Dickson v The Queen

[2010] HCATrans 181

[2010] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M11 of 2009

B e t w e e n -

KEVIN JOHN DICKSON

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 27 JULY 2010, AT 10.19 AM

Copyright in the High Court of Australia

MR T.F. DANOS:   If the Court pleases, I appear with MR J.E. McLOUGHLIN on behalf of the applicant.  (instructed by Tony Danos Solicitor)

MR G.J.C. SILBERT, SC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, on behalf of the respondent.  (instructed by Solicitor for Public Prosecutions)

FRENCH CJ:   Yes, Mr Danos.

MR DANOS:   If the Court pleases.

FRENCH CJ:   Mr Danos, I note that we do not have any written response from you to the questions that the Court sent.

MR DANOS:   No.  That is largely because most of the matters that were raised – and I spoke with my learned friend, Mr Silbert, last Friday in relation to the matter and we discussed that matter and they indicated that they would be putting in a response that would deal with the matter.  I understood the nature of the response that was being put in and we did not have any issue with those matters, your Honour.

HEYDON J:   So you accept paragraph 6.18 of that document, do you?

MR DANOS:   We do not take any issue with it, your Honour.

HEYDON J:   What, in your understanding, are the provisions of the Criminal Code Act which provide that it is only:

property belonging “exclusively” to the Commonwealth

that is referred to?

MR DANOS:   Unfortunately, your Honour, I do not have the Criminal Code Act here with me.  I would need to look.

HAYNE J:   It would be an unusual position for an applicant to adopt, Mr Danos.  To say that a question raised by the Court which, if answered in favour of the applicant, would lead to the conclusion that the applicant was charged with an offence not known to the law was unarguable – that seems to be the position you are adopting – is at least unusual that an applicant would take that position.  Let there be no doubt about it, the consequence of the issue that is raised, if it were resolved in the sense opposite to that for which the respondent contended, would be section 109 would be engaged, the offence charged against your client would be an offence, I would have thought, not available to be charged because there would be no offence against a law of Victoria.

MR DANOS:   Your Honour, at the time of the trial this issue was looked into.  Unfortunately, it is not part of the appeal book, part of the transcript that was discussion that had left out of the appeal book, your Honours, and I went back and looked at that particular aspect and what had occurred, your Honour, was that there was a discussion between counsel and the trial judge.  The effect of it was that it had never been part of the defence of this applicant that there had not been a theft. 

FRENCH CJ:   That is not the question, is it?

MR DANOS:   I understand that, your Honour.  It was also clear that there could be a theft of property that related to persons unknown. 

FRENCH CJ:   But was there any consideration given to the question?  There was no debate on the question whether this presentment disclosed an offence, having regard to the coverage of the Criminal Code (Cth).

MR DANOS:   That is correct, there was no discussion.  There was no discussion about that. 

CRENNAN J:   Are you suggesting that the mention of Dominion on the indictment was not a material aspect of the charge?

MR DANOS:   No, in the context in which the case was framed it was clearly an aspect that was a part of the evidentiary material that needed to be demonstrated by the evidence.  By that I mean, your Honour, that the property was not simply shown to be at the side of the road.  The property was in the control of Dominion in that the premises themselves were Dominion’s premises.  They had leased the premises to Customs.

CRENNAN J:   Customs, as I thought I understood the facts, correct me if I am wrong, had the key to the premises and possession as the entity leasing the premises.

MR DANOS:   There was an alarm system that was capable of being controlled by Dominion, as I understand it.  Their keys were controlled by Customs and, in fact, on the day in question the entry was, in fact, effected by the lock, I think, being broken.  It was not effected by key.  

FRENCH CJ:   I suppose the question, Mr Danos, is whether it is appropriate for this Court to proceed to deal with the application for special leave on the grounds set out in your draft notice of appeal and application when it is conscious of the possibility that it may be dealing with the whole

thing on a false premise, namely, that there was an offence known to the law in the terms in which your client was charged.

