Dayney v The King

No judgment structure available for this case.

[2024] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B69 of 2023

B e t w e e n -
MARK VINCENT DAYNEY
Appellant
and
THE KING
Respondent

GAGELER CJ
GORDON J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 19 APRIL 2024, AT 10.00 AM

Copyright in the High Court of Australia

MS R.M. O’GORMAN, KC: May it please the Court, I appear with my learned friend MR J.J. UNDERWOOD for the appellant. (instructed by A W Bale & Son Solicitors)

MR C.W. WALLIS: If the Court pleases, I appear with MS S.L. DENNIS for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER CJ: Thank you, Mr Wallis. Ms O’Gorman.

MS O’GORMAN: Your Honours, this appeal concerns the meaning of the third limb of section 272(2) of the Criminal Code, which the parties have called the retreat condition. Specifically, it concerns the meaning and effect of the introductory words “nor, in either case, unless”.

There are three competing constructions. The first is that the words “in either case” refer to the two preceding aforementioned cases in section 272(2). We submit that this is the correct construction in accordance with the modern rules of statutory construction and for the reasons given by President Sofronoff in Dayney (No 1).

The second construction is that the words “in either case” refer to the alternative cases of force which occasioned death or force which occasioned grievous bodily harm. We say that that construction is untenable for the reasons given by Justice of Appeal Dalton in Dayney (No 2) at paragraphs [40] and [41] of her Honour’s decision. The third construction is that the words refer to the alternative cases of unlawful assault and provocation in section 272(1). We say that that construction is untenable also for the reasons given by Justice Dalton in Dayney (No 2) at paragraphs [40] and [41]. As we apprehended, the Crown does not continue to suggest that that possible construction is, in any event, an appropriate or open one.

There being no other alternative constructions of the relevant words, it would seem that the appeal will be focused on whether or not construction 1 or construction 2 is the one which ought to be given to the words “nor, in either case, unless”. If our interpretation is accepted, the appeal must be allowed. It is anticipated that our submissions this morning will be brief, primarily because our argument is a simple one which suggests that the answer to the question of which construction is correct hinges on the reference to either case coming as it does so soon after reference to two different cases immediately preceding the paragraph.

Although there has been commentary over the years about the meaning of the retreat condition, and those cases are in the joint book of authorities before your Honours, we do not propose to go to those, at least in any great detail, because the early Queensland cases consisted primarily of obiter comments with respect to the meaning to be given to the retreat condition in the context of cases which were examining other issues. For those reasons the authorities, we would suggest, do not assist this Court in reaching a conclusion. Likewise, we would suggest that the extrinsic materials – the draft Code and Sir Samuel Griffith’s explanation of the draft Code in his letter to the Attorney‑General – provide only limited assistance and I do not propose to go to those in great detail, although I will make reference to them briefly.

So, acknowledging at the outset the submissions will be brief, can I indicate that these submissions will advance four propositions. First, the starting point for the task of construction of the retreat condition is to consider the text, context and purpose of section 272 against the backdrop of section 271, and the Code more generally. Second, we propose that a consideration of the text, context and purpose of section 272 supports the meaning proposed by the appellant. Third, the considerations of text, context and purpose do not support the meaning proposed by the Crown. Fourth, if those two propositions are accepted, then there is no ambiguity in the meaning of the words in the retreat condition and there is no need or warrant to go behind the text, context and purpose to look at the antecedent common law or, indeed, Sir Samuel Griffith’s potential subjective intentions with respect to the drafting of the Code.

Can I turn then to the first of those propositions which we apprehend to be entirely uncontroversial. It is that the starting point for the ascertainment of the meaning of the retreat condition is to consider the text, context and purpose of that condition. The parties are agreed, as we apprehend it, to this proposition, and it is also well‑established on the authorities, which I intend to take the Court to. At this first stage of the construction exercise there is no call to have regard to the extrinsic materials – in this case, notably, the draft Code and Sir Samuel Griffith’s explanation of it – for the reasons given in Brennan v King.

That is, when interpreting a Code provision intended to replace the common law, its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. For those reasons, the starting point, we would say, is to examine the text, context and purpose of the section. That brings me to the second proposition, which is an examination of those very matters that support the meaning proposed by the appellant.

At this point of statutory construction task, “context” is to be understood in its wider sense, and includes surrounding statutory provisions and the statute as a whole. So, it is relevant, of course, when considering the retreat condition to consider section 272 more broadly and, indeed, where necessary, 271, as it precedes it.

Consideration of the text and context, we would submit, points to the retreat condition being a qualification which will bring both cases referred to in the first two clauses of the second paragraph – which are otherwise excluded from the protection of the first paragraph – back within that protection. In so saying, we adopt the words of Chief Justice Malcolm in Randle – and that is the meaning to the retreat condition that President Sofronoff reached in Dayney (No 1) at paragraph [51].

As I have already indicated, the key feature which points to that meaning is the repeated use of the word “case”, coming in quick succession, as it does, in paragraph 272(2). Turning, then, to whether or not a consideration of the purpose of the section assists at this point ‑ ‑ ‑

GLEESON J: Could I ask a couple of questions about text?

MS O’GORMAN: Thank you, your Honour.

GLEESON J: What does “provoke” mean in 272(1) and, specifically, is there a degree of seriousness of the provocation that is necessary to amount to a provocation and assault? In other words, could trivial conduct provoke an assault?

MS O’GORMAN: We would submit that there would be no reason why trivial conduct could not provoke an assault – as, perhaps, best explained by President Sofronoff in Dayney (No 1). That position is reached by reference, in particular, to the use of the indefinite article, “an” assault, in that phrase, rather than the definite article, “the” assault. It would seem to us that, in those circumstances, a relatively trivial provocation could nonetheless bring an accused person into the territory of section 272(1).

GLEESON J: The assault – or it says, “an assault”, but that assault is then explained as an assault:

with such violence as to cause reasonable apprehension of death or grievous bodily harm –

So, it is a particular kind of assault, is it not?

MS O’GORMAN: I think at this point in the provision there are two different assaults that your Honour is making reference to. Certainly, the first is “an assault” which has been offered by the accused person. So, the first part of the provision envisages that the accused person:

has unlawfully assaulted another or has provoked an assault from another ‑ ‑ ‑

GLEESON J: I am talking about the provoked assault.

MS O’GORMAN: Yes, I understand. As I apprehend it, that would be the provoked assault, but what comes next is a separate assault in retaliation, and that is an assault given by the other person back to the accused person:

with such violence as to cause reasonable apprehension of death or grievous bodily harm –

GORDON J: Does that mean we read “from another” as being referrable to that “other” immediately following it?

MS O’GORMAN: Yes. Yes, your Honour.

BEECH-JONES J: Now, I think Justice Dalton addressed this by pointing out that in such a case, you do not get to 272 without going through 271, and I think her Honour said, if you had a trivial provocation, which provoked – it had to provoke the assault to fall within 271. So, if a trivial provocation led to an extremely serious assault, I think her Honour’s analysis was, that would still be within 271, because you could not say that what was provoked was the assault – I think was her Honour’s reasoning. I think treats, as the other cases do, provocation as defined by 268. Is that right?

MS O’GORMAN: Yes, your Honour. With respect to that passage of her Honour’s judgment and, of course, with respect to her Honour, if we apprehend that to be what her Honour intended the judgment to declare, we would suggest that it is wrong. That is because there are plainly cases – and this is one – where there will be an overlap as to the application of sections 271 and 272.

Factual circumstances in any given case might mean that the jury will have to make determinations as to the particular factual circumstances and then as to the application of the defences in sections 271 and 272. For that reason, although the Acts relied upon in reference to Mr Dayney and to Mr Spencer in the trial were the same, as it were, both defences were left to the jury.

BEECH-JONES J: Can I just ask you briefly one question about – you may not have got to context. There is this form of self‑defence in section 31(1)(c) in the “justification and excuse” provisions, which is not too different to what the common law states.

MS O’GORMAN: Section 31(1)(c)?

BEECH-JONES J: Section 31(1)(c), yes. But does not apply for murder or where grievous bodily harm is inflicted or was an element, as I understand it. Our context is, of course, the infliction of death or grievous bodily harm, and 271(2) and 272 deal with that, but 271(1) does not appear to be – it is a form of self‑defence that does not appear to involve the accused inflicting death or grievous bodily harm.

MS O’GORMAN: In 271(1)?

BEECH‑JONES J: Yes.

MS O’GORMAN: Yes, that would be accepted.

BEECH‑JONES J: How does that interact with 31(1)(c)? Are they separate defences or justifications, or am I missing something about how the Code operates? You can take it on board. I do not imagine anything turns on this, but it is just a matter of ‑ ‑ ‑

MS O’GORMAN: May I take that on notice, your Honour?

BEECH‑JONES J: Certainly.

MS O’GORMAN: I had not turned my mind to section 31, but I certainly can do. Thank you.

JAGOT J: I just have one question, sorry. Will you address the significance, if any, in 272(2) of the words “before such necessity arose” – in fact, the words “in either case . . . before such necessity arose”, because on your reading, the two cases referred to in subsection (2), where the words “a case in which” appear, the necessity only arises in the second, not in the first. Whereas the “nor” contemplates that the necessity is relevant to either case, but you cannot – the first case in subsection (2) is a case in which there is no necessity.

MS O’GORMAN: Yes, your Honour, and that is an oddity, we would say ‑ ‑ ‑

JAGOT J: An oddity? Or an indication that they are not the cases, and the cases are actually to be found in (1)?

