Davidson v The Queen

[2020] HCATrans 141

[2020] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B6 of 2020

B e t w e e n -

CHARLES DAVIDSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO CONNECTION TO MELBOURNE

ON FRIDAY, 11 SEPTEMBER 2020, AT 9.30 AM

Copyright in the High Court of Australia

MR M.J. McCARTHY:   May it please the Court, I appear with my learned friend, MR M.J. JACKSON, for the applicant.  (instructed by Fisher Dore Lawyers)

MS J.A. WOOLDRIDGE:   May it please the Court, I appear with my learned friend, MS S. CUPINA, for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ:   Thank you.  The record will show that the hearings today are being video conferenced through Courtroom 2 in Canberra.  I am in Brisbane and Justice Nettle is in Melbourne.  Yes, Mr McCarthy.

MR McCARTHY:   Thank you, your Honour.  There is first an application to dispense with the time limit in rule 41.  In that regard, I read and rely upon the affidavit of Lauren Phelps.

KIEFEL CJ:   Yes.  I think there is some controversy about this.  The respondent seems to suggest there is insufficient justification.

MR McCARTHY:   That is, as I understand it, still the current position, your Honour.

KIEFEL CJ:   All right, yes.

MR McCARTHY:   I am in your Honours’ hands as to whether you wish to deal with that now, or ‑ ‑ ‑ 

KIEFEL CJ:   Yes, we will deal with it now.  We have read the affidavit, Mr McCarthy.

MR McCARTHY:   Thank you, your Honour, in that regard, I…..  The submission is this.  On the merits of the application itself, and as the timeline outlined in the affidavit records, there has been that process which is essential to the granting of legal aid for preparation of applications of this kind, coupled with what, in our submission, is a sufficiently meritorious application.  Those are the materials and submissions I make on that application.

KIEFEL CJ:   Yes.  We will hear from Ms Wooldridge.

MS WOOLDRIDGE:   May it please the Court.  The application for the extension of time in which to appeal, it is maintained that the matters in the affidavit, in and of themselves, do not disclose sufficient justification for the delay.  The matters litigated before this Court, with reference to the judgment, are self‑evident from that judgment.  However, may I make the

observation that perhaps it is an issue best determined in conjunction with the substantive issues on the appeal because, in my submission ‑ ‑ ‑

KIEFEL CJ:   On reflection, I think that is probably correct, Ms Wooldridge.  We will hear argument on the substantive application for special leave and deal with the extension at the conclusion of argument from both parties.

MS WOOLDRIDGE:   Thank you, your Honour.

KIEFEL CJ:   Mr McCarthy, we will hear you as to the substantive matter.

MR McCARTHY:   Thank you, your Honour.  Firstly, there is one matter by way of clarification.  My learned friends address in their submissions a point concerning the consideration of - perhaps more correctly, the significance of the pre‑trial position as opposed to or in contrast to the position on this appeal.  Lest there be any doubt, the submission on this appeal is that the rape counts should not have been run with and should have instead been separated from the remaining counts at trial.

In paragraphs [14] and [15] of the application, the applicant summarises and refers to the pre‑trial position as being, in terms, that the applicant contends that separate trials ought to have been entered - ordered in respect of the rape counts on the basis of the similar fact evidence not being cross‑admissible, but then at [15] that it was conceded at the hearing of the pre‑trial application counts of unlawful indecent assault in, if I can call them the first group, were properly joined on the one indictment.

In the third line, just after the footnote for 21, with the remaining counts of sexual assault, that is not a correct statement of the pre‑trial position.  I am indebted to our learned friends for providing us with some material.  Your Honours need not go to that material and it is not part of the record book.  But it is sufficient to recall that the concession described as having been made at pre‑trial that there was a proper joining of all sexual assault counts was not made at pre‑trial.  That being said, the submission is still that the three rape counts should not have been run, and should have been separated.

KIEFEL CJ:   Well, essentially that is because you say that they are not admissible as similar fact evidence?

MR McCARTHY:   Yes.

KIEFEL CJ:   What do you say is the difference in approach between that taken by Justice McMurdo and that taken by Justice Boddice?

