Di Lena and Washer v State of Western Australia

[2007] HCATrans 56

[2007] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P25 of 2006

B e t w e e n -

JOHN DI LENA

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Office of the Registry
  Perth  No P26 of 2006

B e t w e e n -

RAYMOND JOHN WASHER

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Applications for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 FEBRUARY 2007, AT 12.24 PM

Copyright in the High Court of Australia

__________________

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant in both matters together with MR C.B. BOYCE.  (instructed by Office of David Grace QC)

MR D. DEMPSTER:   If the Court pleases, I appear on behalf of the respondent in both matters.  (instructed by Director of Public Prosecutions (Western Australia))

KIRBY J:   Yes, thank you.  Mr Dempster might have had the privilege of being the last counsel to appear for the Queen in the previous matter.

MR GRACE:   Yes.

KIRBY J:   We had a case in Western Australia where counsel claimed that privilege, but I think that it may well be today in the last case.  However, there we are.  It is convenient to take these two applications together, is it not?

MR GRACE:   Yes.

KIRBY J:   There is a common point between the two, but there is a separate point in Mr Washer’s application.

MR GRACE:   Yes.  What is proposed is that I address argument in relation to Mr Washer’s discrete issues and that Mr Boyce will address the Court, with your Honour’s leave.

KIRBY J:   You are giving Mr Boyce the hard part, yes, very well.  You will deal with Mr Washer first, will you?

MR GRACE:   Yes, I will.  The application of Washer raises a number of important issues concerning the admissibility of propensity evidence and the inability of the applicant to place before the jury evidence of his acquittal at a trial concerning allegations of drug dealing that formed the basis of that propensity evidence.  The learned trial judge allowed the drug dealing evidence, so‑called, to be led in proof of the element of intent to sell or supply the drugs in question and to rebut innocent association.

KIRBY J:   Was that by a ruling made in the course of the trial or by a preliminary ruling before the trial?

MR GRACE:   Preliminary ruling.

KIRBY J:   But it was the same judge, was it?

MR GRACE:   Yes.  In other words, it was propensity evidence that sought to lead to the conclusion that the applicant was in the business of drug dealing.  In his ruling as to admissibility the learned trial judge did not advert to section 31A of the Evidence Act (WA) nor did any counsel before him advert to that section.  We do not focus on that failure and we are content to deal with the application on the basis on which the Court of Appeal dealt with it.  It is submitted that the drug dealing evidence did not satisfy the conditions for admissibility described in the section for the following reasons.  Perhaps if I could take your Honours to the section initially.  It is set out in the judgment but it should be on a separate page in the bundle of authorities.

KIRBY J:   Let me just get it straight.  Are you dealing with Mr Washer’s point about the fact that he was not allowed to get before the jury his acquittal in the earlier trial?

MR GRACE:   Yes.

KIRBY J:   Why are you dealing with section 31A?

MR GRACE:   Because one of the reasons why we submit section 31A was inapplicable to allow the admission of this evidence was because of that earlier acquittal.

KIRBY J:   Is that not the matter Mr Boyce is going to be arguing, the inadmissibility of the evidence?  As I understood it, you have a discrete and rather unusual point that, having been acquitted earlier and having asked to do so with the perils that that involved, on the authorities Mr Washer should have been allowed to have the jury told of the earlier acquittal and to have an instruction from the trial judge that nothing that they did should cast doubt on the earlier jury acquittal?

MR GRACE:   Yes, but it is also put on behalf of Mr Washer that the earlier acquittal in the terms of the section meant that that section could not be called in aid by the prosecution to allow this evidence.  That is why I wanted to take your Honours to the section.  Subsection (2) provides:

Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers –

(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt –

and I want to focus on that phrase “all relevant evidence of guilt” –

must have priority over the risk of an unfair trial.

Now, where the State relies upon the earlier propensity evidence, the drug dealing evidence, as relevant evidence of guilt, then that is undermining the effect of the acquittal and that provides a basis upon which that evidence should be excluded at law.

HEYDON J:   The problem is, though, the acquittal related to a conspiracy between three people, the accused and two others.