MS O’GORMAN: We would suggest an oddity, on this basis. The fact that “before such necessity arose” in the third limb seems as though it could only relate to the first and not to the second limb, is an issue which arises ‑ ‑ ‑

JAGOT J: I would say the other way around – seems to relate only to the second and not to the first case.

MS O’GORMAN: Pardon me – of course.

JAGOT J: Yes.

MS O’GORMAN: Is an issue which arises on either construction, and so, on that point, it is neutral.

JAGOT J: Does it? Because if the cases are the cases simply in (1), that is, a case of a person who “has unlawfully assaulted another” and something results, then the necessary condition attaches to that. If the second case is “has provoked an assault from another”, the necessity condition also attaches to that. If they are the cases – so, if (1) was understood to read when, in a case, a person has unlawfully assaulted another or, in a case, has provoked an assault from another, et cetera, et cetera, et cetera, then the necessity would attach to both of those cases.

MS O’GORMAN: That is on the third construction, your Honour ‑ ‑ ‑

JAGOT J: I have not followed the numbering that you have given to construction – that is the only way I can see the necessity condition to be able to logically be in either case. If you assume that in (2), after the semi‑colon, there is a new thought altogether – make it a notional (3). I know it is not that, but make it a notional (3), drop it down and back to the margin, then you ask which is a case in which there can be the condition in either case before such necessity arose. You would answer that: the only way you can get there is (1), it seems to me.

MS O’GORMAN: Your Honour, our answer to that would be that even on that first construction – if your Honour is saying (1) meaning that it can only be a reference back to ‑ ‑ ‑

JAGOT J: Subsection (1).

MS O’GORMAN: ‑ ‑ ‑ when a person has unlawfully assaulted another.

JAGOT J: On the one hand, in one case, or in another case, “has provoked an assault from another” – that is the other case. The words after the semi‑colon are referring to. If that is so, then at least you get a meaning that enables in either case.

MS O’GORMAN: Meaning would be given in that case, your Honour. The difficulty that we would say in interpreting that third limb in that way is, as her Honour Justice of Appeal Dalton observed, there is no other place in which there is disjunctive meaning given to the assault and the provocation referred to in that paragraph.

GORDON J: Can I ask it in a different way. If you take the first limb of subsection (2) as being someone starting with that intent identified, and then the “nor” is someone who then changes their mental element before the necessity arose, does one not read necessity into that first limb? In other words, is a need for necessity, in effect, assumed. As I read those two limbs, the first one is dealing with someone who starts with an intent to kill or do grievous bodily harm.

MS O’GORMAN: Yes.

GORDON J: The next is someone who does not start with it but changes their mind on the way through before the necessity arose. So, one is looking at it in that context. Is it possible to read in an assumption of a need for necessity because you started with the relevant intent, and that is why the “before such necessity arose” – you do not need it in (1) because they started with the intent, but it is requiring a retreat to be imposed on you because you had started with the intent. There was no necessity and therefore now we need necessity.

MS O’GORMAN: Yes, your Honour. On the construction that we propose, that would be read into, in an inferential way, those words in the third retreat condition – the third condition.

GORDON J: Is that different to the answer you just gave to Justice Jagot? Because I did not quite understand that was the answer you were giving. I am not being critical, I just want to make sure I understand what the argument is.

MS O’GORMAN: No, and it is my limitation perhaps in – it is grappling with the three limbs as opposed to the two propositions of the commencement with an assault and the commencement with a provocation in the first paragraph of section 272(1).

BEECH‑JONES J: Ms O’Gorman, just to pick up what Justice Gordon said, is the premise, though, both limbs assume a necessity because they are operating on the assumption that subparagraph (1) is otherwise engaged, and you do not engage subparagraph (1) unless there is the necessity to use the deadly force?

MS O’GORMAN: Yes.

GLEESON J: Is it fair to say that that would mean that phrase:

before the necessity of so preserving himself or herself arose –

should be read distributively across the two cases that are labelled as cases in 272(2)?

MS O’GORMAN: Yes, on our construction that would be so. My initial answer was intended to convey that we accept, as I think most of the judgments addressing this last limb have said, that there is some difficulty attended by an attempt to construct it because of the way it is worded and because of the way the paragraph is structured, and so it does not read easily or clearly, but we would say that those words “before such necessity arose” were distributed throughout that entire paragraph.

GLEESON J: At some stage, I think it would really help me if you could give some examples of a scenario in which you would say that each of these two labelled cases in 272 might operate.

MS O’GORMAN: When your Honour says “the two labelled cases”, are you referring to the first two limbs of 272(2)?

GLEESON J: Yes.

MS O’GORMAN: I might need to return to that question if this immediate example does not prove apt, but the first could be engaged, in my submission, in a case in which a person was a home invader and did intend to cause grievous bodily harm to somebody in the home in order to overcome them and thereby invade the home, but where they are met with an assault either by the person that they have in fact first assaulted, or by somebody else in the home who is threatening them with lethal force. Then, in those circumstances, on our construction, the home invader would be required to retreat, at least as far as is practicable, before being entitled to defend him or herself against that lethal attack. That, I think, is one example with respect to the application of the first limb.

That example might also address the second as well, if that home invader did not first attempt grievous bodily harm on a person in the home, but then, in the course of the invasion of the home, nonetheless did attempt to cause grievous bodily harm to somebody there before the necessity to do so arose because the person in the home gave them lethal force.

BEECH-JONES J: Or would it cover the home invader who did not enter with that intent, who is confronted with some minimal level of resistance, then forms the intention to kill, then encounters resistance of a deadly nature? In that circumstance, they would have formed that intention before the necessity to preserve their life arose.

MS O’GORMAN: Yes, your Honour, it seems to us that that would be another example. Does that answer your Honour Justice Gleeson’s question sufficiently for present purposes?

GLEESON J: At this stage, yes.

MS O’GORMAN: Thank you. Can I say something briefly about the extent that we would submit that a consideration of purpose in this context can assist an understanding of the construction of the retreat condition. On one view of it, we would say that a consideration of purpose assists the meaning that we would seek to be given to the retreat condition. Say that in this context, the purpose of section 272 is to provide for the defence of self‑defence even in circumstances where an accused person first:

unlawfully assaulted another or has provoked an assault from another –

as distinct from circumstances in which an accused person was initially blameless, such that section 271(1) would apply. So much and so far is apparent from the terms of section 272(1). In such a case, the accused person is nonetheless justified in using force in self‑defence, even though:

such force may cause death or grievous bodily harm.

if the circumstances in that paragraph are met. The first two clauses of section 272, then, limit the availability of that defence by withdrawing it in a case in which the accused person’s initial assault was one by which the accused person intended:

to kill or do grievous bodily harm –

and also in a case in which the accused person tried to kill the other or cause grievous bodily harm to the other before there was a need for self‑preservation.

We would submit that it may be reasonably confidently deduced from this first two clauses of section 272(2), that the purpose of section 272(2) is to provide for the defence of self‑defence, notwithstanding the accused person was the first to use force against another, or provoked the other’s initial use of force, except in circumstances where the accused person was the first of the two to use lethal force. In our submission, that is consistent with the text and construction of 271 and 272.

GORDON J: Is that to say anything different from what President Sofronoff said in Dayney (No 1) at [53]?

MS O’GORMAN: No, it is precisely what President Sofronoff said in that paragraph, your Honour. However, we do not press the point beyond that submission, and it may be thought, we would accept, that a consideration of purpose does not truly assist too much here, because where one is attempting to define or give meaning to the retreat condition, it is in some ways, and on some views of things, a circular argument to look at the initial two conditions, or two limbs in section 272(2), in order to see whether or not that defines the bounds of section 272(2) more broadly, including the retreat condition. If that is so, and if a consideration of purpose cannot assist terribly much, then, of course, that consideration is neutral as between the two constructions advanced by the parties. On that basis, we return to our initial submission that the simplest and clearest way to interpret section 272(2) is in the way that the appellant would propose.

So, those are the submissions that I wish to make with respect the submissions that we have made in our written outline as to why the appellant’s submission – or appellant’s construction – ought to be preferred. Can I turn to the third position, then, which is that a consideration of the text, context and purpose of section 272 does not, in truth, support to the construction urged by our learned friends. The Crown contends that that phrase, “in either case”, refers to the disjunctive case of the case of a person using force which causes grievous bodily harm or the case of a person who has killed another. This interpretation is supported by none of the rules of statutory construction.

First, we would make the point that not only the repeated use of the word “case” support the meaning contended for by the appellant, it does go so far as to undermine the meaning contended for by the Crown. That is because the use of the words “a case” in each of the three limbs in section 272(2) suggest that the words which follow after describe a single case – that is, that what follows after “a case” must be read as a whole for the entirety of that clause up until the next semicolon, and that is the single case described by the words – or introduced by the words – “a case”.

On the Crown’s construction, it would have to be read such that the words “a case” in fact, then, go on to describe two disjunctive cases – that is, a case in which a person using force which caused grievous bodily harm first began the assault with intent to kill or do grievous bodily harm to some person, on the one hand, and the second case being a person which the person using force which causes death first began the assault with intent to kill or do grievous bodily harm to some person. In that way, the paragraph is split into a number of different “cases” which does not read grammatically easily or elegantly.

