Downey v The Queen

[1994] HCATrans 221

·-,-~~

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S2 of 1993

B e t w e e n -

LORELLE JOY DOWNEY

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Downey 4/3/94

AT SYDNEY ON FRIDAY, 4 MARCH 1994, AT 11.46 AM

Copyright in the High Court of Australia

MR P.J. HIDDEN, QC:  May it please the Court, I appear with

my learned friend, MR P.J. SAIDI, for the

applicant. (instructed by Paul K. Bell & Co)

MR R. KELEMAN:  May it please the Court, I appear for the

respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales) )

BRENNAN J: Yes, Mr Hidden.

MR HIDDEN:	If the Court pleases. Your Honours, this application raises a number of questions and might
we deal, Your Honours, initially with the one last
raised. Your Honours, there has been filed, only recently, a supplementary outline of argument, or
summary of argument, which we trust Your Honours
have, which raises a question which we have to
acknowledge at the outset was never agitated in the Court of Criminal Appeal or at any earlier stage.

The applicant, Your Honours, was found guilty

of obtaining money from the Government Insurance

Office by deception under section 178BA of the

Crimes Act of New South Wales, the deception being

as it appears in the judgment in the Court of

Criminal Appeal by falsely stating material

particulars when making a claim against an insurer.

She was ordered to perform 200 hours community

service, Your Honours, which she has performed I

understand.

Your Honours, the additional issue which has

arisen is the decision of this Court in Jamieson &

Anor v The Queen, (1993) 67 ALJR 793, which is no

doubt fresh in Your Honours' minds. One of the

questions which arose there was the immunity of a party or a witness from prosecution in respect of words spoken in office for the purpose of a

litigation, that is, from prosecution other than

from an offence dealing with the administration of

justice such as perjury, intent to pervert the

course of justice and the like.

Now, Your Honours, in Jamieson, the case was

argued on the basis that all the Crown relied upon,

and only upon, the service on the Government

Insurance Office of a statement of claim and on no

other material and the majority of this Court held

that the long-standing common law immunity

discussed in that decision extended to pleadings

which were, in the relevant sense, words spoken in

office. There was another basis on which the

majority held that the statement of claim could not
found the prosecution of that nature in any event,

but for present purposes it is sufficient to say

Downey 2 4/3/94

that the court took the view that a statement or

claim, or pleadings, enjoyed the same immunity from

prosecution other than for an offence relating to

the administration of justice.

Now, as I have said, Your Honours, here the

indictment, the terms of which are set out in the
application book at page 60, at the beginning of

the judgment of the Court of Criminal Appeal,

simply refers to the dishonesty or the deception

being:

falsely stating material particulars when

making a claim against an insurer -

and that is not further developed in the indictment

itself.

There were, in evidence, in fact,

Your Honours, a number of documents; a statement of

claim was one of them. In addition,there was a

letter of demand which referred in its terms to the

assertion by the applicant that she was a passenger

on the bike at the time it ran off the road. There
were particulars of negligence supplied separately

from the statement of claim but supplied in

accordance with the rules of court.

DAWSON J: But the letter would be enough.

MR HIDDEN: Well, Your Honours - - -

DAWSON J:  I just wanted to refer to a passage in the

judgment of myself and Justice Deane where the

rather curious isolation of the statement of claim

was referred to and that at the bottom of page 793

and the top of page 794:

where the Crown has not sought to resile from

the isolation of the service of the statement
of claim from any other dealings which the

particular appellant may have had with the GIO

and where the courts below have dealt with the

cases on the basis on which the parties have

been content to argue them - - -

MR HIDDEN:  Your Honour, with respect, I understand it - - -

DAWSON J: It is a very confined decision.

MR HIDDEN: Yes. Well, Your Honour, we understand that

Jamieson was very confined, but our submission is

that this Court ought to look beyond the confined

question which was considered in Jamieson and ought

consider this question, whether the immunity
extends to documents necessarily involved in the

prosecution of litigation; a letter of demand is,

Downey 4/3/94

as a matter of course, sent to the prospective

defendant.	In personal injury litigation, medical
reports are obtained as a matter of course.	And I

interpolate there, Your Honours, there were in

evidence three medical reports:  one of Dr Taylor,

apparently obtained by the applicant as the

plaintiff; the other two, Ors Lawson and Hughes,

obtained after a medical examination by those
doctors on behalf of the GIO, those reports being

required under rules of court.