MR DANOS:   It would seem, your Honour, that if that were the case then these - it would seem to me at this stage the only possibility would be for these proceedings to be adjourned to explore that particular aspect.

FRENCH CJ:   What it would probably require is for you to expand the grounds upon which you seek special leave to cover this possibility.

MR DANOS:   Yes.

FRENCH CJ:   Really, the possibility being that the theft of the cigarettes on the case presented by the prosecution was not an offence known to the law of Victoria. 

MR DANOS:   Well, of course, part of the problem I would have faced if I had taken this point at the trial is that that may have dealt with that presentment but I would have then faced a presentment relating to a Commonwealth offence and simply adjourned the matter.  As I say, it was never an issue from the defence of the applicant that there had been a theft of the cigarettes so that whether from a practical point of view as far as this applicant was concerned anything was achieved at that point in time, whereas obviously at this stage it would be a totally different position but, at that point, whether anything practical would be achieved other than to find the applicant facing a Commonwealth presentment as distinct from a State presentment.

FRENCH CJ:   It might be useful just to hear from Mr Silbert on this point at the moment.

MR SILBERT:   If the Court pleases.  As set out in the supplementary submission filed the other day in response to the Court’s request, there appears little doubt that the goods were forfeited to the Commonwealth so that ‑ ‑ ‑

FRENCH CJ:   They were either forfeited or controlled by Customs, I suppose.

MR SILBERT:   Yes, your Honour. The respondent’s position in relation to this is that possession, in a limited form, rested with Dominion so that within the terms of section 71(2) of the Crimes Act (Vic), that Act adopted the English Theft Act and premised theft on the basis of possession rather than title or control ‑ ‑ ‑

FRENCH CJ:   Possession or control, I think, is the term, is it not?

MR SILBERT:   Yes, possession or control.  The Crown’s position would be that there was possession sufficient in Dominion to validate the property being regarded as property of another.

HAYNE J:   As to that point, are the relevant facts to be identified from application book page 18 in the summary of prosecution opening?  The first two paragraphs on that coupled with application book pages 37 and following about control of the keys to the cage and the four digit access code.

MR SILBERT:   Yes, your Honour.

HAYNE J:   Does it lead to this set of conclusions:  (a) the goods had been seized by an officer of the Commonwealth; (b) they had been taken to and were secured in premises leased to the Customs and that the relevant part of the premises in which they were secured, namely the cage, was under the exclusive control of Customs, it having the keys and the four digit access code that was necessary to gain access to the cage.

MR SILBERT:   The answer is yes, with a proviso in relation to number (C) and that is that Customs were dependent, in my submission, on Dominion in order to gain access to this ‑ ‑ ‑

HAYNE J:   They could not get at the cage without permission of Dominion?

MR SILBERT:   No.

HAYNE J:   But what was within the cage was under the sole and exclusive control, was it, of the Commonwealth?

MR SILBERT:   Yes, it was, your Honour, but as your Honour has just said, they could not get at the cage without permission of Dominion.

FRENCH CJ:   The cage was in a warehouse.  I think there was evidence from Mr Walsh and Mr Hanna, was there not, and there was a separate cage for the ATO?

MR SILBERT:   Yes.  It was segregated within the warehouse.

FRENCH CJ:   There were other things happening in the warehouse as well, auction activities conducted by Dominion.

MR SILBERT:   Yes, there were.

FRENCH CJ:   So they had to get through the front door of the warehouse?

MR SILBERT:   Yes, your Honour.

BELL J:   I think the evidence may have been that it was after hours that it was necessary for Dominion to give access to the premises in order for Customs to enter the cage which they leased and in respect of which they had the keys?

MR SILBERT:   Whether it was only after hours or whether Customs were dependent on a licence from Dominion even during hours, I suppose – I do not concede that necessarily during hours.  My submission is that Customs were dependent on Dominion for access to the cage.

KIEFEL J:   But could Dominion deny Customs entry?