MR GRACE:   Yes

HEYDON J:   The charge of the second trial related to a conspiracy between the accused and two other people.

MR GRACE:   Yes.

HEYDON J:   How does an investigation of the second allegation undercut the acquittal for the first because it is quite different?  It is a different crime, different participants.

MR GRACE:   It is different participants but the evidence is common, in large part in the case against Washer and that is the point.  The prosecution relied upon telephone intercept material and searches of Washer’s home on two occasions in the first trial.

HEYDON J:   An acquittal of X, Y and Z of the crime tells you nothing about whether X, A and B are guilty of another crime, even though it might emerge from the same evidentiary matrix.

MR GRACE:   But the route to the finding of guilt in the second trial was the route that was unsuccessful in the first trial on behalf of the State using exactly the same evidence.

HEYDON J:   But surely, to some extent, it must be different parts – I know we say the same evidence, it is telephone conversations.

MR GRACE:   Yes.

HEYDON J:   It must be different parts because the parts that relate specifically in my example to Y and Z cannot relate to A and B.

MR GRACE:   No, there were additional parts that related to the participants in the second conspiracy but they were not divorced.

KIRBY J:   Were there common points that were put before the second jury, common points of evidence?

MR GRACE:   Yes, and the Crown conceded that and that is actually set out in the judgment of the Court of Appeal.  The point is that the evidence tended to undermine – the allowing of the evidence, pursuant to the route of section 31A tended to undermine the acquittal.  All we need to establish is that it tended to undermine.

KIRBY J:   You applied at the trial to prove the acquittal.

MR GRACE:   Yes, we did.

KIRBY J:   And you applied for the direction which the trial judge refused to give.

MR GRACE:   Yes.

KIRBY J:   So it is all neatly tendered, in that sense.

MR GRACE:   Yes, it is.

KIRBY J:   What is the principle that this Court has laid down?  I think you have quoted something Justice Gibbs said that – or I think perhaps the State has quoted it and say that there is not an absolute rule on this matter.

MR GRACE:   Yes, and I wanted to take your Honours to those passages, if I may.

KIRBY J:   What is the case?

MR GRACE:   There are two cases, Garrett and Storey and, actually, a third, Carroll.  Can I take you first to Garrett?

KIRBY J:   If one looks at it just as a matter of principle one would think that where there has been an earlier trial then if there is any overlap at all, if the accused wants it, with all the dangers that involves, one would think that the trial judge should tell the second jury that they should not cast doubt on the verdict of the first.

MR GRACE:   Yes.

KIRBY J:   Is that the principle that this Court has laid down?

MR GRACE:   Yes.  This Court has said that if such evidence is admissible, and this is presupposing that was validly admitted under section 31A of the Evidence Act, evidence of the acquittal is admissible and the jury should be directed in terms that ensure the accused receives the full benefit of the acquittal.  That is found in the judgment of Chief Justice Barwick in Garrett and in Storey.  Commenting on the decision in Storey Justices Gaudron and Gummow in Carroll at paragraph [92] endorsed that approach.

KIRBY J:   They were merely using it in that case as a step in their reasoning in a case which concerned double jeopardy.

MR GRACE:   Yes.

KIRBY J:   That is not this case, is it?

MR GRACE:   No, that is not this case.

KIRBY J:   But you say it is enough that their Honours, as it were – as a step in their reasoning endorsed the principle.

MR GRACE:   Yes, it is.  Could I take you to Garrett 129 CLR 437 and Chief Justice Barwick’s judgment. At page 445 at point 4 on the page his Honour said:

As to the first of the above submissions, in my opinion the former acquittal could not be called in question by evidence led by the Crown in the subsequent trial. This conclusion does not depend on the purpose which the Crown sought to achieve by the admission of the evidence.  It depends entirely on the tendency of the evidence itself.

I want to focus on that word “tendency”:

The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict.  That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment:  it is res judicata.  It is upon that principle and not upon any issue estoppel that the applicant succeeds.

