibly imagine in those cases that long ago that circumstantial evidence was available, but it is not circumstantial evidence which goes to prove matters in issue. It is circumstantial evidence which bolsters or supports or confirms, whichever expression you choose to use, the evidence of a witness. It provides an entirely different purpose.
So it is submitted that it is never been the situation that evidence which would not prove the offence, for example, it might be only one circumstance or several circumstances, or there might be competing hypotheses or something of that nature, no longer becomes available as corroborative evidence, or at least as corroboration for the purpose of an accomplice or some other witness who attracts such a warning.
We would say that in this case and, in particular, in paragraphs 216, for example, what has been contended is that evidence viewed individually is not or at least to become corroborative, if looked at in isolation, that is to say the individual bit of circumstantial evidence, it must establish the commission of the crime and the commission of the crime by the accused.
We would say that that is not, firstly, the purpose of the exercise and secondly, not the appropriate way to treat circumstantial evidence. It is not to be viewed in isolation or the items of circumstantial evidence are not to be viewed in isolation but rather it be viewed cumulatively which, of
course, is what has occurred in this case. We would say with all respect to our learned friends that that which appears in paragraph 216 is just not right.
HEYDON J: Paragraph 2.16?
MR McARDLE: Yes, 2.16, I should say, yes.
HEYDON J: So, for example, when they on page 5 they take a particular piece of evidence and then they take a particular instant and match the two and then they do it several times, you say that is incorrect? If the case were being decided on circumstantial evidence independently of corroboration, you take it as a whole, R v Hillier?
MR McARDLE: Yes.
HEYDON J: You do the same when corroboration analysis is engaged in ‑ ‑ ‑
MR McARDLE: Yes. Except again, I emphasise, the purpose is quite different. Normal circumstantial evidence case, you are trying to prove facts in issue. This is not such an exercise. Of course, it does not have to be established beyond reasonable doubt. It is just to be viewed as circumstances. In this case, for example, the first one was that as a result of a, what is colloquially known as a “buy bust”, a quantity of heroin was seized as a result of Mr Le, I think, tipping the police off.
The evidence is complicated but it allows for the fact that one ounce was not accounted for by the police and Le would have it that the next day Cox gave him an ounce of heroin in the vicinity of the relevant police establishment. That is an item by itself and it is directed with various other items involving diaries, police records, a number of other things, a body of circumstantial evidence which provides corroboration. So we would say that the case, whatever one might think of the state of the law of corroboration, this is not an appropriate vehicle to take the matter further towards a full hearing.
Your Honours, I think that that, subject to questions that you wish to raise, is the submissions that we wish to make. Implicit in that are cases such as Taylor and Kuster - that they are correct for the reasoning we have endeavoured to explain today and in our outline. If the Court pleases.
HEYDON J: Thank you, Mr McArdle. Yes, Mr Boyce.
MR BOYCE: Your Honour, what my learned friend’s submission as to circumstantial evidence amounts to is this, effectively that all of the circumstantial case can be looked at independently as corroborative evidence and goes to corroborate the accomplice, as well as being looked at separately itself. In my respectful submission, it cannot be what their Honours in 1916 had in mind in Baskerville’s Case.
In any event, and to the extent that my paragraph 2.16 suggests to the contrary, those submissions were taken directly from submissions of senior counsel that were made before the court below in a case of Pisano [1997] 2 VR 342. It is behind tab 5. Can I simply note that senior counsel was a member of the Bench that decided the instant case?
HEYDON J: Yes. It is often interesting in determining propositions of law to see how great lawyers put it, what Mr Cairns submitted or what - but it is not actually the law, though.
MR BOYCE: No, no, I appreciate that, your Honour, and I perhaps may not have mentioned it but for the eminence of the source. Can I just say this, though? The submissions I make in my 2.16 were made by senior counsel who was – they were not – and they are set out at pages 346 to 347 and do not appear to have been disapproved of by the court below in that particular case. So I tread carefully but I tread in the footsteps of counsel who are of much greater eminence than I.