MR SILBERT:   I suppose, technically they were a bailee for reward.  Technically, in my submission, they could.

GUMMOW J:   A bailee?  A bailee of what?

MR SILBERT:   Dominion were a lessor of the segregated area in which the goods were stored.

FRENCH CJ:   The detail of the relationship really never emerged in the evidence.  There were things called storage receipts which were issued and with separate charges.

MR SILBERT:   Yes, there were, your Honour.  Exhibit A, which is not reproduced in the appeal book – exhibit A that was tendered on the trial is headed “Goods Inward Receipt”.  It is a Dominion receipt addressed to Australian Customs and it purports to acknowledge receipt of the various pallets of cigarettes that were delivered by Customs and warehoused within the secure area.  That, as I say, is exhibit A on the trial.

FRENCH CJ:   Your response to any 109 problem is really critically dependent on the correctness of 6.18 in your submissions, is it not?

MR SILBERT:   Yes, it is, your Honour.

CRENNAN J:   May I ask you, Mr Danos suggested that at some point early in the trial you had discussions about the presentment and he seemed to suggest even the possibilities which we are now discussing, would the presentment have been able to have been amended to ‑ ‑ ‑

MR SILBERT:   To avoid section 109 inconsistency?

CRENNAN J:   Or even to have taken into account the Commonwealth legislation?

MR SILBERT:   The inconsistency existed, in my submission, not, but it was not necessary under Victorian presentment rules to actually specify the ownership, who actually owned, but that is an anterior point, in any event.  I mean, the legal ownership of those goods is a condition precedent, one assumes, to the validity of the presentment.  So, in my submission, an amendment to the presentment could not have cured a defect if there was a defect.

HAYNE J:   What authority would the State prosecutor have had to prosecute the Commonwealth offence?  I am not saying there is none, but what would the authority be?

MR SILBERT:   Well, normally it is done on delegation and certain State prosecutors have delegations from the Commonwealth to prosecute Commonwealth offences so that they are able to sign a Commonwealth indictment, but we are well away from the point that Justice Crennan has just raised.  In the formulation of the indictment, or the presentment as it existed, could have simply specified property belonging to another, but it would not have cured it if the legal ownership of that property vested exclusively in the Commonwealth.  So the question is whether it vested exclusively in the Commonwealth and my position is it is certainly vested in the Commonwealth but not exclusively.  There was part of that ownership that vested in a State entity, and I have to maintain that position otherwise I am fairly in collision with the inconsistency position.

FRENCH CJ:   Well, you can appreciate our concern that you should not deal with this case on a false premise.

MR SILBERT:   I certainly do, your Honour, and your Honour’s concerns may extend to section 78B notices to each of the States because the Court has drawn attention to conflicting authorities in New South Wales and Queensland.  It seems amazing that this position has never been finally resolved, but there may in fact be a major constitutional point there if the Court has doubt as to where ownership vests.

FRENCH CJ:   There is a saving of State laws in 261.1 of the Code, but that is not conclusive of the question about inconsistency.

MR SILBERT:   No, it is not, your Honour.  So my submission is that there was a vestige, a sufficient vestige, of ownership left in the State, but I do not know that I can take the submission helpfully beyond that.  If not, it may well be that each of the States needs to be here in order to ‑ ‑ ‑

GUMMOW J:   Yes, but the States cannot, as it were, hijack a case that Mr Danos does not want to put.

MR SILBERT:   No, it cannot, your Honour, and the point was never taken.  The trial proceeded in front of a jury on the basis that there was an undoubted theft and that ownership was – there were no exceptions to the charge and, indeed, your Honours will have seen that when the judge charged at 517 of the appeal book, volume number 2, she simply directed the jury:

In this case you have heard evidence that the subject cigarettes were in fact seized by Customs and placed in storage at their leased premises with the Dominion Group.  I direct you as a matter of law, that for the purpose of the charge the cigarettes may be regarded as belonging to another and the reference to Dominion Group is encompassed within that expression.