KIRBY J:   Is that strictly so?  I suppose the verdict of the jury founds the order of the judge of acquittal and in that way passes into res judicata.  I mean, the jury is not a judicial officer making the determination.

MR GRACE:   Yes, that is correct.  Could I take you to Chief Justice Barwick’s judgment in Storey 140 CLR 364. At page 372, about eight lines down from the top of the page:

The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this:  that a verdict of acquittal shall not be challenged in a subsequent trial:  the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion.  Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings -

That touches upon the point your Honour made earlier -

but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal.  Such evidence will be admissible, provided it is relevant to the subsequent charge or to a defence to it but must only be allowed to be used to support the charge or negative a defence.  Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal.

KIRBY J:   The State here says that did not arise because different parties to a conspiracy, different time, different circumstances.  So how do you make it relevant to the Storey principle?

MR GRACE:   Because the State – could I take you – perhaps the best way to answer is in the State’s own words and could I take your Honours to page131 of the application book.  This is in the State’s submissions.  You will see at paragraph 3.3 the respondent says:

The “drug dealing” evidence fell within the definition of “propensity evidence” -

Over the page at 3.6:

The “drug dealing” evidence here had substantial probative value because it had the ability to:

(1)negate a proposition that the association between the Applicant and his co-offenders and others concerned was an innocent association but rather an aspect of the Applicant’s drug dealing business -

Now, just stopping there.  The “others concerned” were those involved in the first conspiracy which the jury found the applicant not guilty. 

KIRBY J:   In the so‑called “drug dealing?”

MR GRACE:   Yes.

KIRBY J:   That is the drug dealing which was the subject of the first trial?

MR GRACE:   Correct, your Honour:

(2)negate a proposition that the Applicant and others were talking about things other than methylamphetamine.  It was part of the Applicant’s case that he was discussing innocent activities during the recorded conversations whereas the content and the context of the conversations negated such a defence -

Now, his defence in the first trial and in the second trial was the same.  He was discussing innocent activities.  The juries were not satisfied beyond reasonable doubt that they were not innocent activities in the first trial but they were in the second.

KIRBY J:   And the jury in the second was not told about the earlier trial or of his acquittal in the earlier trial?

MR GRACE:   No, it was not.

KIRBY J:   Nothing was said?

MR GRACE:   No.  Third, and most tellingly:

prove that the Applicant was engaged in a business of dealing drugs proximate to the time of the indicted offence ‑ ‑ ‑

KIRBY J:   Was the time interval between the conspiracy in the first trial and the charges in this trial?

MR GRACE:   The conspiracy in the second trial was from 18 May to 2 June 2000.  The conspiracy in the first trial was, I think, March 2000 to July 2000.

KIRBY J:   So it overlapped?

MR GRACE:   Yes, the periods overlapped.  I may not be precise on those dates, your Honours.  It does appear in the judgment.  I will just ask Mr Boyce if he could pick that up.  But there was a clear overlap in time.

KIRBY J:   Yes.

MR GRACE:  

(5)prove the existence of the conspiracy and the role of the Applicant in it.  The Applicant made statements that went to the existence of the agreement and his role as financier in it –

That was true.   The relevant dates are set out at page 121 at paragraph 3.8.  The first conspiracy was between 13 April 2000 and 21 March 2001.  I was wrong earlier when I indicated July.  The second conspiracy, the subject of the second trial, was 18 May to 2 June 2000.  Those dates of the second conspiracy were encapsulated into the first.  Now, could I take your Honours to paragraph 148 ‑ ‑ ‑

KIRBY J:   If the Court were not minded to think that there was a special leave point in the common issue between the cases, is there still point in granting special leave to Mr Washer to ventilate this matter in this case?

MR GRACE:   Absolutely, your Honour.  It is a discrete issue that only pertains to Mr Washer.

KIRBY J:   But there is a link between the two cases by section 31A, though.

MR GRACE:   Yes, but there is a different factual substratum in the Di Lena Case on the 31A argument.

KIRBY J:   Yes.

MR GRACE:   Could I take your Honours to paragraph 148.

KIRBY J:   This is listed as one application.  Are you going to leave enough time for Mr Boyce to say what little can be said on the second point?