MR McCARTHY:   It comes to a head in paragraphs [12] and [13] and following through [15] and [16].  Those appear in the record at page 203 through 204.  There is reliance on and reference to Bauer in particular, the decision of this Court from 2018.  At paragraph [16] there is acknowledgment by the majority that it must be acknowledged that the offences of rape were more serious than the other offences.  His Honour then expresses:

In my view, however, there was a sufficient link between the rape offences and the other offences as to make the evidence of one offence strongly probative in the proof of another.

The common features of ‑ ‑ ‑

KIEFEL CJ:  But does not Justice Boddice refer to the linkage?

MR McCARTHY:   His Honour does, yes, but distinguishes that as being insufficient and, in particular, draws a distinction between the commonality of contact in one group of offences – for example, specifically where there is contact with the breast – a number of charges – as opposed to contact with different areas and, in particular, as opposed to those counts involving rape.

NETTLE J:   Mr McCarthy, may I ask you this?  Would it be fair to say that the essence of your contention is that although the majority refer to Phillips in paragraph [14] and purport to apply it in [15], in doing so they use the test adumbrated in paragraph [13] which relates to section 97 of the Uniform Evidence Act, rather than to the common law principles of similar fact evidence?

MR McCARTHY:   Yes, and without going on to articulate the expansion of that common law test in paragraphs 57 and 59 of Bauer, in particular, notwithstanding the reference to paragraph 58.  The passages, collectively, from [13] through to [16] lend an impression that reliance is placed on common features and a sufficient link as opposed to what appears in the broader explanation in Bauer at 57 and 59, which prefaces and concludes the observations which are relied upon or referenced more directly from 58.  In Bauer, at 57, there is of course a continuation of the explanation and, ultimately, a conclusion of the explanation of the significance of Hughes and at paragraph 57 ‑ ‑ ‑

KIEFEL CJ:   Mr McCarthy, does not Justice McMurdo refer to the need for there to be a degree of probative force and, indeed, refers to the evidence being of strong, probative force and is that not consistent with Phillips?

MR McCARTHY:   His Honour does, and consistent, in my submission, but short and the…..then shifts to or appears…..with the common features ingredient and the sufficient link ingredient, in particular, in circumstances where paragraph [15] extracts from the summing-up those matters which are properly described as common features, but which Justice Boddice’s reasons do not amount to a sufficiently probative or significantly probative – I am sorry, I withdraw that, a significantly probative collection of features that warrant the admissibility. 

KIEFEL CJ:   Well, his Honour says at paragraph [233] ‑ ‑ ‑ 

MR McCARTHY:   Midway ‑ ‑ ‑ 

KIEFEL CJ:   Justice Boddice says at paragraph [233] that there needs to be “an underlying pattern of conduct” and that there were “obvious and significant differences” in the alleged conduct involving the rape and the other.  What is his Honour referring to as the “obvious and significant differences?” 

MR McCARTHY:   That is most clearly illustrated in the contrast between counts 11 and 15, count 11 being the sexual assault charge in relation to the touching of the buttocks of RJ, and in paragraphs [106] to [110] of his Honour’s reasons there is a summary of the facts concerning that matter. 

Essentially, RJ attended for remedial treatment in relation to foot pain.  There was discussion about a whole body, to quote the discussion, massage as an alternative treatment and in particular discussion about a difficulty with the muscle area referred to as the glutes.  There is a proposal for a whole-body massage instead of a foot massage, and in the course of that, RJ’s evidence is that the massage started at the glutes – continued to the glute area, also extended to the buttock area down to the feet and then the other foot, the other buttock and up to the shoulders on the opposite side.  The evidence in RJ’s case meant that the live issues were not whether or not it had occurred, but whether or not there was consent or a mistake as to consent. 

The contrasting evidence in count 13 which was the rape concerning EB, which is a part of a group of charges concerning that complainant, namely 6, 13, 14, and 15, in EB’s case, summarised at paragraphs [73] to [84] of Justice Boddice’s reasons, the rape in particular is alleged to have occurred at the conclusion of the massage treatment, to have been effectively spontaneous in that regard, the other conduct having ended.  EB describes having thought that the matter was ended and that she was about to start re‑dressing herself.  There is a spontaneous digital penetration and no suggestion of consent nor any suggestion of mistake as to consent.