My learned friend submitted that the corroboration need not go, as I took him, towards identifying the accused. May I, with respect, draw direct issue with my learned friend on that point. As I have attempted to identify in‑chief the whole rationale of the corroboration warning in the instance of accomplices is to identify the accused because of the risk.
My learned friend, for the first time, as I take him, submits also that this was not an accomplice case. I think my client may have provided the Court with the charge - your Honours probably do not have it, but can I just read something from the directions given by the judge to the jury in this matter. It is at transcript 8110.
HEYDON J: Yes, we have 8110.
MR BOYCE: His Honour directed the jury as follows. It is the first full paragraph, your Honours, “Witnesses in the position of Duy Le”. I hope the numbering is the same.
HEYDON J: Yes, we have it.
MR BOYCE: Yes:
Witnesses in the position of Duy Le are not witnesses, therefore, who give their evidence from a position of detached disinterest; rather, they are people who possess a motive to give evidence implicating others in their criminal conduct or shifting blame either wholly or partly for their conduct onto others and, if necessary, they do so falsely. For those reasons, I must direct you as a matter of law how you must approach the evidence of Duy Le. The direction I give you is that you must approach his evidence on the basis that it would be dangerous to convict either accused upon the uncorroborated evidence of Duy Le. It follows, therefore, that you must look for evidence of corroboration of the evidence of Duy Le and in a moment I will define for you what the law means by corroboration.
BELL J: Then his Honour went on at 8112 to explain that:
Corroboration consists of evidence independent of Duy Le which tends to show both that the crime of conspiracy . . . was committed and that the accused men –
committed it.
MR BOYCE: Precisely so, your Honour. His Honour directed the jury in line with his earlier ruling as to which issue is taken, but my point is, your Honour, that this was an accomplice case. The jury were directed as such ‑ ‑ ‑
BELL J: I understand that. Can I take up this with you?
MR BOYCE: Yes, your Honour.
BELL J: Take the evidence of betterment. I think his Honour left that as part of the material from which the jury could be satisfied that Duy Le was corroborated.
MR BOYCE: Yes.
BELL J: Well, standing on its own, the fact that a person has unexplained wealth does not establish the fact that a crime has been committed, or that they committed it. But do you submit that that was not open on your analysis as part of the evidence capable of corroborating Duy Le, taken with other evidence?
MR BOYCE: The evidence – you will note from my outline of argument that that piece of evidence ‑ ‑ ‑
BELL J: I noted you did not include it.
MR BOYCE: It is the others, it is the bulk of the others.
BELL J: But I inferred that you accepted the evidence of betterment was capable of being corroborative, and I want to understand how, if your principal argument is right.
MR BOYCE: Perhaps I am mistaken, your Honour. My principal argument is that the evidence must rise, either individually or together, to identify the accused as having been connected with, or tending to connect with the crime charged. My simple submission is, and your Honours can read through the evidence, and your Honours will see how when one comes to each different part of the evidence the Court of Appeal or the court below, at least in respect of some of that evidence, had its doubts about the strength of it, at least looked at individually.
My respectful submission is that that evidence, whilst it might generally support or accredit, if you like, Duy Le, did not rise to the level of implicating the accused in the crime charged so as to assuage the vice that was present, and that his Honour recognised and as to which his Honour directed.
So, in my respectful submission, your Honours have a ruling, your Honours have the authorities dealt with below, and the evidence itself makes this case a good vehicle for consideration of the question. The question is still open under the Evidence Act, as your Honour the learned presiding Judge has properly noted, in my respectful submission.
HEYDON J: Yes, thank you, Mr Boyce. The Court will adjourn for a short time to consider the future progress of this application.
AT 11.58 AM SHORT ADJOURNMENT
UPON RESUMING AT 12.07 PM:
HEYDON J: We are of the opinion that there are insufficient prospects of success were leave to be granted and, therefore, the application for special leave is refused.
The Court will now adjourn to reconstitute.
AT 12.07 PM THE MATTER WAS CONCLUDED
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