MR GRACE:   Yes, I was proposing only to go 20 minutes and I assumed the light would come on, your Honour, but obviously it has not, or it may be about to.

HEYDON J:   If you go 20 minutes there will be zero minutes for Mr Boyce.

MR GRACE:   I see.

KIRBY J:   You have landed a few blows so far.

MR GRACE:   I was merely going to highlight one further fact and then I will sit down.  At line 10 on page 104 of the application book his Honour Justice Roberts‑Smith who effectively wrote the principal judgment of the court said this, third line in that paragraph on page 104, top of the page:

Furthermore, the jury was neither invited nor required to make any finding of fact that any element of the conspiracy of which Washer had been acquitted existed.

Well, that is just erroneous.  The jury was invited.  I have read to you what the respondent has put by way of its submissions as to how it puts its case and it is clearly the way in which his Honour came to the wrong conclusion.  Those are the matters. 

KIRBY J:   We will give you a little more time, but not too much.

MR BOYCE:   No, your Honour, I am grateful.  Your Honour, the jury were told, really, in this case, in Di Lena’s case, which does not share the point that Mr Washer has ‑ ‑ ‑

KIRBY J:   Yes, we realise that.

MR BOYCE:   The only relevance of the impugned evidence was intent to sell or supply.

HEYDON J:   Would you speak up, Mr Boyce, I am having trouble hearing you, sorry?

MR BOYCE:   I am sorry.  The only relevance of the drug dealing evidence was intent.  In the end that is all that was left.  Now, it is submitted that the use to which the evidence is put, or is made relevant, in a criminal trial sets the parameters of its admissibility.  Here the test is set out in section 31A and my learned friend has read it to the Court.  The simple submission on behalf of the applicant is that once the issue – the question is whether the drug dealing evidence was probative of the issue of intent. 

Counsel for Di Lena prior to the hearing said to the court, in effect, “Look, our defence is we are not party to the conspiracy but if we are party to it, given the volume of narcotic, there will be no issue but that there was an intent to sell or supply, so you do not really need this extra evidence burdening proceedings”.  That is, in effect, what he said.

The submission in this Court is that once, in real terms, the issue dissolved, as it were, the evidence lost its probative value.  But, of course, it kept its prejudicial effect and that fair‑minded people, in the words of the section, would not, to put it colloquially, come at the admissibility of the evidence.  Now, that really in a nutshell is the submission.  The evidence gains its probative value by virtue of any issue that is in dispute that needs to be proved.  I think your Honours understand that point.

KIRBY J:   Yes, well, we have the written submissions and we have read them.  Thank you very much.

MR BOYCE:   Yes, thank you, your Honours.

KIRBY J:   Mr Dempster, we do not need your assistance in respect of the application by Mr Di Lena or that aspect of Mr Washer’s application which is what I will call the section 31A point, but we do need your assistance in respect of the requested jury direction on the effect of the acquittal in Mr Washer’s case.

MR DEMPSTER:   Thank you, your Honours.  My friend for Washer took your Honours to page 136 and the respondent’s submissions there set out the questions for decision and that suggested that the evidence, in fact, in the way it was left at the second trial was far broader.  As has been said, the evidence, the drug dealing evidence if I can still call it, was left at the second trial to go exclusively and only and limited to the issue of intent to sell or supply.

KIRBY J:   Yes, but there was an overlap in time and there was an overlap in evidence and the danger is that the accused does not get the benefit of the first acquittal because the second jury is kept in the dark about it.  With all the dangers that were presented to him by asking for it, he asked for the direction.  Chief Justice Barwick’s statements in Storey and the earlier case are pretty strong and they are defensive of the dignity and role of the jury.

MR DEMPSTER:   That is true, your Honour.  We do not avoid the principle.  We say though that the principle does not apply because there is insufficient proximity here to impugn the earlier acquittal.  The earlier acquittal related to an allegation involving this applicant and two others who do not figure at all otherwise in the second trial.