There is in that particular example, a clear departure between the facts of one and the facts of the other, and it is difficult to ascertain how the one could be of assistance in relation to the other.  The commonality between the two is little more than that it occurred in the workplace of the particular defendant and recognition that those features of it occurring in the workplace and by reason of the workplace, because that involves necessarily a single therapist and a single recipient of the treatment who, in each case, is the complainant, those are not features which are so remarkable and so unusual that they inform the question of consent in the case of count 11, for example, where it was squarely about consent or mistake as to consent when one takes the question of whether or not it occurred at all which was the defence in relation to count 15.

NETTLE J:   Mr McCarthy, can I ask this, apart from consent and lack of consent and the difference to which that gives rise in light of Phillips, am I right in thinking that it is only in counts 15, 16 and 17 that there was penetration?

MR McCARTHY:   Yes.

NETTLE J:   Was that not the big difference?  All the others lack penetration, do they not?

MR McCARTHY:   Yes, and there is a range of contact across the other charges and there is that series of – I will put that a different way – in some groups there is more than one offence per complainant but not in every case, but the significant difference, the most significant difference which, in our submission, warrants separation is that distinction between contact and whether or not it was by consent or by mistake, any proposition at all about whether it occurred.

Your Honours, separately there is the progression of this line of authority through the decisions dating back to Hoch in 1988.  Your Honours will, of course, have noted the summary of those developments at paragraphs 22 and following of the application.  Unless there are any matters, I do not propose to proceed in any further detail in relation to that. 

I will address briefly the development of cases in Queensland, in particular.  This decision splits in time other decisions on this topic by the Queensland Court of Appeal, in particular, in 2018 in Nibigira and in 2019 in McNeish and each of those deals with the question of the application of common law principles to this similar fact evidence and each of those deals with it by focusing upon the existence of the line of authority and references this Court’s decision in Bauer as others, but there is that point of dissent in each of those cases. 

True it is that Nibigira is specifically dealt with by his Honour Justice Gotterson in his Honour’s reasons at the commencement of the judgment in Davidson.  What those collection of decisions reflect, in our submission, is that there continues to be a variation in the application of the test and a question arises from that as to the nature of – or rather the precise operation of the principle, not just in those cases but particularly the application of the principle in each of those cases. 

Here, of course, there is, by way of contest, a focus upon the application - acknowledgment of the principle as laid out, in my submission, with clarity in Bauer and relying on Hughes is nonetheless the subject of some continuing dissent, as recently as McNeish in the Queensland Court of Appeal.  It is that feature, in addition to what we say is a miscarriage in this case, which combines to warrant the grant of leave.  Your Honours, unless there is anything further, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr McCarthy.  Yes, Ms Wooldridge.

MS WOOLDRIDGE:   May it please the Court.  It is useful, in the respondent’s submission, in considering the merits of the application for special leave, to focus firstly on what the applicant contends the correct result is at law and what on the facts on this case would be the result, it is said, the Court of Appeal firstly should have found and that this Court would find.

It is useful to do so, in my submission, because it serves to demonstrate why special leave would not be granted…..is that there are insufficient prospects of a miscarriage of justice being established, but also because it serves to demonstrate why this is not the vehicle to explore the issues that the applicant contends require clarification in the Queensland jurisdiction.

What the applicant contends should have been the result of the inquiry conducted by the Court of Appeal is that, with the exception of counts 15, 16 and 17, being the three counts of rape, all of the remaining counts would be tried together, that is, the applicant accepts that all of the remaining counts, as they relate to all of the 10 complainants, were cross‑admissible and properly joined. 

By way of overview of how counts 15, 16 and 17 fit within the overall body of charges that were on the indictment, and subject to the view of the Court it is not necessary to go to the evidence in detail to illustrate this point, there were 21 charges constituted by 18 counts of sexual assault, and the three counts of rape that are the subject of complaint before this Court.

The 21 charges relating to 10 complainants means that it is self‑evident that there was more than one charge relating to a number of those complainants, and that was the case for both the complainants EB and HL, EB being the complainant in the charge of rape that is count 15 and HL being the complainant in the charges of rape that are counts 16 and 17. 

The other counts in relation to complainant EB included counts 13 and 14.  They occurred on the same occasion as count 15, rape.  The complainant accepts that counts 13 and 14 are properly joined with the remaining counts, including as related to the other complainants, but maintains that count 15, which occurred on that same occasion, is not.