GUMMOW J:   What page is that?

MR SILBERT:   Page 517 of the appeal book, your Honour.  So this point, as interesting though it is, it resolved itself into one paragraph of an agreed charge that raised no exception by the time the matter went to the jury.

BELL J:   It may have been right to say that there was, as it were, no issue about proof of the fact that the property belonged to another within the meaning of the provision since, as I think, you were putting earlier, Mr Crown, it is not a requirement that one lay the property in an identified individual.  But that would not relieve the difficulty.

MR SILBERT:   No, it would not, your Honour.  The question remains.

BELL J:   Yes.

FRENCH CJ:   Yes, thank you, Mr Silbert.

MR SILBERT:   If your Honour pleases.

HEYDON J:   Could I just ask one question?  In paragraph 6.18 the word “exclusively” is in quotation marks.  From what section is that a quotation?  What is being quoted?

MR SILBERT:   I think it is more emphatic.  It probably should be emboldened, rather than in quotes.

HEYDON J:   What words would lead one to embolden the word “exclusively” so as to make it an arguably available submission?  What words of what section in the Criminal Code?

MR SILBERT:   The word “exclusively” does not appear in section 131.1 of the Code.  Simply the condition precedent there is that the property belongs to a Commonwealth entity.  Now, I suppose what is being put is that impliedly that means belongs exclusively to a Commonwealth entity.  This is just highlighting the question of inconsistency because when one goes to the State Act there is a division of ownership and a division of possession and a division of control so it is fragmented.

FRENCH CJ:   That is not based on a reading down approach.  It was simply ‑ ‑ ‑

HEYDON J:  You just raised another matter that you might help me on. Is there any equivalent to section 71(2) in the Criminal Code (Cth)? Section 71(2) speaks of possession or control being sufficient to create property.

MR SILBERT:   I do not believe there was, your Honour.  There was a later enabling provision at section 131.9 of the Code, which I cannot submit is of great help, but it does exist and that is the closest I can come to pointing to a provision in answer to your Honour’s question.

HEYDON J:   What is your proposal then for the future conduct of this application?  I mean you are representing the State of Victoria and it does not seem satisfactory that the State of Victoria should have someone locked up if, in truth, that person was locked up because they were found guilty of an offence not known to the law.

MR SILBERT:   No, it does not, your Honour, but we have not got to the point where we know whether it is an offence not known to the law at this point in time.

HEYDON J:   Do you want to put general arguments in favour of the State’s position on that now, or what?

MR SILBERT:   Well, I am not sure I can expand much beyond what I have put in answer to the Chief Justice, namely that there is a fragmentation that theft is based on possession and control and that the evidence established sufficient possession and control in order to allege in the indictment that the property had been stolen from another.

BELL J:   Coming back to the question of possession.  The reference to Domonion’s control over the premises such that Custom’s required Dominion’s permission to enter the premises, which you put earlier, Mr Crown, I had in mind a passage in the trial judge’s summing up at appeal book 526, where her Honour said that “Outside normal business hours” – this is at line 25 and following – only Dominion staff were able to access the premises and hence the requirement for Dominion staff to give Customs access to the area.  That is just to clear up that matter that was raised earlier, but generally I am unclear on what facts you rely on for the assertion of possession of the cigarettes contained within the cage leased by Customs being a cage to which only Customs had access.

MR SILBERT:   Yes, your Honour.  Well, the evidence comes effectively from four Dominion witnesses, Walsh, whose evidence commences at page 49 of the appeal book, who was a servant employed by Dominion.  At 21 he said that part of the warehouse was leased to Customs and goes on to describe the caged areas and the segregation of the areas.  He said at 53 line 9 that they did not have access to the compound and suggested that in order to gain access at 11:

he suggested that if we got our security to disconnect the alarm, and we could cut the padlock with bolt cutters and that Customs would cover any costs involved.

So they had control of the alarm system.  They had control of the entrance to the segregated area.