KIRBY J:   But it was all drug dealing.  It was not, as it were, the first one was some sexual assault and the second trial was for drugs.  It is all part of the one course of dealing and the question is:  did the jury in the second trial get the assistance that counsel asked for on behalf of Mr Washer?

MR DEMPSTER:   For example, if one goes to the facts of Storey where we are dealing with the same…..integral part of the facts and the allegations on the same night, it is a very different story here, if I can use the word ambiguously in that way, but it is completely different.  There is a closeness there ‑ ‑ ‑

KIRBY J:   Completely different because there is an overlap and it has this similarity, that it is conspiracy relating to drugs.

MR DEMPSTER:   That is true, your Honour, but it does not bear resemblance with the closeness and the connection which applied, for example, in Storey or in ‑ ‑ ‑

KIRBY J:   But was there not evidence?  There was common evidence in the first and second trials.

MR DEMPSTER:   Yes, there was evidence of telephone conversations and something from ‑ ‑ ‑

KIRBY J:   Is it not consistent with what Chief Justice Barwick said, that where there is such common evidence, the second jury must be told that they must not impugn the verdict of the earlier jury.  It does look as though this is a decision of the Court of Appeal that is not faithfully carrying out the principle that this Court has laid down in Storey and other cases.

MR DEMPSTER:   The second jury were not asked to determine anything approaching the issue at the first trial, anything at all.  They were given a piece of evidence which they could make a limited use of and they were expressly directed that the use could not go beyond that limited use, although the prosecution had in fact been allowed at the earlier hearing to make greater use and that was agitated.  At the end of the summing‑up the prosecutor sought a redirection on that basis, on the basis that the evidence had been allowed on two bases but, more favourably for this applicant, it was left on the single limited basis.

KIRBY J:   But it was before the jury.

MR DEMPSTER:   It was before the jury but in that way.  They could use evidence primarily of conversations between this applicant and others unrelated as suggestive of the matter for the jury but as suggestive that he had some involvement in drug dealing and that was relevant to intent.  It was left on that very limited basis.  With respect, and we do not challenge the principle of Storey at all, but it is worlds apart from the sort of scenario which arose in Storey or, for example, in Garrett where the evidence of the second trial suggested that the man had in fact killed the deceased when he had been acquitted of that.  It is simply not ‑ ‑ ‑

KIRBY J:   That is a double jeopardy point.  There are separate and in a sense even stronger principles because you can stop the whole process.  That is not what this applicant is saying.  This applicant is saying that the process has to go along, “I’m charged with an overlapping offence.  There is common evidence.  It has this similarity that it relates to the conspiracy in respect of drugs but I do ask that the jury be told that I’ve earlier been acquitted and they mustn’t impugn the earlier verdict but must give me the full force and effect of the earlier verdict and the acquittal that followed it”.

MR DEMPSTER:   The jury would not even have speculated about any other previous matter because it is simply a matter unrelated.  It is simply ‑ ‑ ‑

KIRBY J:   It is not a question of speculating about being guilty of the earlier one.  It is a matter of being told of the acquittal by the earlier jury and given the effect that that information would bear on the jury’s deliberation.

MR DEMPSTER:   I understand the approach and we do not attack the principle in any way but I am pointing to the lack of closeness.  This was the first trial, admittedly a drugs conspiracy but related to a specific agreement involving this applicant and two other men.  Part of the evidence from that trial was allowed on the most limited basis favourable to the applicant in the second trial.  Your Honour, I do not think I can enlarge on those submissions.

KIRBY J:   Anything in reply to that, Mr Grace?

MR GRACE:   No, your Honour.

KIRBY J:   The comparatively rare instance that an admission or rejection of particular evidence in a trial will attract the grant of special leave to appeal to this Court derives from the fact that cases involving evidentiary questions tend to be too particular to their individual facts.  The issues raised do not tend to present questions of general importance, questions of law or issues going to arguable miscarriage of justice, such as would attract a grant of special leave.

So it is in these applications in the common point raised by Mr John Di Lena and Mr Raymond Washer.  There is one common ground to those two applications.  Each of the applicants, in that regard, submits that the judge deciding issues of admissibility erred in admitting evidence of drug dealings on their respective parts that arose after the conspiracy with which they were charged had come to an end.