The other counts in relation to the complainant HL were counts 18, 19 and 20.  They each occurred on the same occasion as counts 16 and 17, the other two counts of rape, and the applicant accepts that counts 18, 19 and 20 were properly joined with the remaining counts, including as relates to each of the other complainants, but maintains that….. and 17, which occurred on that same occasion, were not.

The matters which Justice McMurdo referred to as being the features which meant that the evidence of one offence had strong probative force in the proof of the other offences are outlined in paragraphs [15] and [16] of the judgment, to which my learned friend has taken the Court.

The effect of the applicant’s position before this Court must be understood to be that it accepted that such matters as his Honour referred to justify a conclusion that the evidence of the offences relating to all complainants was of sufficiently strong probative force in proof of the other allegations as related to all complainants but for where the offending extended beyond touching in the area of the groin, pubic or vaginal area externally to involving some aspect of digital penetration of the vagina.

By way of illustrative context, count 1 was particularised, and I am using the words as they appear in the background summary of his Honour Justice Boddice - count 1 was particularised as the touching of the outer lips of the genitals of the complainant MQ.  Count 4 was the touching of the outer labia of the complainant FE.  Count 10 was particularised as a touching of the genitals near the vaginal area of the complainant KA.

Counts 13, 18 and 19 in relation to complainants EB and HL, who were the complainants in the rape allegations, were also allegations of touching along the genital or groin area in proximity to the vaginal area.  It is accepted by the applicant that each of those counts were cross‑admissible and they will be joined with one another and the other alleged conduct.

It is, in my submission, difficult to conceive of how, it being accepted that it was not only open but in fact correct for the Court of Appeal to conclude that there was such a basis for joinder of those counts other than where the conduct of digital penetration occurred, why the view would be taken that the joinder of the three counts of digital rape was not also similarly permitted at law with reference to the same matters that permitted the joinder of those other counts.  Yet, that is ultimately the error suggested in the conclusion reached by the majority judgment of the Court of Appeal.

If the applicant’s suggestion as to a…..framed test that should have been applied that there was an underlying pattern is accepted, that will still mean that the applicant asks this Court to conclude that there was such an underlying pattern between all the conduct, short of digital penetration but not the acts of digital penetration, even where such conduct occurred in the same context in relation to the…..and on the same occasion as other offending that did come…..as a matter of fact, this Court would be asked to determine…..

NETTLE J:   I am sorry to interrupt you.  Could I ask you a question, please?

MS WOOLDRIDGE:   Yes, your Honour.

NETTLE J:   It relates to paragraph [13] of the joint judgment where reference is made to this Court’s decision in Bauer.

MS WOOLDRIDGE:   Yes.

NETTLE J:   Could you tell me, please, what would be the possible relevance of Bauer in a case which is governed by the common law principles of similar fact evidence?

MS WOOLDRIDGE:   It does need to be acknowledged, firstly, that that passage from Bauer, as a starting point, was a recitation, or clarification, of the position in the decision of this Court in Hughes as related to multiple complainant cases.  Also, that that particular passage, as did the decision in both cases, primarily focused on the issue of tendency evidence as opposed to similar fact evidence at common law. 

However, that is not to say that some of the same fundamental principles and observations as may relate to similar fact evidence at common law do not still have – sorry, as relate to application of the legislative provisions being considered in Bauer do not have relevance to an application of the common law.  In fact, as much was accepted by the Court in Bauer itself. 

The particular statement there, as was referred to by his Honour Justice McMurdo - and, in fact, as your Honour the Chief Justice has already identified by Justice Boddice in dissent also – indicated only a principle that may be accepted that where evidence that the accused has committed a similar offence against one complainant that will not usually, in and of itself, be evidence that is probative of the commission of the offence against a further complainant.  It includes the statement that:

the logic of probability reasoning dictates that . . . to be significantly probative . . . there must ordinarily be some feature of or about the offending which links the two together.

But, equally, it says that:

More specifically, absent such a feature . . . the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative . . . some common feature . . . may demonstrate –

…..sufficient linkage.  That is not to say that the test, or the statement in Bauer at that point goes so far as to say that sufficient linkage will be established merely by the presence of a link but to observe that, absent such a link, clearly the threshold will not be met.