BRENNAN J:  Mr Hidden, your submission would make Litigation

or threatened litigation an alsasia for fraud,

would it not?

MR HIDDEN:  Your Honours, the community would be protected

by the offences relating to the administration of

justice, in my submission. It may be an attempt to

pervert the course of justice or conspiracy to do

so but, in our submission, Your Honours, the

reasons of policy for the immunity must extend to

those ancillary documents which are inevitably

prepared in the course of litigation of this kind

and it would be to lose sight of the policy, in our

submission, to confine the immunity strictly to

pleadings and to no other associated document.

Bearing in mind as I have observed,

Your Honours, two of the medical reports were

prepared after a requisition under rules of court

requiring the plaintiff to submit to medical

examination on behalf of the GIO if she were to

proceed with the litigation. The report obtained

on her own behalf was again a normal and necessary

adjunct to the litigation, as was the - - -

TOOHEY J:  But in the absence of particulars, what are we to

make of the indictment? Why should we regard the

medical reports as an essential part of the

indictment? Why not the letter?

MR HIDDEN: Indeed, Your Honours, that is so. The

indictment was drawn in very broad terms and it

would seem that the case was run on the basis that,
which document or documents constituted the

deception, was not a vital matter. The case was

run on the basis that a claim was made that she was

the passenger. The Crown said that was false. She

said that was true and the issue was, was the jury

satisfied beyond reasonable doubt that what she

said was false.

TOOHEY J: Exactly. That only points up the difficulty of

arguing that there is an immunity attaching in this

case.

MR HIDDEN: Well, Your Honours, I appreciate that.

Downey 4 4/3/94

TOOHEY J:	You do not get much joy from Jamieson, do you?
MR HIDDEN:	No, only in so far
TOOHEY J:	I mean, the majority put it on a limited basis

and the dissentients would have you out of court

anyhow.

MR HIDDEN:  I appreciate that, Your Honour.

DAWSON J: It is a very limited basis the majority put it

on. I mean, the delivery of a statement of claim can constitute part of a course of conduct which

amounts to attempting to obtain money dishonestly or whatever the particular offence is. It was in this case, because the Crown chose to restrict it just to the statement of claim, the result was

arrived at here.

MR HIDDEN: Your Honour, I do understand that. It is our

submission that the Court should now look beyond

that and examine the question whether it might

extend - - -

DAWSON J: In that respect, the judgment is against you.

MR HIDDEN: Well, with respect, Your Honour, in our

submission, the judgment is silent on this point,

on the point we are now arguing; that is the

judgment of the majority.

BRENNAN J:	I come to this judgment afresh
MR HIDDEN:	Yes, Your Honour, I appreciate that.

BRENNAN J: - - - and I read page 795, column 1, letters B

to E, in terms which fly in the face of the

submission you are now putting.

MR HIDDEN:  Not necessarily, in my submission, Your Honours.

That passage, in my submission, could include

situations where representations are made or documents are prepared, which are not in the

ordinary course of litigation, but beyond it. For

example, a false statement to a police officer at

the scene of the accident, we would not suggest

would fall within the immunity, and if the Crown

sought to rely upon that as the foundation of its

indictment, yet it may be that evidence of the

subsequent proceedings would be relevant in proof

of the falsity or at least in proof of the state of

mind of the accused and, indeed, I think the
majority - indeed, the judgment of Your Honour and

Justice Deane, Mr Justice Dawson envisaged a

situation where evidence of a statement of claim

may have evidentiary force, although it is not

itself the foundation of the Crown's case.

Downey 4/3/94

Your Honours, I perceive Your Honours are seized of

the point and we do not wish to develop it further.

But, in our submission, it is one of importance

which requires examination.

Your Honours, if I may turn then to the matters which were originally agitated. They are

summarized succinctly in the outline of argument
which commences at page 87 of the application book

and probably do not need a great deal of development, except perhaps one of them.

Your Honours, the first matter raised is the

Listening Devices Act matter. Your Honours, the

relevance of that appears from some of the evidence
extracted at page 63 of the book, Your Honours, in

the judgment of the Court of Criminal Appeal of

Mr Justice Carruthers.

