Duff v The Queen

[1999] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S145 of 1998

B e t w e e n -

JAMES WILLIAM DUFF

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 1999, AT 10.04 AM

Copyright in the High Court of Australia

MR R.F. GREENWOOD, QC:   May it please your Honours, I appear with my friend, MR W.C. BARBER, for the applicant.  (instructed by Baker Deane & Nutt)

MR T.L. BUDDIN, SC:   May it please the Court, I appear on behalf of the respondent, together with my learned friend, MR L.M. LAMPRATI.  (instructed by the Director of Public Prosecutions (New South Wales))

GUMMOW J:   Yes, Mr Greenwood.

MR GREENWOOD:   May it please the Court, the application for special leave was brought after a trial which we argued in the Court of Criminal Appeal miscarried for a number of reasons but, essentially, that which we wish to concentrate on here is that the whole of this case was left to the jury on the basis of their acceptance or otherwise of the fact that the conversation referred to in the papers between the applicant and police officer Chalmers was the key to the case.  That conversation if accepted as having taken place, as contended by Chalmers, contained a lie.  There was no proper direction as to the use to be made of that lie, if found, in such circumstances.  Of course, the text of the conversation was denied by the applicant and the matter went to the jury very centrally on the question of whether or not the conversation took place.

HAYNE J:   That was the central issue at trial, was it not, it was said or not said?

MR GREENWOOD:   Yes.  It is implicit in the judgments of their Honours Sperling J and Greg James J in the Court of Appeal that rule 4 be applied, and they refused leave to appeal - Sperling J at page 5 of his judgment and Greg James J at page 3 of his.  The leave of the Court, of course, applying rule 4 of the Criminal Practice Rules will only be granted in New South Wales if an actual miscarriage can be shown.

KIRBY J:   How can you explain the fact that the issue of the unfairness discretion was raised specifically in the written submissions, 135, and yet no request was made to specifically consider the matter again?

MR GREENWOOD:   I am sorry, I do not quite follow.

KIRBY J:   First of all, the issue was certainly raised at 135 in the written submissions, was it not?

MR GREENWOOD:   Yes.

KIRBY J:   That was put to his Honour.

MR GREENWOOD:   The unfairness discretion?

KIRBY J:   Yes.

MR GREENWOOD:   That is a separate question.

KIRBY J:   Are you dealing with the rule 4 issue?

MR GREENWOOD:   I am dealing with rule 4 first, if I may, yes.

KIRBY J:   You are dealing with the validity of rule 4.  All right.

HAYNE J:   And, in effect, in relation to whether an Edwards direction should have been given?

MR GREENWOOD:   Yes.

KIRBY J:   How long has rule 4 been around?  It is a fairly ancient rule.

MR GREENWOOD:   It came and went and then came back again – 1954.

GUMMOW J:   The answer is:  nearly 50 years.

HAYNE J:   It may be a lively question whether it does anything more than state the common law, but here we are.  That is the Victorian in me coming out, is it not?

MR GREENWOOD:   That is an attenuate question, yes.  I am sure that will become ‑ ‑ ‑

KIRBY J:   What happens in Queensland?  Is there a rule like that?

MR GREENWOOD:   In the other jurisdictions where there is no such thing as a rule 4, it is very much…..in practice.

KIRBY J:   But it must obviously be relevant that counsel at a trial does not raise a point and then that an application is made to raise it on appeal for the first time.

MR GREENWOOD:   Yes, it is relevant.

KIRBY J:   So that throughout Australia that would be a relevant consideration in Courts of Criminal Appeal.

MR GREENWOOD:   Yes, which is then dealt with in various ways on a case by case basis.

KIRBY J:   Anyway, I diverted you, so you go back to what you want to say.

MR GREENWOOD:   Yes, thank you.  The cases lately provided contain relevant discussions as to the distinction between a matter of practice and procedure on the one hand and a matter of substance on the other.  The distinction was helpfully discussed – and I will not go through this in detail – by Mr Justice Williams in Maxwell v Murphy 96 CLR 266, et cetera, in the context of a statute of limitation provision. The right to enforce a cause of action, sometimes called an accrued claim, is an existing substantive right. We say that an existing substantive right ‑ ‑ ‑

GUMMOW J:   What does Maxwell v Murphy have to say that is relevant here?

MR GREENWOOD:   A general statement of the nature of a substantive right and the character thereof.

GUMMOW J:   But that is in the context of limitation statutes.

MR GREENWOOD:   Yes, the statute of limitation provision.  The question arising in the statute of limitation cases is to whether or not the question is procedural and therefore retrospectivity can apply.

GUMMOW J:   Yes, that is right, but why is that translated here?

MR GREENWOOD:   It is the same situation.  We say that the right of appeal to a State court is a substantive right.  What the rule does under its ability to regulate as to matters of practice and procedure is to diminish that right, undermine that right, and turn it from a right to appeal into an audience to apply for leave to appeal.