NETTLE J:   The thing that troubles me ‑ ‑ ‑

MS WOOLDRIDGE:   The observation ‑ ‑ ‑

NETTLE J:   Ms Wooldridge, the thing that troubles me about this reasoning is that, as was made plain in Bauer, the test under section 97 of the Uniform Evidence Act is a far lower hurdle over which the Crown has to climb.  To use the reasoning which was said to be sufficient to get over that low hurdle that subsequently justified the reception of evidence under common law similar fact principles strikes me as problematic.

MS WOOLDRIDGE:   If it were the case that his Honour had referred only to that passage, as stated in Bauer, then there might be more basis for concern, in my submission.  I do maintain the observation that that passage, in and of itself, does not describe a test but is merely an observation of a starting premise.  But in this case, from there, his Honour has gone on to refer specifically to the correct principles and…..importantly, that focus on the probative value and the level of probative force required for the admission of evidence.  That features in the reasoning of his Honour in reaching the conclusion that he did. 

The Court would be additionally aided by the further reasons of his Honour Justice Gotterson and reference to the cases in Queensland that clearly applied such criminal principles in R v Nibigira [2018] QCA 115.

NETTLE J:   Well, Hoch and Pfennig made patently clear that, in order to overcome the striking similarity test of common law principles of similar fact evidence, it has to be striking similarity.  It strikes me that there is a striking dissimilarity between common garden sexual assault and an actual penetration constituting rape.

MS WOOLDRIDGE:   Well, in my submission, leaving aside the premise of whether striking similarity is required in every case because, in my submission, that is not necessarily so, the consideration of similarity or otherwise need be considered in the context of the facts as a whole and where, as is conceded before this Court, there were allegations in relation to the same and different complainants of touching of the labia, in the context of the massage appointment conducted in the course of the applicant’s business, I maintain that it would be an incorrect categorisation of the evidence of there being digital penetration as being strikingly dissimilar.  Effectively, there is very little divergence, in my submission, from a touching of a labia to a penetration of a labia or vagina – factually ‑ ‑ ‑

KIEFEL CJ:   Is it your submission that in a context such as this you are talking about, in a mechanical way, questions of degree?

MS WOOLDRIDGE:   Yes, and that a consideration of the probative force of the evidence cannot be in isolation with the other facts.  Whether there is significant similarity or significant probative value between an allegation of digital penetration and an allegation that only amounts to indecent or sexual assault is not considered in the absence of all of the surrounding features.

The suggestion that was made that the divergence is, for example, demonstrated by reference to count 11 and the touching on the buttocks that was the subject of that allegation, in my submission, does not assist the applicant once it is accepted that the other counts were joinable.  That, in my submission, requires a focus purely on the aspect of the mechanics, nonetheless.  It is also inconsistent, in my submission, with the approach as dictated in Pfennig that the probative force is considered in the context of the evidence as a whole.

The applicant’s reliance on the reasons of his Honour Justice Boddice in dissent, in my submission, also do not assist the applicant.  That is because whilst, at paragraph 15 of the application for special leave the applicant attributes his Honour Justice Boddice as finding that all the offences of unlawful and indecent assault were properly joinable, a consideration of his Honour’s judgment does not indicate that his Honour reached such a view. 

I pause only to indicate that it is readily accepted that his Honour reached the view that the three counts of digital rape should have been severed.  My submission is that a reading of Justice Boddice’s judgment indicates that there was no positive finding by his Honour that the indecent assaults in the first group – as my learned friend referred to them – the “touching or massaging of the breasts” conduct, collectively, and the indecent and unlawful assaults in the second category relating to touching in the area of the groin, pubic and buttock area, that those two groups were joinable, as opposed to joinable within themselves and that means, if accepted, that the contention of the applicant before this Court is effectively a middle ground between the conclusion of the majority and the decision reached by his Honour Justice Boddice.

It is in that context that a clarification of the position pre‑trial is of some relevance because that provides the starting position of his Honour Justice Boddice in paragraph [229] of his judgment, where his Honour refers to the position pre‑trial and commences by the grouping of the conduct in that way.