FRENCH CJ:   He said in his evidence, I think, at 60, in cross‑examination, it is put to him:

It’s their area?---We don’t have any control of their area.

MR SILBERT:   Yes, he did say that, but he does not necessarily stay with that.  The position, I do not think, is that clear, in my submission, your Honour.  At 54 line 13:

during one conversation I advised him that when they do come, to remove the Banora stock –

which was the produce of a seizure –

then he would have to produce identification and he said that would not be a problem.

So, they were dependent on permission in order to access the area to which they had seemingly exclusive access.  There was an anterior licence required, or permission required, from Dominion in order to access the area.  Then at 24:

He eventually responded in person, prior to that I had already obtained the code, from our accountant.

So there is a degree of control resting, in my submission, in Dominion which means that it is not exclusively in the Australian Customs.  At the top of 55, he said:

I advised him that we had got the alarm code and that to use bolt cutters to cut the lock would be okay.

So there is, in my submission, clear evidence that Dominion did have a degree of control.

BELL J:   At appeal book 526, line 12, the trial judge summed up the case to the jury on the basis that Dominion staff did not have any control over the area leased by Customs.

MR SILBERT:   Yes.

BELL J:   I suppose the circumstance that Dominion had to use bolt cutters ‑ ‑ ‑

MR SILBERT:   Evidences that.

BELL J:   Indeed.

MR SILBERT:   Yes.

FRENCH CJ:   There was some evidence also, I think, it is either by Mr Walsh or Mr Hanna, that they would require, in response to the telephone calls, identification from whoever turned up at the premises.

MR SILBERT:   Yes, there was, your Honour.  At the end of the day, in my submission, it was not unfettered control by Customs.  It might have been a large degree of control, but it was still dependent on consent and co‑operation from Dominion in order to access the segregated area.  They could not have done it had Dominion declined them entry to the premises.  They would not have been able to gain access.

HAYNE J:   If I may say so, Mr Silbert, the difficulty in that proposition may be obscured by referring to access to the segregated area.

MR SILBERT:  Yes.

HAYNE J:   There is a difference, perhaps a radically importance difference, in this case between access to the perimeter of that area and access to the goods that lie within it.

MR SILBERT:   Yes.

HAYNE J:   Relevantly we are concerned, are we not, with access to the goods within it?

MR SILBERT:   Well, after access has been gained to the area surrounding that particular area.

HAYNE J:   Sure.

MR SILBERT:   So, conceding that permission is granted to enter that area, then the question your Honour poses is obviously the correct one.  I, obviously, have to rely on the anterior question that Dominion was in a position to exclude Customs from reaching the area had they chosen to do so.

FRENCH CJ:   For the purposes of the 109 point that we have been talking about earlier all that falls to one side if, on its proper construction, section 130.2 in defining the concept of property belonging to a person, read into the offence provision, covers a situation where the Commonwealth, or Commonwealth entity, has control either solely or in conjunction with some other non‑Commonwealth entity.

MR SILBERT:   Undoubtedly, your Honour.  If the Court was to say that there is a cogent argument that the Commonwealth had control and possession, then clearly the inconsistency point clearly arises, because there is clearly a clash with the State legislation.

FRENCH CJ:   Yes.  Thank you, Mr Silbert.

MR SILBERT:   If the Court pleases.

FRENCH CJ:   Mr Danos, really it seems to me, speaking for myself, the question for you, is whether or not you are going to seek to enlarge your application for special leave to include a ground that the Court of Appeal should have held that the cigarettes were Commonwealth property within the meaning of the relevant provisions of the Criminal Code and that, accordingly, theft of the cigarettes was not an offence against the law of Victoria, and that the presentment should have been quashed.  The question for you is whether you are going to want to enlarge your grounds to that end or proceed as you have already set out in the current application before us.

MR DANOS:   I would seek the indulgence of the Court for some time to consider that proposition, your Honour, if I might.

FRENCH CJ:   How much time do you need?

MR DANOS:   Fifteen minutes?