They argue that this ruling, and the course that followed, involved a miscarriage of justice.  We do not consider that, in this respect, the applicants have shown reasonable prospects of disturbing the conclusions of the Court of Appeal of Western Australia explained in the reasons of Justice Roberts‑Smith.  Subject to what I will later say in the application of Mr Washer, the approach of the trial judge conforms substantially, although not in terms, with that required by section 31A of the Evidence Act for the admission of propensity evidence.

The impugned evidence had a significant probative value and otherwise complied with the section.  Special leave is refused on this common ground.  In consequence the application by Mr Di Lena is dismissed.  However, in the separate application by Mr Washer, a point is raised concerning the suggested error of the trial judge to direct the jury of the obligation to give full force and effect to an earlier jury verdict of acquittal of an earlier conspiracy, albeit with different persons at a different though overlapping time.  In that respect, the Court will grant special leave to appeal to Mr Washer; but the ground of appeal will be limited to that point.

Now, where do we find your grounds of appeal, Mr Grace?

MR GRACE:   Pages 116, 117 of the application book.

KIRBY J:   So what is the consequence of what I have just said for the grounds that you can argue in this Court?

MR GRACE:   Grounds 2.2 and 2.3 would remain, in my submission.

KIRBY J:   Yes, I think that is correct.  Do you agree, Mr Dempster, that if the Court is granting special leave on the separate point that Mr Washer argued, that grounds 2.2 and 2.3 of Mr Washer’s application are ‑ ‑ ‑

MR DEMPSTER:   Yes, may it please, your Honour.

HEYDON J:   There is just one problem.  That is not actually the draft notice of appeal.  That is the amended application for special ‑ ‑ ‑

MR GRACE:   Sorry, page 118 and 119.

HEYDON J:   So is it 2.2 and 2.3?

MR GRACE:   Yes, exactly the same, your Honour.

KIRBY J:   Yes.  The point is quite a short point. 

MR GRACE:   Yes, half a day I would estimate, your Honour.

KIRBY J:   All right.  We will note that it is a half‑day case and it will be heard by the Court in due course in Mr Washer’s case but limited to the grounds of appeal, paragraphs 2.2 and 2.3 on page 118 of the application book and you will file an amended notice of appeal which conforms to that conclusion of the Court.

MR GRACE:   Yes.  In relation to listing, your Honour, could I just mention one matter.  Mr Boyce is involved in a matter which was the subject of a grant of special leave by your Honour and Justice Callinan just prior to Christmas which has some overlapping issues to this case.

KIRBY J:   Yes, I remember that, but that raised issues of double jeopardy, did it not?  However, what are you saying, that it would be convenient if it were heard by the same constituted bench and although different issues are raised it may be of use to the Court to have those matters heard consecutively?

MR GRACE:   Yes.

KIRBY J:   Could they both be determined in the space of a day?  I would be doubtful if the matter from the Court of Appeal of Victoria would be heard in the space of a day because one of the reasons for granting special leave was that there were a number of points in that case.

MR GRACE:   Yes.  Well, I cannot comment on that. 

KIRBY J:   Mr Boyce was nodding.  He thought it would only take a day to hear the two cases.  What is the name of that case, Mr Boyce?

MR BOYCE:   AJS v The Queen, your Honour.

KIRBY J:   Yes.

MR BOYCE:   Your Honour may recall that the concern of the respondent in that matter was how ‑ ‑ ‑

KIRBY J:   We had better not say too much about it because Mr McArdle is not here now.  We have lost him.

MR BOYCE:   Of course.  No, I accept that.

KIRBY J:   But you just say there are some overlapping issues and it might be appropriate to list them consecutively?

MR BOYCE:   That is all I say.

KIRBY J:   Yes, very well.  I will make a note to that effect.

MR BOYCE:   Thank you, your Honour.

KIRBY J:   The Court will now adjourn to be reconstituted for the three remaining applications.

AT 12.58 PM THE MATTERS WERE CONCLUDED