Secondly – and, perhaps, more importantly – the phrase “death or grievous bodily harm” is used throughout sections 271 and 272 in a composite way. This is why, we submit, Justice of Appeal Dalton was correct in Dayney (No 2), at paragraphs [40] and [41], to hold that this construction is untenable. Examples in provisions providing for limits of the availability of a justification or excuse to exclude in a composite way the use of force which is intended or likely to cause death or grievous bodily harm are outlined in our written submissions, and can be found, variously, in sections 257 and 258, which deal with preventing escape from arrest; section 269, which, of course, provides for provocation; and section 270, which provides for an excuse in respect of prevention of repetition of insult. At paragraph [41], Justice Dalton said – and we would submit, respectfully, correctly:

There is no suggestion anywhere in the sections that a different result flows from a consideration of death (or killing) on the one hand, and grievous bodily harm on the other . . . It therefore seems odd that only in the third case would Sir Samuel Griffith have decided to make that express.

Respectfully, we consider there is much force in that observation. The third reason that we would suggest that there is not support found for the meaning proposed by the Crown is that, read in the way proposed by the Crown, an accused person, having assaulted the deceased in a way which did not initially justify a lethal response, or having provoked the deceased, but not to an extent which justified a lethal response, would then, prior to the subsequent lethal assault by the deceased, be required to retreat from the conflict before being able to avail himself or herself of the protection in section 271(1), which seems incongruous, and not only incongruous, but liable to be made very difficult to apply practically as people go about their ordinary affairs, because it creates uncertainty as to when criminal liability will attach or not attach in the course of a fight.

GLEESON J: How can you call that a matter of “ordinary affairs”?

MS O’GORMAN: I mean at the time that people are involved in a fight, as opposed to subsequently – during, perhaps, a trial, when determinations as to criminal liability are being made after the fact.

JAGOT J: Given that whole predicate of 272 is either, one, a person who has unlawfully assaulted another, or two, a person who has provoked the assault of another – that is the entire predicate of the section. Given that the third qualification in subsection (2) is qualified by the words “as far as was practicable”, why is it not the case that in either the case of you assault or you provoke the assault of another, if it is reasonably practicable to any extent to retreat – quit, whatever, decline – why should you not have to?

Why is the purpose not better served – if it is not reasonably practicable, then it is not reasonable or practical. You are the person who did the provoking or unlawful act, you may or may not have an opportunity when the other person assaults you back to retreat. If you do, why should you not have to in every case, being the person who started the whole thing? Why would you confine it as a matter of purpose? I am looking at purpose, now, and context, not text.

MS O’GORMAN: Can I answer that question in this way, your Honour. As to whether or not the accused person retreated in circumstances where section 272(1) might apply, we would submit that it will always be a relevant consideration whether or not the person retreated as far as practicable before engaging in the final, lethal assault, because that is a matter which will be relevant as a matter of factual circumstances to whether or not the accused person believed on reasonable grounds that it was necessary for the person’s preservation from death or grievous bodily harm to use force in self‑defence.

So, because a jury would necessarily need to consider that element of the defence, and to exclude it or otherwise, then the jury will necessarily be considering as a matter of fact whether or not there is an opportunity to retreat. The difficulty is that the question raises the proposition as to whether or not that is required as an additional bar as a matter of law that is imposed in all cases – that is, in cases where a person has unlawfully assaulted another or has provoked an assault. Our submission is that, read as a matter of text and context – so, not necessarily as a matter of purpose – it simply supports the construction that we propose.

JAGOT J: I understand that, but in one sense, if it is embedded already in (1), then that might support reading the third qualification as a standalone, in the sense that it is just clarifying what is in (1). If it said: nor unless, before such a necessity arose; you would have to read it as a reference back to (1), you would have to read it as a reference back to either (1) being unlawful assault or provoke. You would never read it as a reference back to (2) but for the words “in either case”. It is the words “in either case” only that bring the concept of (2) into play.

MS O’GORMAN: Yes, and yet those words remain, as we have said in our outline, stubbornly present.

JAGOT J: No, no, I understand you say they are intractable. I get that.

MS O’GORMAN: And then I probably cannot take my answer to your Honour’s question any further.

JAGOT J: Thank you.

BEECH-JONES J: Ms O’Gorman, what do you say about the word “nor”, which I think is the textual support said to be for the respondent’s argument – the words “nor, in either case”, does that add anything to the textual analysis?

MS O’GORMAN: In our submission it does not. It is consistent with the way the earlier limbs of section 272(2) are commenced, and then read with the following words in that phrase “in either case” and until a full stop simply make it clear, in our submission, that it is a qualification to the earlier two exceptions which bring it back into, or bring an accused person, back into the protection of 272(1).

BEECH-JONES J: I see.

GLEESON J: Why are the other words:

to a case in which the person using force which causes death or grievous bodily harm

repeated in subsection (2)?

MS O’GORMAN: It may be that an answer to that is because if the offence which the accused person committed was something less than grievous bodily harm or death, then it would not be necessary to resort to paragraph 272(2) in any event because, in that case, the response given by the accused person – that response, thus constituting a criminal offence – would necessarily have been proportionate to the lethal force offered by the deceased person.

BEECH-JONES J: Section 272(1), the reference to, has the words at the end:

although such force may cause death or grievous bodily harm.

Is what you are saying, 272(1) could be invoked in a case where the accused did not actually in that particular – did not cause death or grievous bodily harm?

MS O’GORMAN: Yes, it can and is routinely done.

BEECH-JONES J: So, (2) is only cutting away from that in those cases where that happens.

MS O’GORMAN: That is so, providing the limitation to the availability of an accused person to avail themselves of that protection in circumstances where the outcome was the serious outcome of death or grievous bodily harm and not a less serious outcome of assault occasioning bodily harm or common assault.

JAGOT J: The other issue that might speak against you – just so you can deal with all of them – is (2) starts with “this protection”, that is obviously a reference back to the protection in (1); “nor” is a shorthand, so it could read, this protection does not extend to a case. The “nor” you could read as, this protection also does not extend to a case in which, et cetera, and then the second “nor”, this protection also does not extend to a case. Then you have your “in either case” issue, which I know you say is intractable, but leaving aside the words “in either case”, it is a bit odd for the first qualification in (2) clearly to refer to (1), the second qualification in (2) clearly to refer to (1), and then the third to refer to the two of the exclusions that are in (2), as opposed to back to (1).

MS O’GORMAN: Your Honour, we would submit that the word “nor” in each case can be read as shorthand for the words which commence the entirety of the paragraph, but specifically the words “This protection does not extend”, and it would stop there, because then, in the second limb of paragraph 272, the words follow “to a case in which”. Then, if one reads those words into the commencement of the third limb, that would be consistent with the construction that we would propose ought to be given, because if one replaced the word “nor” with the words at the beginning of paragraph 272(2), then that condition would read as follows: this protection does not extend in either case.

JAGOT J: As you say, it all comes back to “in either case”.

MS O’GORMAN: Yes.

JAGOT J: Yes.

MS O’GORMAN: I think I had concluded the submissions that I wished to make with respect to our proposition three, and that leads me, then, to the submission in proposition four, which is, on a proper analysis of the text, context and purpose of the retreat condition read in the context of 272 more generally, there is no ambiguity as to the meaning of the retreat condition. That is our primary position. If that were accepted, then there is neither any need nor any warrant to go back and consider the extrinsic materials in the way of the draft Code or in the way of Sir Samuel Griffith’s letter to the Attorney‑General which explained it.

However, if it is not accepted that there is no residual ambiguity with respect to those two clauses, then our further submission is that when one does have regard to the extrinsic materials then those extrinsic materials support the meaning advanced by the appellant, and, in that regard, we respectfully say that her Honour Justice Dalton was wrong to conclude that the extrinsic materials support the alternative construction. Might I just briefly now take your Honours to why it is that we say those extrinsic materials support the construction that we would have given to the retreat condition. In order to do this, it would be necessary for your Honours to have part E of the joint book of authorities in front of you. I will only be taking your Honours to two separate pages therein.

Now, perhaps, before I do take your Honours to those two pages that I foreshadowed, I step back, briefly, and ask your Honours to have regard to Justice Dalton’s decision in Dayney (No 2), starting at page 16. In particular, paragraph [40]. At page 16, and at paragraph [40] in particular, her Honour commences her assessment of the text of section 272, and that goes over on to page 17. At paragraph [43], her Honour concluded that a review of the text of 272 did:

not permit an entirely literal construction; that is, it is ambiguous.

Her Honour then turned from that point to undertake a historical context and legislative history of the Code analysis, which traversed the following pages of her decision through to page 20, and, in particular, paragraph [54]. It seems upon an analysis of those paragraphs that her Honour concluded that by reference to the extrinsic materials – that is, to Sir Samuel Griffiths’ draft Code and his explanation of it – and by reference to the 1880 Bill upon which the draft Code was said to be derived, her Honour concluded that those matters supported the contention contended for by the Crown.

I would ask your Honours to have regard to the rhetorical questions that her Honour asked herself at paragraph [54]. Firstly, in paragraph [54], her Honour draws the conclusions she considered were available upon the review of the extrinsic materials. Her Honour said:

it seems to me unlikely that there was a deliberate change.

In the way in which Sir Samuel Griffith drafted the Code as compared to the common law upon which it was based at that time. These questions are relevant:

Why would Griffith, who could write so clearly, deliberately embark on making a significant change to the common law, but use ambiguous language to do so? Why would he not signal or explain the change in his marginal notes, but instead reference the 1880 Bill? And lastly, why would he make a change which, in its substance, complicated the existing common law?