This relates to the evidence that

investigating police went to the home of the

applicant and raised the question of the collision

in which she had been injured and then said, and

this appears at line 17, Your Honours - I am sorry,

Your Honours, it is put to the applicant that the

man, Rayner, who had given evidence against her, of

course, alleged:

that he had a conversation with -

her -

about the motor cycle collision -

and Detective Lyons went on:

At the time of that conversation Rayner was recording your conversation on a concealed

tape recorder.	I have transcripts of some of
that conversation.	Do you wish to comment on
that?

Now at that point, Your Honours, the applicant is

which could mean that in a sense both of them were	alleged to make admissions; basically admissions	in control of the bike at the relevant time, but
certainly she was sitting at the front, operating
the controls under Rayner's instructions.

Now, Your Honours, of course, Rayner's

recording of his conversation with her was
inadmissible by virtue of the Listening Devices Act

as was any transcript of it. No bones were made about that and His Honour told the jury as much.

The submission, Your Honours, is that it was the

reference to the illegal recording of the

conversation and the existence of an equally

illegal transcript of it, which led to the

Downey 6 4/3/94

admissions being made; assuming for the moment, for

the purpose of this exercise, that they were made. Your Honours, it was our submission in the

court below and it is here that that then renders

the evidence of the confession inadmissible on two bases: firstly as a matter of law in the light of

section 13 of the Listening Devices Act. Now,

Your Honours, the relevant parts of that section
are set out in the application book in the judgment
of Mr Justice Carruthers, commencing at page 64,
right at the bottom of the page. Section 13(1)

provides:

Where a private conversation has come to the

knowledge of a person as a result, direct or

indirect, of the use of a listening device in

contravention of section 5 -

(a) evidence of the conversation; and

(b) evidence obtained as a direct consequence

of the conversation so coming to the

knowledge of that person,

may not be given by that person in any civil

or criminal proceedings.

Now, Your Honours, our submission is that in the

light of the course of the conversation between the detectives and the police as they recounted it, the
admissions said to be made by the applicant flow

directly from Detective Lyons revealing the

existence of an illegally obtained tape and a

transcript of it.

In our submission then that - the evidence of

the confession - qualifies under subsection (l)(b)

as ''evidence obtained as a direct consequence of

the" private ''conversation so coming to the

knowledge of" Detective Lyons. Now the Court of

Criminal Appeal said, "Well however that may be,

the situation is resolved by subsection (2)(b).

Subsection (2) says that the evidence is not

rendered inadmissible by subsection (1) if, among

other things:

the private conversation concerned comes to

the knowledge of the person called to give the

evidence otherwise than in the manner referred

to in that subsection, notwithstanding that

the person also obtained knowledge of the

conversation in such a manner.

Now, Your Honours, as the Court of Criminal Appeal

noted, the sequence of events was this: Rayner had

his conversation with the applicant and taped it

Downey 4/3/94

available to the police and someone, I am not quite

illegally; he made the tape available to the

sure who, made a transcript of it. But what is

clear is that the police were in possession of that

taped conversation before they themselves

interviewed Rayner. They then did interview Rayner

and there came into existence a record of interview

with him. And the Court of Criminal Appeal said,

"Well, that being so, there being a record of

interview with Rayner", in which he apparently

asserted that the conversation had occurred in much

the way as it appeared from the tape, "then

subsection (2)(b) is satisfied and the police had knowledge of the private conversation, not purely

as a result of the illegal tape, but from another

source".

Your Honours, our primary submission as to

that is that where subsection (2)(b) uses the verb

"comes to the knowledge":

if the private conversation concerned comes to

the knowledge of the person -

it means it is talking about how the private

conversation initially comes to the knowledge of

the person giving the evidence.

BRENNAN J: Why? Because, obviously it is speaking about

two different manners, one of which one must assume

precedes the other.

MR HIDDEN:  Yes, but, Your Honours, in our submission, the verb "comes to" suggests "initially".

BRENNAN J: But the subject-matter - if "comes to the

knowledge" deals with manner (a) and manner (b),

then the submission that you are making in terms of

what "comes to the knowledge" means, must take

account of the fact that there is two several

manners to which it relates.

MR HIDDEN: No. Well, Your Honours, in my submission, the

problem, if there be one, is resolved by

interpreting the subsection in this way: if the

person already knew about the conversation from

some other source, it is not to the point that he

or she later discovers that there is a tape of it,

and that gives sense to the words "comes to the

knowledge". One does not speak of something coming

to ones knowledge when one already knows it, in my

submission and, indeed, that is consonant with the
purpose of this section, in my submission,

Your Honours, because it would be quite simple if people were minded to get around this provision, to

simply engineer it so that evidence of the

Downey 4/3/94

conversation comes forward in some other form, and

thereby circumvent the purpose of the subsection.