His Honour then, through paragraphs [230] to [235] of his judgment proceeds to acknowledge that a finding that the conduct in the first category was joinable is substantiated, and a finding that the conduct in the second category is joinable is substantiated.  At paragraph [232], his Honour articulated the conclusion that counts 15, 16 and 17 were not cross‑admissible with any of the other counts in relation to the other complainants.

Against that background, it is evident, in my submission, that the reference of his Honour at paragraph [235] to the differing nature of the appellant’s conduct in respect of the touching of the vaginal, groin, pubic and buttock areas would be read as meaning not only as concerns the rape counts, because that observation had already been made, but as concerns the other offending.

So reliance upon the judgment of Justice Boddice in light of the narrow issues that the applicant contends this Court would be required to determine does not assist or suggest a particular need for special leave to be granted.

NETTLE J:   What about the first sentence of paragraph [233]?  Is that not penetration?

MS WOOLRIDGE:   That is accepted, your Honour.  I certainly do not dispute that the correct reading of his Honour Justice Boddice’s judgment is that the three counts – I am sorry, your Honour, is your Honour inquiring whether my submission is that the obvious and significant differences are the fact that they involved penetrative acts?

NETTLE J:   What I am putting to you is that upon my reading of the first sentence of paragraph [233], the obvious and significant differences to which his Honour refers as relating to counts 15, 16 and 17, as opposed to the other counts, is that only 15, 16 and 17 involved penetration?

MS WOOLRIDGE:   Yes, and that – in my submission, and further to what was contained in my written submissions, no other obvious and significant differences are…..  The conclusion, in my submission, that could readily be reached is that the act of penetration was a focus, or the mechanics of the acts, were a focus for his Honour.

NETTLE J:   Thank you.

MS WOOLDRIDGE:   If I may then turn to address what is suggested to be an implied shifting of the position of the Court of Appeal from previous decisions such as those in R v MAP [2006] QCA 220 and R v Nibigira [2018] QCA 115, may I submit the Court would be assisted in the conclusion that there is no such shift apparent in the reasons of the majority of the Court of Appeal by virtue of the fact that his Honour Justice McMurdo and Justice Gotterson were both members of the court in Nibigira and that decision was raised in submissions before the Court of Appeal and not referred to in any adverse way, your Honours, and further was expressly discussed by his Honour Justice Gotterson in his reasons from paragraph [2] of the judgment. 

Further to the passage in Nibigira extracted within the judgment of the Court of Appeal below in this matter, the divergence in the circumstances giving rise to the penile rapes of the two complainants are set out in paragraphs [102] and [103] of the judgment in Nibigira but it is sufficient to note that those circumstances certainly extended beyond the mere occurrence of penetration. 

As his Honour noted in Nibigira, that factor of penetration alone - and this is at paragraph 4 of the judgment in Davidson - it was not the case that the determinations of which counts were joinable otherwise fell solely on the aspect of there being penile penetration, that is, some of the acts of penile penetration were severed, others were not, depending upon an assessment of all the circumstances.  The particular use of the term “underlying pattern” as appears in R v Nibigira but not, it is accepted in the judgment ‑ ‑ ‑

KIEFEL CJ:   Do you have much further to go?

MS WOOLRIDGE:   No, your Honour, thank you - in my submission, does not indicate any divergence in application of the test.  What is consistent between R v MAP, R v Nibigira and R v Davidson is the reference and reliance upon the decisions of this Court in Phillips and Pfennig.  May it please the Court.

KIEFEL CJ:   Yes, thank you.  Do you have anything in response Mr McCarthy?

MR McCARTHY:   Only that, for the sake of confirmation, our position remains that the reasons of his Honour Justice Boddice do not descend into confirmation or an expression that one more of the other charges should also have been separated.  The argument that we advance here is that his Honour’s reasons clearly articulate that the rape charges should have been separated and that is our submission as well.  Otherwise I think I would just be repeating myself on matters already raised.  Thank you, your Honours.

KIEFEL CJ:   Thank you, Mr McCarthy.  The Court will adjourn to consider the course it will take. 

AT 10.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.14:

KIEFEL CJ:   There will not be a grant of special leave in this matter.  Rather the application for special leave, including the application for extension, will be referred to a Full Court. 

The Court will now adjourn until 10.30 am.

AT 10.14 AM THE MATTER WAS CONCLUDED