It is necessary now to turn to part E of the joint book of authorities and look to the explanatory letter written by Sir Samuel Griffith and the provisions of the Code therein. In that regard I invite your Honours to turn, firstly, to page 1185.

GAGELER CJ: You are going to provide us with answers to all those questions, are you?

MS O’GORMAN: It might be that there are answers to be given. It might be that in some cases there is no answer but, nonetheless, the absence of an answer does not assist the construction that ultimately her Honour Justice of Appeal Dalton reached. At page 1185, your Honours will see reference to section 279 of the draft Code, that is:

Self‑defence against Provoked Assault.

What is set out there in the text is almost exactly what now appears in section 272. In his letter to the Attorney‑General providing this draft Code, his Honour made notes in the margins on the left and your Honours will see next to section 279 the words “Compare Bill of 1880, s 57”. Her Honour Justice Dalton appeared to consider that the notation “Compare Bill of 1880, s 57” supported the conclusion that Sir Samuel Griffith intended to base section 279, now 272, on the common law as existed at the time, and that is on the basis that the Bill of 1880 was in fact said to have been based on the common law at the time, and so in that way it was indirectly based on the common law.

Could I ask your Honours, please, to go to page 1189. Your Honours will see there, section 58 of the Bill of 1880 and that is the section which Sir Samuel Griffith has said in his draft Code must be compared to what he has put as what is now section 272.

BEECH-JONES J: I think it was 57, was it not?

GORDON J: It is 57 at the top of the page.

MS O’GORMAN: My apologies. Quite correct, 57 at the bottom of page 1188 and then over to the top of page 1189. My apologies. It is quite clear that there are at least two very obvious changes made by Sir Samuel Griffith to the Bill of 1880. The first, of course, is relevant to the question before this Court, that is, the construction to be given to the third condition, because in section 57 of the draft Bill the wording is:

Provided also, that before such necessity arose he declined further conflict, and quitted or retreated from it as far as was practicable.

That is indeed consistent with the common law as it applied to self‑defence at the time. But those are not the words that Sir Samuel Griffith used in drafting section 279 of the Code. Rather, he changed those words in circumstances where the earlier clauses were not changed, and did embark on a deliberate change using unambiguous language to do so by inserting the words “nor, in either case, unless”. That is the first change which is apparent.

Support for the proposition that he did make change to the existing common law at the time, despite not having drawn attention to it in the marginal note – which simply said, see clause 57 – is found in the fact that clause 57 – or section 57 of the draft Bill – justifies force, that is, force of any kind, and your Honours can see that in the second line of the section at the bottom of page 1188. Whereas Sir Samuel Griffith imported into what was then section 279 and now 272 a requirement that the force was such as was reasonably necessary for such preservation. That is another example of Sir Samuel Griffith having made a deliberate change to the law without having drawn attention to it in the marginal note.

GAGELER CJ: When Sir Samuel used the word “compare” in the marginal note, did he use it with any particular meaning?

MS O’GORMAN: Our submission is that he did not. Firstly, can I answer it in this way, in the letter itself, we have not been able to find explanation given by Sir Samuel Griffith as to what he meant when he says “compare”. That is the short answer. We would say that there is no textual indication that it meant anything in particular, and certainly not that it meant that this intended to be a replication of the common law – or indeed, the provision in the draft Bill – because when one has regard to the two factors that I have just identified to your Honours, it is quite clear that there are changes made by Sir Samuel Griffith.

That position is made even more stark when, if one has regard to page 1184 of the joint book of authorities, and in particular to section 276, which is the “Defence of Provocation”, now section 279. I do not intend to take your Honours to that in detail because that passage is as it appears in section 279 now. That is, the defence of provocation as drafted by Sir Samuel Griffith. That also, your Honour Justice Gageler, says “compare Bill 1880 section 58”, and when one goes to section 58 of the Bill, one will have to turn to page 1189 of the joint book of authorities. Your Honours can see there, about a third of the way down the page, what it is that Sir Samuel Griffith is asking the Attorney‑General to compare. That provision is in vastly different terms to what became the defence of provocation in the draft Code.

It is amply clear, on our submission, your Honour, that the word “compare” certainly does not mean this is based on, and does not represent a change from. In cases that I have just taken your Honours to, it is quite clear that there has been significant change.

BEECH‑JONES J: Ms O’Gorman, I am showing one of my limitations, but what does the Latin word “ib.” mean, which is the other annotation we get on page 1184 for 277? You can take it on board if you need to.

GORDON J: Is that not just saying it is also in relation to actually the same Bill, possibly?

MS O’GORMAN: Yes. We think it means “ibid.”.

BEECH‑JONES J: I see.

GAGELER CJ: I am not sure we have the original Code, but did Sir Samuel pick up this drafting style of using provisos, or did he shy away from that?

MS O’GORMAN: If I could answer it in this question: sections 276 and 279 of the draft Code – now 269 and 271 of the present Code – are in the same terms. My recollection of the lengthy letter to the Attorney‑General is that Sir Samuel Griffith might have gone so far as to say he had moved away from that particular language with respect to proviso, but I would appreciate the opportunity to confirm that that is correct and then take your Honour to the pinpoint, if I may.

GAGELER CJ: I would appreciate that, yes.

MS O’GORMAN: I will do that while my learned friend is making his submissions, if I may.

GAGELER CJ: Thank you.

MS O’GORMAN: So, returning to her Honour Justice Dalton’s rhetorical questions in paragraph [54] of Dayney (No 2):

Why would Griffith, who could write so clearly, deliberately embark on making a significant change to the common law, but use ambiguous language to do so?

We would say that there is no ambiguity in the language chosen by Sir Samuel Griffith when one compares the draft Bill that he drafted with the Bill of 1880, because the words “provided also, that” in the third limb of the Bill of 1880 are replaced with what we would say is unambiguous language, “nor, in either case”, in the provision that he drafted. With respect to the second question:

Why would he not signal or explain the change in his marginal notes, but instead reference the 1880 Bill?

We have explained that whilst we might not know why he did those things, he certainly did. One can see that there are many changes made in his draft Bill from the 1880 Bill, despite the fact that the marginal notes simply say “compare”. Returning to the last of those rhetorical questions:

And lastly, why would he make a change which, in its substance, complicated the existing common law?

I have taken your Honours to our submissions in respect of cases where he has done exactly that: made changes to or complicated the existing common law in both the provision which is now provocation – it is markedly more complicated than the provision in the draft Bill – and also made a change with respect to section 272, because of the importation of the requirement for reasonable necessity that did not exist in the Bill of 1880.

To that extent, our submission is that if it is concluded that having regard to text, context and purpose there remains a residual ambiguity with respect to the retreat condition that when, in fact, one has regard to the extrinsic materials, they support our conclusions and not the Crown’s. It is, of course – if I can say this by way of conclusion with respect to the fourth proposition – important to note what her Honour Justice Dalton said – with respect, correctly – in paragraph [54], that:

the Griffith Code . . . did not attempt merely to declare the existing criminal law –

as Griffith understood it to be at that time, but was, in fact, intended:

to “declare, consolidate and amend” it.

GORDON J: Can I just raise one aspect before you close the letter from Sir Samuel Griffith. We do not want to overstate it, but on page 1235 of the materials, it is apparent, at least to some extent, that he is criticising the Bill of 1880, but he does make the point that the draft Code is based on that Bill.

MS O’GORMAN: Yes, he does make the point that it is based on the Bill, but our submission is that it is quite clear that although it might be based of the Bill, in the sense that significant passages or provisions are derived from that Bill and not from other source, nonetheless, when Sir Samuel Griffith drafted or prepared individual provisions within the draft Code, there were obvious and immediately discernible changes from the provisions in the draft Bill.

So, it is certainly not disputed on our case that the draft Code was based on that draft Bill, or, indeed, that the draft Bill was intended to reflect the common law as it existed at that time. The point we have simply tried to make is that Sir Samuel Griffith did not intend, so far as can be discerned from a comparison between the documents, simply to replace or replicate the provisions of the draft Bill.

In any event, we would make the submission that it is difficult and somewhat dangerous to embark on an exercise which attempts to divine Sir Samuel Griffith’s subjective intentions, in respect of the drafting of the Code, and that the extrinsic materials should not be used, of course, in place of the clear meaning of the text. The clear meaning of the text, in our submission – as I come back to at the beginning – is unambiguous upon a consideration of the text, context and purpose.

GORDON J: The reason why I ask is because I have not undertaken a complete analysis of the draft Code, but it is clear that, in at least the way in which the marginal notes are dealt with, there is a distinction drawn between a direct reference to the Bill of 1880 and sections within the draft Bill, as distinct from language which reads “compare the Bill”, and the same approach seems to be adopted in relation reliance on what was then the Italian Penal Code, as well. So, you might have a look at that as well, if you might.

MS O’GORMAN: It seems, your Honour, as though, at least from the letter to the Attorney‑General, that Sir Samuel Griffith indicated that, in some places where he considered the provision was merely stated in the common law, he thought he need not do anything more than say that, and in the marginal note it simply references the common law.

GORDON J: That is my point. He seems to say, common law, the Code, when he is seeking to rely – well, I do not know – and then draws a distinction – what that distinction is at the moment, I do not quite understand – between direct reliance and “compare”, and seemed to address it in a similar way in relation to the Italian Penal Code – that is, the treatment of the marginal notes. I do not know where that takes you, but I think that there is at least some distinction drawn.