So, Your Honours, that is our submission in respect

of the admissibility of the confession as a matter
of law.

Now, Your Honours, the court was also asked to

consider the admission of the evidence as a matter
of discretion and it was asked to do so,

Your Honours, I must say, on the basis of the

fairness rather than the public policy discretion,

but it is our submission that this evidence could

raise both and, in the light of the decisions of

this Court in Pollard and Foster, both discretions

are equally relevant to the admission of

confessional evidence.

Your Honours, the submission really is this:

the police tell this girl that they have a taped conversation and a transcript of it; they do not

tell her that that evidence could never be used

against her. The use of that evidence is

proscribed by the Listening Devices Act.

BRENNAN J:	Why should they?
MR HIDDEN:	A matter of fairness, Your Honour.

BRENNAN J: Fairness to whom?

MR HIDDEN:  To her.

BRENNAN J: Why?

MR HIDDEN:  Your Honour, in the light of what precisely did

happen. On the Crown case, she then confesses,

presumably, upon the assumption that her number is

up, there is a taped conversation, that is the end

of it. The police will use that if she does not
confess. That is the implication, Your Honours.

Now, in my submission, Your Honours, fairness

required her to be told. Certainly the police may

have said, "Look we have since interviewed Rayner;	he has made a record of interview, we anticipate he
is prepared to give evidence against you", that
would be fair. All they say is, "We have got a
tape and a transcript of it", the clear implication
being, "We can get a conviction of you on the basis
of that material". It is not expressed, but it is
implied, Your Honours. Now that is wrong, and to
have conveyed that impression, in our submission,
is unfair.
Thirdly, Your Honours - now the Court of Criminal Appeal considered that discretion, but
said, in relation to it, that because the
reliability of the confession did not appear to

Downey 4/3/94

have been affected by it, there was an end to the question of fairness, to the fairness discretion. Now, in our respectful submission, Your Honours,

therein lies the error, because the question of the

reliability in the sense of whether the confession

is true, might be affected by the means in which it

was procured, is not the alpha and omega of the

fairness discretion; the fairness discretion

extends to situations where the evidence might be

entirely reliable, but it is obtained by trickery

or by some - - -

DAWSON J: In a perfect case, that might be an interesting

question, but there is a divergence in the views on

that.

MR HIDDEN:  I understand that, Your Honours, which, in my

submission, is another reason for this Court to

consider that very question. I appreciate once one

speaks about trickery or unfairness, of the kind of

which I speak; one is talking more I suppose about

the public policy discretion rather than the old

common law fairness discretion, but it is our

submission, Your Honours, that the court

erroneously limited its consideration of the

exercise of the discretion, in circumstances where

this Court ought to grant special leave to consider

the issue and to correct the error.

Your Honours, the other matters raised can be

dealt with briefly, except for one on which I wish

to, subject to that orange light, spend a couple of

minutes, Your Honours. Your Honours, there is a

complaint also as to the way in which the court

dealt with His Honour's directions on the evidence

of Rayner in the light of his status as an

accomplice. Your Honours, His Honour declined,

although asked, to give the traditional - - -

BRENNAN J:	I think your time is up, Mr Hidden.
MR HIDDEN:	May it please the Court.  May I merely make this

submission, Your Honours, given that the summaries

of argument were prepared in this case under the
old system, they are not as detailed as the new

system would suggest, I would submit that we might

be allowed a little more time, Your Honours.

BRENNAN J: Very well, Mr Hidden; a couple of minutes.

MR HIDDEN:  Yes, thank you, Your Honours. May it please the

Court. Your Honours, that being so, may I simply

go to the very last matter to which we wish to

refer which is perhaps not adequately set out in

the summary of argument. Your Honours, this is a factual question, but one of such significance in

this appeal that, in our submission, the court,

Downey 10 4/3/94

dismissing this as a ground of appeal, amounts to a

manifest miscarriage of justice which this Court

would not leave unremedied, and that is the fact

that at the very end of the trial the jury asked a
question, and it was based upon the admissions

which, incidently, suggests that the juror is

probably more interested in the evidence of the

admissions than the evidence of Mr Rayner. In

effect, the jury's question was this, "If we accept
the admissions, who was the rider?", the admission

suggesting that she was being taught to ride and

that Rayner himself maintained some control over

the vehicle; "who was the rider?". Now, clearly the jury asked that question because the way the case had been run, the only issue was who was the

rider.

