Davis v the Queen S39/2000

[2000] HCATrans 592

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S39 of 2000

B e t w e e n -

BRIAN DAVIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 OCTOBER 2000, AT 2.25 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   I appear with MR S.J. ODGERS.  (instructed by Legal Aid Commission of New South Wales)

MR R.D. ELLIS:   I appear with my learned friend, MR R.A. HULME, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Mr Game, subject to any comments you had to make, we thought that it would be appropriate to have your case heard by a Bench of seven also.  The proposal that we have in mind is that the matter of Azzopardi, which is part heard, and your application for special leave to appeal, which is yet to begin, should be listed together before a Bench of seven at 11.00 am on Monday, 20 November.  How would you be placed in that respect?  You have an opportunity to make any alternative suggestion, if you want one.

MR GAME:   Well, your Honour, we are quite happy to accept that proposal.

GLEESON CJ:   Mr Ellis, is there anything you would want to say about that?

MR ELLIS:   No, your Honour, I am content with that.

MR GAME:   We are still a special leave application, I take it?

GLEESON CJ:   Indeed you are.

MR GAME:   We are struggling along.

GLEESON CJ:   You may never improve your position.  Counsel will understand from the exchanges that occurred this morning that one of the matters that we wish to hear argument on is the current status of Weissensteiner as an authority, particularly in New South Wales, in the light of section 20 of the Evidence Act, and in the light of the decision of this Court in RPS.

MR GAME:   Yes.

GLEESON CJ:   Very well then, the matter of Azzopardi v The Queen will be adjourned to Monday, 20 November at 11.00 am ‑ ‑ ‑

MR GAME:   Can I just ask you a question, your Honour?  I take it that we should be in a position to address the Court on some more basic questions about what the process is of drawing inferences, that is to say, some of the more difficult questions that are addressed in ‑ ‑ ‑

GLEESON CJ:   You are quite right about that, yes.

McHUGH J:   I think it requires a fundamental analysis of the whole document.  You go back to the very basics of the law.

GLEESON CJ:   It would require reading - - -

KIRBY J:   The basis in terms of the accusatorial system, and with not just a few historical allusions.

GLEESON CJ:   It would cover, for example, the situation that applies where judges and magistrates are deciding criminal cases without juries.  Very well.  Davis v The Queen will also be adjourned until 11.00 am on Monday, 20 November.

The possibility of some further written submissions was raised this morning, and all parties to those two cases are at liberty to supplement their written submissions between now and 20 November.

MR GAME:   It may be of more assistance to the Court if we, as it were, substitute the submissions that we put in with submissions that, as a single set of submissions, address the issues.

GLEESON CJ:   Yes, that may be of more assistance.

MR GAME:   We will approach it on that basis.

GLEESON CJ:   Very well.

AT 2.28 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 20 NOVEMBER 2000