FRENCH CJ:   Yes, all right.  The Court will adjourn for 15 minutes.

AT 10.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.50 AM:

FRENCH CJ:   Yes, Mr Danos.

MR DANOS:   If the Court pleases, your Honours, I would seek leave to enlarge the ground to encompass the issue being raised by the Court.

FRENCH CJ:   Do you have a formulated amendment to your application?

MR DANOS:   Not at this point in time, your Honour, no.

FRENCH CJ:   How soon can you be in a position to file that proposed amended application?

MR DANOS:   That could be filed by the end of the week, your Honour, certainly.

GUMMOW J:   What about over lunchtime?  You heard what the Chief Justice said to you this morning, or your junior has, I hope. 

MR DANOS:   The only problem that seems to exist in relation to it is the serving of the section 78 notices.

FRENCH CJ:   Yes.  That is a separate issue.  We can deal with that in a moment.  The core of the special leave question, as we discussed it with you this morning, is the proposition that the Court of Appeal should have held that the theft of the cigarettes referred to in the presentment was not an offence against the law of Victoria and that the presentment should have been quashed as not disclosing an offence.  That is really what you would be asserting, I would think.  I do not think that it takes a week to ‑ ‑ ‑

MR DANOS:   Your Honour, the only reason that I was contemplating in that context was because of the requirement of giving all the notices as well so that the ‑ ‑ ‑

GUMMOW J:   Well, you do not give the notices until you get a grant of special leave actually because there is no matter in the Court.  So the question would be you would want to expand your application for leave and you would want us now to rule on it, I expect, there being, I think, an absence of loud opposition from Mr Silbert.

FRENCH CJ:   Mr Silbert’s silent language.

GUMMOW J:   That would clear the record and then attention can be given to section 78B notices between you and Mr Silbert.  Then we could think about fixing a date for hearing.

MR DANOS:   Yes, well in those circumstances that can certainly be done over lunchtime.

FRENCH CJ:   Why do we not do it this way, Mr Danos?  Why do we not say that the Court will – if you now apply for it – allow you to amend your application to read “That the Court of Appeal should have held that the cigarettes referred to in the presentment preferred against the applicant were Commonwealth property and that accordingly (a) theft of the cigarettes was not an offence against the law of Victoria, and (b) the presentment should have been quashed as not disclosing an offence”.  Now, do you seek an enlargement of your grounds to encompass that?

MR DANOS:   Yes, your Honour.

FRENCH CJ:   All right.  Mr Silbert, would you oppose the grant of special leave in relation to that ground?  I know ‑ ‑ ‑

MR SILBERT:   I would not, your Honour.

FRENCH CJ:   Yes, all right.  Special leave will be granted to appeal on that ground.  The application for special leave in respect of the other grounds will still have to be argued along with the principal ground that we have just discussed.  You will also need to consider the relief that you would have to seek in conjunction with that new ground, which would include orders in lieu of those made by the Supreme Court of Victoria that leave to appeal be granted and the appeal be allowed and that the conviction and sentence be quashed and the presentment preferred against the applicant be quashed.

In saying this, Mr Danos, I want to make it quite clear to you that speaking for myself I express no concluded view.  There are obviously debates on both sides about this important question.  However, to proceed with this special leave application on the possibility that the whole thing may be moot because of the constitutional point would be inappropriate, I think.  There will be a need to file and serve notices under section 78B of the Judiciary Act forthwith.  That can be done either by you or by Mr Silbert, I imagine.

MR SILBERT:   I am happy to volunteer, your Honour, it might expedite matters.

FRENCH CJ:   You might just be a little bit better geared up to do that, Mr Silbert.  Now, we have in mind that the hearing of the appeal in respect of the ground on which special leave has been granted and the balance of the application on the other grounds could be listed for hearing on Tuesday, 31 August.

MR DANOS:   Yes.