MS O’GORMAN: Yes. In truth, we would say that more attention ought to be given to an actual comparison of the provision in the draft Code, on the one hand, and the provision in the Bill of 1880 – which is, relevantly here, the provision that it is said to be sourced from – rather than the words “compare”, if “compare” were to be read as, this is intended to replicant. Because, in fact, when the comparison is made, it is quite clear that the draft Code provision does not replicate the Bill of 1880. So, where different words are used, it is reasonable to assess that there was an intention to import a different meaning to that provision. That is as far as I wish to take that submission.

We would say, then, that whether or not the task of construction ends at an assessment of the text, context and purpose, or whether it extends to a consideration of the historical and extrinsic materials here, ultimately, the conclusion that one would reach is that, even if the provision in 272(2) – the third limb – is, perhaps, awkwardly drafted in some respects, nonetheless, the meaning is unambiguous, in the end. It must be a reference to the earlier two exceptions which are excluded from section 272(1), unless brought back in by the third limb, which is the subject of this discussion. If, ultimately, that construction is accepted, then the appeal ought to be allowed. We understand that the Crown concedes that this is not a case in which the proviso ought to be considered for application.

Those are my submissions.

BEECH-JONES J: Ms O’Gorman, can I just deal with just two matters. Firstly, can you look at paragraph 50 of your submissions in‑chief – your written submissions. It may be me, but it reads:

it is apparent that the three clauses provide for three cases in which the protection in s 272(1) does not apply –

and then lists them. Is that a mistake? I do not understand that to be your argument. So, we just ignore it?

MS O’GORMAN: No, it is probably inelegant drafting. The point that we attempt to make there is that the three clauses do provide, when read in this way – and this would be harking back to her Honour Justice Jagot’s question to me about whether “nor” could be replaced with “this protection does not extend”. Read it that way, the first clause provides for one case, the second clause provides for another, and the third provides for the case where neither of those cases in which protection in section 272(1) does not apply, “unless, before such necessity arose”. I have probably overcomplicated things. Maybe by way of shorthand, could I say that we say that there are two cases in section 272(2), and I apologise for making it more complicated than need be.

BEECH-JONES J: All right. The other things is, I understand it is common ground that Justice Bowskill directed the jury in accordance with the majority in Dayney (No 1).

MS O’GORMAN: Yes.

BEECH-JONES J: As I understand it, the point of her Honour’s directions – where that happened is in page 61 of the core appeal book, at the top of the page. Her Honour does say, by reference to a question trail – I do not think we have the question trail in the materials – it is a matter for the parties, but is there any particular difficulty in providing the question trail that reflects that?

MS O’GORMAN: No, I do not understand that there would be. I think the Crown would have access to it.

BEECH-JONES J: Right.

MS O’GORMAN: In any event, your Honour, starting at page 54, her Honour Justice Bowskill identified, at line 37, the five matters for consideration. In respect of each one of them, a question which was posed in the question trail, is identified in each case.

BEECH-JONES J: I see.

MS O’GORMAN: So, her Honour addressed the proposition that might need to be addressed and then, as an example, on page 55 of the core appeal book, dealing with the first of those matters – the first element, I suppose – that paragraph concludes:

So the question for you is –

and then the question is put. That is repeated for each of the five matters in each case.

BEECH-JONES J: I see.

MS O’GORMAN: So, the questions can be discerned, but if it is easier, we could provide the question trail.

GAGELER CJ: Yes, you should do that.

MS O’GORMAN: Yes, thank you, we will. Was that ‑ ‑ ‑

BEECH‑JONES J: That was the second question. Thank you.

MS O’GORMAN: Thank you, your Honour.

GAGELER CJ: Yes, thank you, Ms O’Gorman. Mr Wallis.

MR WALLIS: Thank you, your Honours. Can I deal firstly – and I am not sure whether this is a satisfactory answer, so it is probably not the best place to start – but ultimately, can I deal with the question about what Sir Samuel Griffith meant by “compare Bill of 1880”. There is not a whole lot of illumination that can be drawn from his Honour’s letter to the Attorney‑General, but there are some points which might provide some guidance.

Within part E of the joint appeal book, at page 1235, his Honour spoke about the draft being intended to encapsulate the common law, and it says this about halfway down the second paragraph:

In the Draft now submitted I have attempted to state specifically all the conditions which can operate at Common Law as justification or excuse for acts prima facie criminal, but have not formally excluded other possible Common Law defences.

And then puts a caveat on that in the next sentence. At the top of the next paragraph, there was then criticism – my language, not his Honour’s – of the Bill of 1880 and the draft Code on which it was founded. In the penultimate paragraph there is further combination – or a culmination of what his Honour said:

In the result I have embodied in the Code a good many provisions which are not to be found in the Bill of 1880, but which I believe to be either correct statements of the Common Law or propositions which will commend themselves as rules that, if they are not, ought to be, recognised as the law.

Can I just, at that juncture, take your Honours back to the draft Code in and of itself.

JAGOT J: The next sentence may also be relevant:

I have also ventured in a few instances (to which special attention is in each case . . . principles which, perhaps, are not at present recognised –

MR WALLIS: Yes. The principles not recognised, one that stands out – and to purchase upon an observation that our learned friends make with respect to the differences between what is now section 272(2) and what I will call the proviso within section 57 of the draft Bill, the requirement for reasonable force, if I can go to – I have just lost my place now. It starts at, again, book E, 1183. What is there is section 275, titled “Provocation”. Over the page, relevantly, is then a footnote and its into that that says – if my eyesight does not escape me:

Little is to be found in the books on the subject of provocation except with reference to homicide.

Then, what his Honour goes on to speak of is that there is, perhaps, in his view, a need to import the notion of provocation as it extended to homicide at common law more generally, and place that at the forefront of the Code. Because of that, when one then goes to what was section 279, where it says “Compare Bill of 1880, s. 57”, which is on the next page, that might be an answer to why his Honour thought it necessary to put in such force as is reasonably necessary, a concept ‑ ‑ ‑

GORDON J: Where he says “See Accompanying Letter” at the end of that footnote, what is he referring to? Is that a reference back to the bits you have taken us to?

MR WALLIS: As I understand it.

BEECH‑JONES J: Mr Wallis, did the common law recognise the retreat condition as applying to all forms of self‑defence, not just provoked assaults?

MR WALLIS: In our submission, yes, and that can be derived from what this Court said in Howe’s Case. Howe stands apart from the case here, though. There are some limitations on its application, because, of course, Howe, if it had been considered within the construct of the Queensland Code, would have fallen under section 271, not 272. We purchase upon this to some extent in our response, and also within our outline of oral submissions, that there is some significance to the notion that section 271 speaks of a justification as opposed to an excuse.

BEECH‑JONES J: Just going back, it is quite clear Sir Samuel Griffith was modifying the common law.

MR WALLIS: I accept that. Modifying it to the extent that it was a clear comparison, but in our submission, there is then no distinction or no difference to be understood in the way his Honour approached the provisos, that is, that there were three independent provisos as they existed, because of the language. His Honour, of course ‑ ‑ ‑

GORDON J: Sorry, when you say it is clear there are three independent provisos because of the language, that is by reference to the text?

MR WALLIS: Yes.

GORDON J: That is what you hang your hat on, in that sense.

MR WALLIS: Hang my hat on in that sense, yes. I will come to the text in a moment, but ultimately what our primary submission is, is that when one compares and contrasts as against the Bill of 1880, and what his Honour’s section 279 then was – that is now 272 – is that there are differences, but those differences need to be understood to be limited.

Where it originally indicated in section 57 of the Bill of 1880 provided also that should not be given any different meaning to “nor, in either case, unless”. What his Honour Sir Samuel Griffith was doing, though, was, in our respectful submission, focussing more particularly the conditions or the limitations of the protection. Of course, when one reads section 57 of the Bill of 1880, the limitations would have extended to all cases, not just those cases that involved the causation of death or grievous bodily harm. We say that is the purpose of the distinction. The cases to be considered are the result and consequence – that is, the causing of death, or the causing of grievous bodily harm.

GAGELER CJ: Can you give a meaning to the words “in either case” that makes sense of them, or are they just superfluous?

MR WALLIS: They are not superfluous, because that would be inconsistent with what Brennan says about giving meaning to the text in and of itself. Our submission is “either case” has to be understood in the composite “nor, in either case, unless”, and “either case” can only refer back to the cases of death or a case of grievous bodily harm – those are the “either cases” that the Court is speaking of. In our respectful submission, in Dayney (No 1) the language employed by their Honours Justices Fraser and McMurdo was that the interpretation given was consistent with the construction by the respondent in that particular case.

What the primary question, though, that their Honours were answering – as her Honour Justice Dalton was answering with the concurrence of the other members – was whether the third provision was an independent provision. Her Honour Justice Dalton did not go as far to say there was the same limitation that Justices Fraser and McMurdo said, we accept that ‑ ‑ ‑

GORDON J: You accept – what? Do you accept the limitation? Sorry, I did not quite understand what you were accepting.

MR WALLIS: We accept that Justice Dalton did not come to the conclusion in the same way that their Honours Justices Fraser and McMurdo came to it. There was primacy given to the language of the provision, or the text of the provision, by their Honours Fraser and McMurdo. As a result of the statutory construction at the first stage, looking at the text itself, there was no ambiguity.