Now, it is at that point, Your Honours, that

this question of the technical meaning of "pillion

passenger" arose. The effect of His Honour's final

direction to the jury, which is set out,

Your Honours, in the judgment of the Court of

Criminal Appeal, at pages 77 to 78, is that all of

a sudden the case becomes not a question of whether

she falsely stated she was a passenger, but falsely
stated whether she was a pillion passenger which

the jury was told meant a passenger sitting behind

the rider at the rear of a bike. Now, assuming

that is what it means, Your Honours, what did that
have to do with it?

Clearly, the question was was she in control of the vehicle or was Rayner. If Rayner was, then

she was entitled to be compensated. If she was,

she was not. That was the way the case was argued.

Whether she was a passenger sitting at the back of

the vehicle, which the word "pillion passenger"

means or in some other place on it, it had

absolutely nothing to do with it. That is

confirmed, Your Honours, by some references in the

summing up. If I could take Your Honours to page 9

of the application book, for example.

Your Honours, there are a number of

references. It is perhaps most convenient,

Your Honours, to take Your Honours to page 25 of

the application book. Now, there have been a

number of references to the question whether she

was rider or passenger throughout the summing up in

reference to the evidence. His Honour finally put

the case this way, at line 29 at page 25:

The Crown must prove beyond a reasonable doubt

that the accused did practise a deception in

order to gain compensation to which she wasn't

entitled; the deception being the false

statement that she was not the person driving

Downey 11 4/3/94

the bike; that she was the innocent passenger

and that the accident occurred as a result of

negligence on the part of Mr Rayner when he

was riding the bike.

Now, Your Honours, at the end of the summing up His Honour invited counsel in the usual way to make any further submissions and the Crown uttered

not one word of complaint about the case being put

in that way. Yet, in answer to the jury's

question, we now have His Honour saying - it is
convenient, Your Honours to go to page 77 where it

is extracted in the Court of Criminal Appeals

judgment, at line 30:

A pillion passenger, by definition, is

somebody sitting on a rear seat, that's a

dictionary definition and also referred to in

similar terms in regulations under the Motor

Traffic Act. So I think there is no

difficulty in understanding that pillion

passenger refers to a person sitting behind

the rider or the driver and to no other

situation. So repeating that, the Crown does

not set out to prove that she was in fact the

rider. It sets out to prove that she was not

the pillion passenger -

Your Honours, with respect, all the Crown set out

to prove was that she was, in fact, a rider. That

was the Crown's case. And to say at the eleventh

hour that that is not the Crown's case, it is

really about where she was sitting on the bike and

whether she was sitting on the back as a pillion

passenger was completely to misrepresent the case.

Now, within a short time after that direction,

Your Honours, after a long prior retirement, the

jury come back and say "Guilty". Guilty of what,

Your Honours? Of not being a pillion passenger?

That was never the Crown case.

other references in the summing up where the Crown I can take Your Honours, if necessary, to

case is clearly put on the basis was she in control

of the vehicle or was Rayner? That was all it was

ever about, and the jury were completely misled,

right at the end, as to what the Crown set out to

prove.

BRENNAN J:  I am not following this, I am afraid, Mr Hidden.

MR HIDDEN: Putting it another way, it means this: the

effect of His Honour's - - -

BRENNAN J:  The Crown case, all the way through, was that

she was not in control of the bike.

Downey 12 4/3/94

MR HIDDEN:  No, the Crown case was that she was.

BRENNAN J: That she was in charge of the bike, yes, that is

right.

MR HIDDEN:  Yes, that in fact she was the rider but falsely

asserted that she was a passenger.

BRENNAN J: Falsely asserted that she was not in control of

the bike.

MR HIDDEN:  Yes.

BRENNAN J: Right. Now what is - - -

MR HIDDEN:	Now, if Your Honour then goes to - let me just trace it through, Your Honours. It is sufficient
to take Your Honours to page 77 of the book. The jury's question, which was late in the day, was to this effect - bear in mind the effect of the
applicant's admissions to the police, if they were
accepted, was that she was controlling the bike
with Rayner behind her assisting her and teaching
her.  Now, in the light of that the jury asked a
reasonable question which is recorded at line 10:

"If this statement is taken as a true

statement, who is determined to be the rider,

the person at the front of the bike or the

person in control?"