FRENCH CJ:   You will need to file your amended special leave notice, your notice of appeal in relation to the ground on which leave has been granted and, of course, the draft notice in relation to the other grounds would stand.  You will need to do that, I would think, very promptly.  It should be possible to do that by close of business this afternoon, I would have thought.

GUMMOW J:   Now, given the imminent hearing date, does that have any impact on the bail question?

MR DANOS:   Well, in the circumstances, your Honour, we would still seek the possibility of raising the issue of bail.  We understand that it is not opposed by the Crown, although admittedly it was not contemplated that the hearing would be quite as soon as – when we discussed that issue, it was not anticipated that the hearing would be quite as quickly as the Court has indicated, but nevertheless, your Honour, this man has now served two and a half years and ‑ ‑ ‑

HEYDON J:   It is a cruel thing to let someone out for a month and then put them back in again to do the next two years if the arguments advanced on his behalf fail.

MR DANOS:   Obviously, I am not in a position to take instructions as to whether he would want to do that, your Honour.

GUMMOW J:   You have heard what the Chief Justice said to you which is by way of caution against any assumption that there is an open and shut case on section 109.

MR DANOS:   Yes, I am conscious of that, your Honour.

GUMMOW J:   Reference has already been made this morning to section 261.1 of the Commonwealth Code which speaks of an intention by the Parliament not to exclude laws of States or Territories.

FRENCH CJ:   Well, what is your position with respect to bail?  Are you applying for bail?

MR DANOS:   Yes, your Honour.

FRENCH CJ:   Well, that is normally granted only in exceptional circumstances by this Court.  How do you support the application?

MR DANOS:   Well, the exceptional circumstances, your Honours, in my respectful submission, are the length of time that he has already served and, your Honours, given the nature of the extent of the application as a whole, not just the section 109 question, we would submit that there is a reasonable prospect that these matters would be successful in all the circumstances.  If the position is that he has been held in custody on a presentment that ought to have been quashed from the beginning, in my respectful submission, if that is a reasonable position, then, as it now stands, your Honour, he is currently in custody, one might be tempted to say, certainly using the word “broadly”, on an illegal basis.

KIEFEL J:   What is the balance of the sentence to be served?

MR DANOS:   Nearly two years.

GUMMOW J:   He is not under sentence for any other offence?

MR DANOS:   No.

BELL J:   So there is no question, having regard to the relatively short period between the date of the application and the date when the matter can be argued, of the appeal, if successful, being futile in the sense that there remains a balance of sentence of close to two years before the expiration of the non‑parole period.  The circumstance that there may be said to be

reasonable prospects of success would not be an exceptional circumstance justifying the grant of bail would it, Mr Danos?

MR DANOS:   Given, in my respectful submission, the nature of the additional ground that has been raised this morning and the circumstances in which they have been raised, in my submission, does put it into a category of something quite exceptional.

FRENCH CJ:   Yes, thank you, Mr Danos.  The Court is of the view that this is not an appropriate case for the grant of bail and the bail application will be refused.

HEYDON J:   Can I just, Mr Danos, give you a reference which may be of assistance in working out your argument?  It is to the argument of Mr McLelland QC in The Queen v The Credit Tribunal; Ex parte General Motors Acceptance Corporation 137 CLR 545 at 548 to 549, together with Justice Mason’s reasoning in his judgment in relation to that argument.

MR DANOS:   Thank you, your Honour.  I appreciate it.

GUMMOW J:   This bears on section 261.1, I think.

FRENCH CJ:   So what remains for you to do now, Mr Danos, is to file your amended special leave application, the notice of appeal incorporating the ground in respect of which leave has been granted.  We have your draft notice of appeal in relation to the other grounds.  Between you and Mr Silbert, the 78B notices have to go out forthwith.  Otherwise the matter will be listed for hearing commencing 10.15 am on 31 August 2010.  Is there anything else, Mr Silbert?

MR SILBERT:   No, your Honour.

FRENCH CJ:   All right.  The Court will adjourn until 10.15 am tomorrow morning.

AT 12.03 PM THE MATTER WAS ADJOURNED