GLEESON J: Do you say that the words “in either case” are an abbreviation of the words that appear twice:

a case in which the person using force which causes death or grievous bodily harm –

MR WALLIS: That is precisely our argument. There are a number of reasons that underpin that, in our respectful submission. They can be found equally within the text, the context and the purpose of the provision itself, having regard to a number of matters.

Before I leave the letter of his Honour Sir Samuel Griffith, there is perhaps one more indication of some assistance – and I say “some assistance”, so I am placing a caveat upon it – it is at page 1242, under the heading “PRINTING OF CODE”, and it starts about halfway through the first paragraph. I will not read it to your Honours, but the sentence starts:

When the source is Statute Law –

BEECH‑JONES J: Sorry, how far down?

MR WALLIS: About halfway down from “PRINTING OF CODE” to:

When the source is Statute Law –

the first paragraph.

JAGOT J: Sorry, is that 1142?

MR WALLIS: Page 1242.

JAGOT J: Page 1242, sorry.

GAGELER CJ: Perhaps you can read out the purple prose.

MR WALLIS: I can. It says this:

When the source is Statute Law, the corresponding provisions of the Statute are reprinted from my Digest of 1896. In other cases the sources or analogous provisions are indicated by a reference to the section of the Draft Bill of 1880 or other authority to which I have had recourse, with such Notes as appeared to be desirable to elucidate any particular provision. When, however, the proposed provision is undoubted Common Law, I have not thought it necessary to do more than say so.

What his Honour was signalling, in our respectful submission, is that there was a distinction to be drawn as between section 57 of the Bill that he compared it against and what was then 279 in his Honour’s draft, but that distinction did not continue or extend to a distinction as between the limitations of the defence.

GAGELER CJ: Mr Wallis, we will take the mourning adjournment now.

MR WALLIS: Thank you, your Honour.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

MR WALLIS: Before I embark further on our submissions, over the adjournment we have been able to secure the question trail for your Honours. If your Honours require that now, I can hand five copies up; otherwise, we can file it in the usual course.

GAGELER CJ: You can do it at the end of the hearing.

MR WALLIS: Thank you, your Honour. Can I then approach our submissions in this way. Fundamental to the question in this Court, as in the courts in Dayney (No 1) and Dayney (No 2) in the Court of Appeal, was whether the third condition was an independent imperative. It is with that in mind that one needs to consider, we respectfully submit, the pathway of reasoning her Honour Justice Dalton took in circumstances where there was criticism levelled at her Honour’s process.

Her Honour was not asked to consider whether there was an error in the process of reasoning of the majority that the cases were limited to death or grievous bodily harm. Her Honour was, in fact, considering the question of whether the provision – the condition, the retreat condition – was independent of the other two. I accept that those are, to some extent, connected, but one starts from the proposition that her Honour was considering a particular question and not the question of the particular case.

GAGELER CJ: We are concerned with the correct construction.

MR WALLIS: Of course, of course. It was merely to identify, in our respectful submission, that just because there is a diversity of reasoning that emanated from the intermediate appellate court, that does not lead to the unassailable conclusion that there was an error manifest in the original construction. That is probably the nub of the point; I do not need to belabour it other than to say that what I have.

What we do submit, though, is that when one comes to consider the competing contentions, our learned friends purchase upon the observations of his Honour President Sofronoff, and, of course, the consistent observations of the court in Randall v The Queen from Western Australia. All we do is to identify that there are some errors in those processes of reasoning. They both operate – with the greatest respect to both eminent judicial officers – from an assumption as to a conclusion. That can be found most readily in his Honour President Sofronoff’s postulation at paragraph [53], and also the criticisms of the paragraphs that her Honour Justice Dalton criticised, that his Honour started from a proposition as to the conclusion, and then sought to make good that conclusion.

We say that the same process of reasoning permeates our learned friends’ construction – that is, one assumes the correctness of the submission and then tries to find support for the correctness of that submission. We say that that takes it in the wrong direction – or proceeds from the wrong direction.

JAGOT J: Could I ask you just one question Your construction of – it is referring to the case of death, or the case of grievous bodily harm.

MR WALLIS: Yes.

JAGOT J: Is that death of grievous bodily harm as referred to in subsection (1) – namely, the words at the end of (1):

although such force may cause death or grievous bodily harm –

Is that what you are saying it refers to?

MR WALLIS: Yes. It refers to that, but it also refers to the same language in subsection (2), the:

force which causes death or grievous bodily harm –

JAGOT J: Okay. If that is the case, then it is death or grievous bodily harm in the first exclusion, and death or grievous bodily harm in the second exclusion.

MR WALLIS: Yes.

JAGOT J: But why would you go so far as to do – if it is enough to just refer to death or grievous bodily harm in (1), at the end of (1)?

MR WALLIS: It is because of the way in which – we seize upon the observations of the majority in Dayney (No 1) and, of course, there is, perhaps, one might say, some inconsistency between the statement that is made at paragraph [111] of that judgment, but that is clarified, then, at paragraph [114], that the provision, or the limitation provision – if I could put it that way, that is, 272(2) – should be understood to operate only in cases where death is occasioned or cases in which grievous bodily harm is occasioned, in our submission.

JAGOT J: Okay, thank you.

MR WALLIS: That sits comfortably, in our respectful submission, with the policy considerations – which I will come to in a moment – that inform purpose of the provision. I will deal with it a bit later, when I deal with the sequential numbering, but there is a proposition that I have just referred to in his Honour President Sofronoff’s judgment at paragraph [53] – where an example is postulated, and that ‑ ‑ ‑

GORDON J: This is the passage that I took Ms O’Gorman to.

MR WALLIS: It is, yes.

GORDON J: At page 18 of the core appeal book.

MR WALLIS: That is correct, your Honour. All we observe with respect to that example is it perhaps informed as well, to some extent, by paragraph [41] at page 16, where his Honour starts with:

The accused assaulted the deceased using non‑lethal force or has provoked the deceased to assault the accused.

Then there are some further statements that fall within that paragraph. Of course, his Honour is there proceeding from the proposition that the unlawful assault or the provocative act is such that it did not provoke the response that it actually got. That is not how section 272, in our respectful submission, works. If the provocative act or the unlawful assault was not such as to invite the assault that was actually given, then section 271 would apply. And so that is where, when his Honour postulates at paragraph [53]:

There is no reason consistent with the principles of self‑defence –

that needs to be understood by reference to 271 rather than 272, in our submission, because proportionality has to be a consideration.

GORDON J: Can you explain that in the context of – as I understood, that 272(1) extends beyond, as made clear by the last phrase in 272(1)?

MR WALLIS: In terms of, 272(1) extends to cases of death or grievous bodily harm, or where the force is likely to cause ‑ ‑ ‑

GORDON J: Or less than – yes.

MR WALLIS: Yes. Our submission ‑ ‑ ‑

GORDON J: Is that not the proposition that is being addressed by President Sofronoff at the end of [53]?

MR WALLIS: Our submission is it is not necessarily the proposition that his Honour is embracing. His Honour is proceeding from the premise, informed by the paragraph that I took your Honours to at [43], that the aggressor, the accused person, provoked an assault that was disproportionate. That is not necessarily the ambit of 272; that would fall within 271. That is why we submit that the policy consideration that his Honour was reflecting upon is not a policy consideration that is necessarily borne out in the process of reasoning.

The same vice attends, in our respectful submission, the consideration in Randle, that it proceeded from a proposition or an acceptance that the text should be understood to be read in one way, and then there was an attempt to find support for that by reference to the position of the common law as it was enunciated in Howe. The other difficulties that attend Randle, of course, in our submission, are that there was some prominence placed on Muratovic and the decision of Justice Hart.

Of course, there was no countervailing consideration for the observations of his Honour Justice Stanley in Johnson’s Case, and that was a case that was before the court in Randle, because it was picked up later in the judgment. And so, there was no robust consideration of the countervailing propositions. The countervailing propositions, though, were robustly considered by the majority. And that is why we, in essence, hang our hat on what they said.

BEECH-JONES J: So, you read 272(1) as requiring that the assault that is of the ultimate victim, which causes an apprehension of death or grievous bodily harm on the part of the accused, be somehow proportionate to the initial assault or provocation of the accused?

MR WALLIS: Yes.

BEECH-JONES J: And does that chain of reasoning follow by the incorporation of the meaning of “provocation” in both 271 and 272?

MR WALLIS: Yes.

BEECH-JONES J: So that reads – so, it is said in 271:

When a person is unlawfully assaulted, and has not provoked the assault –

MR WALLIS: Yes.

BEECH-JONES J: And that has to be, you say – provocation, I did not know, had a necessarily proportionate element to it. It has an element that an ordinary person might lose their control. It is does not normally require that the particular assault be one that the ordinary person does – just the kind of assault, I thought.

MR WALLIS: Yes, but when one considers the entire construct, in our respectful submission, under 272, it imports that notion of proportionality throughout the provision because – and again, this perhaps comes back to the distinction that we submit is important as between “an assault” and “the assault” – as between section 271(1) and 272(2); “the assault” is always “an assault”, but “an assault” is not always “the assault”. And so, if a person has not provoked the assault, then an accused is untrammelled by the notion of retreat, but also has some limitations with which they can respond, that is, to a degree that provides effectual defence.

Whereas 272 speaks of the notion of force that is “reasonably necessary for such preservation” from death or bodily harm. So, if one has provoked the assault, then one immediately proceeds, in our submission, to 272. But if, on a factual assessment, the accused has not provoked the assault, then 271 will prevail. And that is the point of the successive numbering, in our submission.