Clearly, Your Honours, the jury were rightly

concerned in the light of the admissions as to who

was in control of the bike which they saw as the

vital question.

Now, my learned junior who appeared in the

trial, in our submission, provided the right

answer. He said to His Honour, "Well, the answer

is that's a jury question. That's a matter for

you, ladies and gentlemen to determine in light of

the whole of the evidence." But His Honour instead

gave this answer - there had been reference

throughout the evidence to the assertion that the

applicant was a pillion passenger and it is clear,

Your Honours, that that expression was not used in

any technical sense. It was used merely to mean a

passenger as opposed to the rider on a motor cycle.

What His Honour finally directed the jury was the

case was really about whether her assertion that

she was a pillion passenger was false. The way

His Honour directed the jury could suggest that if

she were a passenger in some other position on the

bike other than a pillion passenger at the rear,

then she had made a material false statement and

would not have been entitled to compensation.	The
jury's question was deflected from the real

Downey 13 4/3/94

question, "Who was controlling the thing when it

ran off the road?"

It is in that context, Your Honours, that it

is very important - if I can take Your Honours back

to page - - -

DAWSON J: That really was a red herring. What she told the

insurance company was that she was a pillion

passenger and that was the false statement that was

alleged.

MR HIDDEN:	Yes, but what did it mean?
DAWSON J:	The learned judge tells us what it means; what

the dictionary says it means.

MR HIDDEN:  With respect, Your Honour, relevantly what it

meant was, "I was not in control of thing.	I
wasn't riding it.	I wasn't driving it when it went
off the road."

DAWSON J: That is no part of the definition.

MR HIDDEN:	It was the way the case was run.
DAWSON J:	It may have been but the judge puts it right in the last direction he gives.

MR HIDDEN: But, Your Honours, with respect, the case did

not really turn on where she was sitting on the

bike.

DAWSON J:  No, it turned on whether she was a pillion

passenger or not. It was said in the letter of

claim to the insurance office that she was a

passenger and then the statement of claim, which

was subsequently delivered, asserts that she was a

pillion passenger, and that is the false statement

that was alleged against her.	Now, either it was
false or it was not.

MR HIDDEN:  But it was only false, for the purposes of this

case, if by it - - -

DAWSON J:  I suppose a pillion passenger, in some

circumstances, can control a bike in - - -

MR HIDDEN:  The way His Honour directed the jury at the end,

it would not have mattered whether she was

controlling the bike or not provided she was not a

passenger of the -

DAWSON J:  And it did not.

MR HIDD~N: But, Your Honour, the way the case was

conducted, with respect, it did. That was the

Downey 14 4/3/94

vital question. "Who was controlling the thing

when it ran off the road?"

DAWSON J:  And it was left to the jury - it did not - and

His Honour was right.

MR HIDDEN:  With respect, Your Honour, the way His Honour

finally left - - -

DAWSON J:  We have got the point anyway.

MR HIDDEN:  May it please the Court. Those are our

submissions, if the Court pleases.

BRENNAN J: Yes, thank you. We need not trouble you,

Mr Keleman.

The applicant's reliance on the majority

judgments in Jamieson v The Queen (1993) 67 ALJR

793 is misconceived. It is one thing to hold that

a pleading delivered in litigation should not, per
se, be treated for the purposes of the criminal

law as containing a representation of fact on the

part of the party delivering the pleading. It is

another thing to hold that no demands made in or

for the purposes of litigation should be so

treated. Jamieson gives no support to the latter

proposition: see, for example, per Justices Deane

and Dawson at page 795. We do not think that, on

the facts of this case, the submission based on

Jamieson's case has sufficient prospects of success

to justify the grant of special leave.

The submission based on the Listening Devices

Act 1984 (N.S.W.) does not enjoy sufficient

prospects of success to justify the grant of

special leave.

There is no substance in the submission based

on the direction given to the jury in answer to the
question as to the person in control of the motor

cycle. Accordingly, special leave will be refused.

AT 12.19 PM THE MATTER WAS ADJOURNED SINE DIE

Downey 15 4/3/94