Can I deal with some textual matters first. Your Honours have been provided, and, of course, are familiar with the provision of 272. It is across a number of documents that your Honours have. It is at page 185 of the joint appeal book, and the relevant provision, 272(2), falls at page 186. Dealing with the retreat condition itself, we make a few observations. Each are relevant to a consideration of whether that condition operates independently of the preceding two. It is an independent imperative, I should say. First is the semicolon – the use of the punctuation, in our respectful submission, is important. It denotes a link between two independent clauses that are closely related. We say the relationship is the causation of death or grievous bodily harm, rather than the state of mind.

We submit that “nor” has a particular purpose. That was the purpose it was given by the majority. “Nor” must connote, in our submission, a separation of ideas, consistent with the semicolon. To conduct a conjunction between two separate ideas, which is consistent, we submit, ultimately, with the notion that it is independent, as identified in the common law. We accept the statements in this Court and other courts that one starts first with the Code. That does not preclude a consideration of the common law, but only if ambiguity attends. What we submit is that when one comes at it, there is no ambiguity that arises, but it is relevant to note that there is a consistency between our construction and the common law.

GORDON J: I must say, I find both of you saying there is no ambiguity when we are here spending hours to discuss the ambiguity something of an interesting observation.

MR WALLIS: I think we purchased upon that in our outline of oral submissions, that there are a diversity of opinions as to the construction of the provision, and ‑ ‑ ‑

GORDON J: I think even some judges have expressed views on it, for a very long period of time, that there are difficulties with this provision.

GAGELER CJ: Mr Wallis, can I read to you the way I have written out your construction of this provision?

MR WALLIS: Yes.

GAGELER CJ: I am trying to give content to the words “nor, in either case, unless, before such necessity arose”, which I think can only be made sense of if you look to the previous parts of the same sentence. I have written it out as a separate sentence, as follows: this protection does not extend to a case in which the person using force which causes death or grievous bodily harm unless before the necessity of so observing himself or herself arose.

MR WALLIS: Yes.

GAGELER CJ: Is that the construction?

MR WALLIS: Yes. That is how I have written it out. With the greatest respect, it turns upon – and we submit that the focus of the provision is the result rather than the states of mind, and we say that the first condition has a result and a state of mind – that is, commences the assault, or has done the assault with a relevant intent.

The second condition speaks of having a state of mind – I will not use the word “intent”, because the language employed of “endeavour” is important – but it still is annexed to the causation of death or grievous bodily harm, because of the notion of a person using such force “which causes death or grievous bodily harm”, and so, that then imports into the “either case”. So, nor in a case in which the person using force which causes death or grievous bodily harm retreated – I am paraphrasing there, but I think that probably points to where we come to.

GLEESON J: What does the word “endeavour” entail beyond intent?

MR WALLIS: That is a question that I cannot necessarily answer, and I have grappled with myself. It is language that is employed uniquely. In my investigations into this provision, one perhaps can – it may be it is tied with the concept of malice afterthought that his Honour Sir Samuel Griffiths specifically disavowed from the Code itself – and that is within his letter – that one might consider a proposition where someone commences an assault without murderous intent, then is confronted with some force in response, but it is not necessary to defend oneself to the point of lethality, but endeavours to bring about lethal consequences.

One might say, well, that is just the manifestation of an intent, just at a point later than when one starts, but perhaps it captures a lacuna where it could be said that one does not intend to bring about that consequence, what they are intending instead is to preserve themselves. So, it is not an intent specifically connected with murderous intent. Of course, the language deployed throughout the provision, it is, in our submission, also to some extent, we submit, relevant to note that there was cascading levels of intent so far as wilful murder, murder, and grievous bodily harm at the time that the Code was enacted. That has now been dispensed with, of course, in Queensland, and was in 1974.

We also purchase upon the “nor, in either case” as a composite, recognising the comma and the punctuations that are used there. If the provision was not to be understood in the way that we posited, and it is instead to be understood in the way that our learned friends posited, then we submit that there was no reason to speak about “nor, in either case” – “unless” would have been satisfactory. In case (a) or case (b), unless someone retreats, or unless in either case, someone retreats, but “nor, in either case” has to have some purpose, in our respectful submission.

It limits the preclusion, we say, to cases of death or grievous bodily harm, and as his Honour Justice Stanley recognised in Johnson, sometimes the Code will be more merciful than the common law, sometimes it will not. In this case one might think it is, to some extent, more merciful, because if forced used does not arise to the level of death or grievous bodily harm, then there is no necessity for retreat. We also identify that there is some additional work to be done by that phrase:

to a case in which . . . causes death or grievous bodily harm –

If it was on our learned friends’ construction, there was no purpose to that. It could have just read, this protection does not extend to a case in which a person using force first begun the assault with intent to cause death or grievous bodily harm. Then the second provision might then be understood to read, nor to a case in which the person using force endeavoured to kill or do grievous bodily harm to some person. Those words, “which causes death or grievous bodily harm”, are then surplusage. They must be given some meaning. That is why we submit that there is a curtailment of the limitation of the provision – our language.

We submit that all of the conditions within section 272(2) turn upon the result, and it would be obscure, in our submission, to have the third condition turn on a state of mind that is not spoken about.

BEECH‑JONES J: What state of mind is that?

MR WALLIS: The intent to kill. Your Honour, our learned friends’ construction, condition 3 – the retreat condition – must be understood to be coupled with condition 1 or condition 2.

BEECH‑JONES J: Yes.

MR WALLIS: And condition 1 has a result in the state of mind, condition 2 has a result in the state of mind, compared to intent. We submit that if there was a state of mind that was required in condition 3, it would have been made more overtly express, because there are different states of mind. State of mind in condition 1 is the murderous intent, the state of mind in condition number 2 is endeavouring to cause death or grievous bodily harm.

We submit that the consistency or commonality as between condition 1, condition 2, and condition 3 must be read to mean that the limitation of 272(2) attends cases in which death or grievous bodily harm occur, and that supports, we submit, our construction as to the third provision – the retreat condition.

There is a submission made against us about the composite nature of “death or grievous bodily harm”, and there is in aid of that submission some examples that are given in our learned friends’ outline of submission. I will not belabour the point in any great detail, other than to observe that the examples that are given in various provisions throughout the Criminal Code turn on different language. So, that provides no assistance, in our respectful submission, and as between a composite nature between the concept of death and grievous bodily harm carrying with it intent.

That brings me some observations with respect to the context. We submit that there is some overlap between some of the propositions the Bill advanced so far as context is concerned and purpose, but I will move through those in this way. In the context, section 272(2) must be read in combination with 272(1) – we have made this submission, that 272(1) turns upon the force used; not just on the state of mind or the likely consequences, but the force. The nature of the force is used thrice within that provision, and so it stands to reason that consistency through to the next provision the use of force would attend. That is why we submit that when one speaks of “in either case”, it is in either case in which the force used causes death or grievous bodily harm.

We also observe in our outline of written submissions some other features that can aid in the construction. We identify that sections 271 and 272 fall within Part 5 of the Criminal Code, and Chapter 26. Part 5 is “Offences against the person and relating to marriage and parental rights and duties”; Chapter 26 is “Assaults and violence to the person generally – justification and excuse”. Within that construct, it is offences against the person rather than offences that involve a particular state of mind. That is the Part, as it is labelled.

Then when one goes further afield through Chapters 28 – Chapter 27 has no consequence here, it speaks about duties – but 28 through 30 deals with cascading concepts of causation. Those cases in which death results, with or without intention or state of mind, those cases in which legal force is used that does not result in death, with or without a state of mind, and those cases that are non-lethal, involving assaults.

We submit that there is some support to be derived from our proposition that 272(2) – the retreat condition – must be understood by reference to the outcome. We also purchase upon the notion of 272(1) being a justification and 272(2) being an excuse. That distinction derives from the concept of blameworthiness, in our submission, where a justification turns upon a lack of blame, and an excuse turns upon blame itself, then it sits comfortably to require a person to completely extinguish their blame before they might avail themselves a complete defence.

One cannot invite lethal force through a provocative act without a state of mind, and then respond with lethal force and say, I was acting in self‑defence, in our respectful submission. If they did not invite the lethal force through their conduct – that is, whether they did not engage in unlawful assault or a provocative act, or their unlawful assault or provocative assault was not of sufficient magnitude to warrant the response by the decedent of legal force – then section 271 will prevail. That is the distinction I was averting to before of “an” and “the” in the statutory construction as between section 271 and 272.

We submit that, therefore, retreating sits comfortably in cases of death or grievous bodily harm. If I can posit it this way, if one responds to a lethal attack without lethal force and is able to subdue short of grievous bodily harm or death, then there should be no obligation to retreat when one has regard to section 272(1) and (2). That is why, we submit, the construction so far as the provisos in 272(2) are limited and constrained to cases of death or grievous bodily harm, the causation of them, because that invites in the concept that we have made submissions about, about proportionality.

If one responds to a lethal attack without lethal force and is able to make effectual defence, then that would be proportionate, and one might then find that person in a lacuna, perhaps, between a justification and an excuse. So, that is why the requirement to retreat would not attend that circumstance. We also, further afield, draw some support – as tangential as it might be – from section 31 of the Criminal Code.Section 31 is, of course, in different terms. Section 31, which finds its way into the joint appeal book at page 67, speaks of, particularly in 31(1)(c):

when the act is reasonably necessary in order to resist actual and unlawful violence threated to the person –

And so there is an assumption there that the retort is unlawful. That would perhaps find some support with section 271. But 31(1)(d) speaks of:

when—
(i)the person does or omits to do the act in order to save himself or herself –

So, there are some parallels with 272:

from serious harm or detriment –

Not the causation of death or grievous bodily harm, but one can draw an analogue:

(ii)the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape –

As distinct from 272(1), that it:

is reasonably necessary for such preservation –

to use force in self‑defence. And then:

(iii)doing the act or making the ommission is reasonably proportionate to the harm or detriment threatened.

So, there are some parallels one might draw between the excuse available in section 31 and particularly, section 272, and then we identify that there is, under section 31(2), a limitation of that protection. The limitation of that protection attaches to the resultant consequences. That is, where these:

which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element –

And, of course, this Court has recently identified that it does not extend to a case of manslaughter, because grievous bodily harm is not an element in the Code.

GORDON J: Can I ask you a question about the directions which were given in response to the question three at pages 55 to 56 of the core appeal book. Were the directions given by the trial judge consistent with the construction you have just put to us and accepted from the Chief Justice?

MR WALLIS: In my submission, they were. And – appreciating that I have a copy of this presently, and your Honours do not ‑ ‑ ‑

GAGELER CJ: I think you had better hand it up.

MR WALLIS: Yes. I do not want to keep my powder dry. That is five copies.

GORDON J: That may not be the passage you rely upon as giving rise to the appropriate direction, but if it is, I would be grateful if you could just explain how that direction is consistent with the construction.

MR WALLIS: Consistent with the construction of it attending a case of death or grievous bodily harm only?

GORDON J: Yes.

MR WALLIS: In our submission, it is consistent in this way. Her Honour did not need to go into any further elucidation, her Honour does not speak about it being limited to only cases of death or grievous bodily harm, but ultimately, this was a case of murder, and so death was occasioned.

This is the same difficulty, we submit, when one has regard to some of the observations that are made – and we make this point in a footnote of our submissions – that some of the cases, particularly Justice Hart’s decision in Muratovic, was considering it in the context of wilful murder, so there has been no consideration other than the majority’s reasoning in Dayney (No 1) as to the limitation of (2).

It is perhaps not a satisfactory answer, but ultimately we submit that the direction that was given by her Honour in combination with the question trail does accord with the construction that we have given, because of the circumstances of this particular case. The relevant question is at 3.10, page 6. I apologise, we have done it in double‑sided, but ultimately, it is at 3.10:

Are you satisfied, beyond reasonable doubt, that before the necessity to preserve himself from death or grievous bodily harm arose – that is, before Mr Spencer pulled out the gun – the defendant did not decline further conflict, and did not retreat from it as far as was practicable?

Her Honour gave meaning to it – or indicated to the members of the jury that it was a third independent condition, because the way in which her Honour dealt with the consideration of self‑defence was to deal with 271 and then to 272(1) and then to 272(2). That was a situation where her Honour was not obliged to really grapple with, in our submission, what we submit.

The other observations that we wish to make – perhaps we can do it to some extent in short form. The next proposition is the purpose we submit turns upon – as I have just submitted – the extinguishment of blame. That is a consideration that permeates the discussions and the decisions on the common law in Viro v The Queen, in Zecevic, and also the notions that attend to Dayney (No 1) and Dayney (No 2), where one must be taken to clearly break off the assault before they can act in self‑defence.

So, our submission is, the fact that that might attend cases in which death or grievous bodily harm occur is important. It excuses conduct short of that, but where death or grievous bodily harm is occasioned, there is sound policy reasons to expect a person, before they bring about a person’s death or serious injury, must do everything that they can do before they can take a life or threaten a life.

BEECH-JONES J: Sorry, that is not the rule of the common law. That is not the common law of Australia. That is just a factor.

MR WALLIS: No, that is not the common law of Australia, I accept that. R v Howe goes on to identify – but, of course, R v Howe in 1958, it changed. So, the point that we make is that, of course – and I made this at the outset – when one comes to consider Howe and how it attends the decision in Randle is, of course – Howe was framed by section 271, or what would have been 271 in Queensland. So, some of the observations there need to be understood in the context of this particular provision in the Criminal Code. So, it is a factor that may be considered – we accept that – in the common law, but it is an imperative, and it maintains an imperative nature in the case of section 272.

There is, we submit, a redundancy in the appellant’s argument that tells against the construction advanced. That is the redundancy that the majority identified, that is, it would be a very rare case in which a person might embark upon the causation of death or grievous bodily harm with that intent, and then retreat before it is necessary for them to so preserve themselves, and then act in a way to take life or threaten life.

There might be circumstances – we accept that – but they would be very limited. So, that is why we submit the third condition – the retreat condition – having a broader application than just annexing to requalify the proceeding to conditions is the correct construction. And there is also some force by analogy – and perhaps it does not carry a great deal of weight, but we make this observation, that on our construction – or the respondent’s construction – it also gives meaning to the totality of the provision where there is a consideration in section 272(1) of the use of the provocative act – if I can call it generally, “unlawful assault” or “provocation” – to another. Then 272(2) speaks about some person – so contemplating, we submit, someone different to the person who was originally the subject of the unlawful assault – so, an intervener, if we can put it that way – and then speaks of conflict generally. It does not use the word “assault” again; it uses the word “conflict”.

So, if one comes to consider the appellant’s construction in that scenario, if a person commences a murderous assault – if I can put it in those terms – against person A, person B responds, an accused person then declines to engage with person B, but person B presents legal force, on the appellant’s construction, that would allow an accused person to avail themselves, in our submission, of the defence of the protection in 272(1) – because, whilst they started the assault against one person, they disengaged from the person ultimately killed, or to whom grievous bodily harm was occasioned.

Whereas on the respondent’s construction, that retreat is an imperative before death or grievous bodily harm can be occasioned generally to anyone where one has invited the assault. It requires a complete withdrawal; not just a withdrawal from the state of mind, but a withdrawal from the conduct absolute, so that they are no longer blameworthy, and they can respond to the lethal force that is presented.

GORDON J: So far as practicable.

MR WALLIS: So far as practicable, yes, of course – I should say it depends on the circumstance, of course, and it has to be as far as practicable in the circumstances. That was, of course, one of the considerations that is not a ground in this Court but a consideration in Dayney (No 2) – what turns upon when a necessity arose, and when it was practicable. That was the point at the trial that was advanced. If the appellant’s evidence could not be excluded beyond a reasonable doubt, then to what extent was he able to retreat. That is where the line was drawn between the Crown and the defence.

GLEESON J: Mr Wallis, I may not have heard you address this, but you say that the relevant provocation has to be an unlawful act because of section 268(3)?

MR WALLIS: Yes. I have dealt the with considerations of Randle, and I will not belabour them, but, in our submission, the proper construction is that which was arrived at by the two courts below, accepting that they, of course, do not bind this Court. Ultimately, the relevant conclusion is that it was a third independent provision. I accept that our submissions have been predicated on the basis of what the case was, to reference must be had. Whichever way one comes at it, though, our submission is, whether

your Honours agree with us, or it has been left in the ether, to some extent, whether the cases are a case of unlawful assault or a case of provocation.

That was something that her Honour Justice Dalton considered, but if this Court does not agree with our construction – considers it, attends the alternate construction that we have spoken about in our written submissions – then, ultimately, there would still be no misdirection because the conclusion is – and it prevails – that it is a third, independent, imperative condition untrammelled by the (2) in 272(2), and there was then no misdirection in this particular case.

If the Court does not accept the respondent’s submission, but accepts the appellant’s construction, then we accept that this is not a case in which the proviso could have any work to do. We do not embrace the concept that the failure to leave a defence as a right leads to a substantial miscarriage of justice, but this is not the point to argue that. In this particular case, we submit that the proviso has no work to do. There would be a miscarriage and it is a substantial one.

Unless we can take matters any further – I do not think I can, but if there are any questions your Honours have of me, I can answer them or try to. Other than that, those are our submissions.

GAGELER CJ: Thank you, Mr Wallis.

MR WALLIS: Thank you, your Honours.

GAGELER CJ: Ms O’Gorman.

MS O’GORMAN: There were two questions that I was going to come back and answer. Firstly, dealing with the question posed by your Honour Justice Beech‑Jones with respect to the potential application of section 31(1)(c). My learned friend has already addressed that to an extent, and our submission is simply that there would be cases in which there will be an overlap between section 31, section 271, and section 272, but nothing in 31 assists with an understanding of either 271 or 272.

Secondly, to answer your Honour Chief Justice Gageler’s question, does the letter written by Sir Samuel Griffith address a moving away from the language of the proviso – I have been back through the letter, I cannot find that it does.

Lastly, just by way of a general observation, if I may, your Honour posed a question which would be a rewriting of 272(2) to incorporate the meaning that my learned friend would propose be given to the words “nor,

in either case, unless”. Might I simply remind the Court that our proposal as to how that sentence would read if our meaning were adopted is contained in paragraph 2 of our reply, just for ease of reference. Thank you.

GAGELER CJ: Thank you, that is very helpful.

MS O’GORMAN: There was nothing further I wished to raise.

GAGELER CJ: Thank you. The Court will consider its decision in this matter and will adjourn to 9.30 am on Tuesday 23 April.

AT 12.14 PM THE MATTER WAS ADJOURNED

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