HAYNE J:   Assume that to be so, what follows from it?

MR GREENWOOD:   What follows from it is that the regulation is beyond power.

KIRBY J:   I am surprised that you have done it this way because that would be a matter that would come - if you do not have a substantive issue, this is not an appropriate vehicle to test the validity of rule 4.  It is just not an appropriate vehicle unless you have a point of substance.  We would not entertain an attack on rule 4 unless behind the attack on rule 4 is a point of substance, so I am surprised that you have not followed what you did in your written submissions and dealt with your point of substance first and then said, “And in any case, they’ve misused the procedural power to try to cut down a statutory right to appeal”.

MR GREENWOOD:   Yes.

KIRBY J:   So, I think we understand your attack on rule 4, but can we get to the point of substance?

MR GREENWOOD:   Yes, certainly. 

KIRBY J:   I suppose your point is Judge Hosking did not expressly refer to the unfairness discretion?

MR GREENWOOD:   That is right.

KIRBY J:   And it is purported to be overcome by the fact that he is a very experienced trial judge, as undoubtedly he is, but, if that formula is adopted, then every experienced trial judge gets a special advantage in appellate courts and those who are inexperienced, whoever they may be, are down the gurgler.

MR GREENWOOD:   That is right, yes.  I made comment in my reply to that contention that what it comes to is to say, and we do say, it is just not good enough to respond by contention that a trial judge must have exercised a discretion when obviously, on the face of the record, that is just not so.  Mr Justice Sully in the appeal court said that it is at least clear that his Honour saw himself as exercising both the section 90 discretion and the other statutory discretions and, with the greatest respect to his Honour, overlooks that his Honour the trial judge had clearly expressed the view immediately before delivering the ruling ‑ ‑ ‑

GUMMOW J:   Am I right in thinking section 424A had nothing to do with it?

MR GREENWOOD:   No, section 424A did have something to do with it in so far as we say that the fact that the legislature had by the time of the trial enacted 424A, it was a factor to be fairly taken into account.  That is the section, of course, which requires a certain procedure and renders inadmissible completely an oral statement denied as to having been made by an accused person when he returns to the police station in these sorts of similar circumstances ‑ ‑ ‑

KIRBY J:   But it was not in force at the time.

MR GREENWOOD:   Yes, it was.  It was ‑ ‑ ‑

KIRBY J:   But it was not applicable to this trial?

MR GREENWOOD:   But it was not applicable because what they did in enacting 424A, which is quite sensible, of course, is to say that it does not apply in matters before a certain time.

KIRBY J:   You say, taken with the developments of the common law in this Court and with the expression that the section reflects in the Parliament, it indicates that a lot of care has to be taken in the admission of this sort of evidence and that a lot of attention has to be paid, even by experienced trial judges, to whether it would be unfair in the circumstances to allow it in?

MR GREENWOOD:   Exactly.

HAYNE J:   But where was said to lie the unfairness?  What was said to be unfair in this case?

MR GREENWOOD:   In this case the same unfairness that the legislature itself has very directly hit at and destroyed forever, and that is the admission into evidence of a conversation alleged between a police officer and a suspect person with no other witnesses present, for example, which then is put, and it must be put if it is to be admissible at all, to the accused person in a recorded interview and if he denies having uttered those words then it is just inadmissible.

HAYNE J:   So, the unfairness is an unfairness about use, not an unfairness about the circumstances in which it was made?  That seemed to be the burden of what you just said.  Have I misunderstood it?

MR GREENWOOD:   No, you have not misunderstood me, your Honour.  What I am saying is that it ‑ ‑ ‑

HAYNE J:   But then how does that sit with section 90?  Section 90 unfairness relevantly, as I understand it, is unfairness having regard to the circumstances in which the admission was made - not unfair to use, but unfairness about procurement, if you like?

MR GREENWOOD:   Yes, procurement.  That is what I was hoping I was saying:  procurement in circumstances not of getting it out of the person but procurement or bringing it into existence on an occasion when an accused person is on his own only in the presence of a police officer.

HAYNE J:   But 424A applies to an admission made utterly voluntarily by an accused who gets into the police car, blurts the story out, still cannot use it, as I understand it.

MR GREENWOOD:   That is right.

HAYNE J:   Then 424A bites.

MR GREENWOOD:   That is right.

HAYNE J:   Section 90 is concerned with a different subject matter, is it not, the unfairness constituted by trickery by ‑ ‑ ‑

KIRBY J:   Misuse of occasion.  “Is there anything you’d like to tell me?”  “Fair cop, Guv”, and all that sort of thing.

MR GREENWOOD:   Yes, it deals with “Fair cop, Guv” but it uses the plain English word “fairness”.

HAYNE J:   “But Mr Galbally told me never to sign anything”.

MR GREENWOOD:   What we are saying about fairness is ‑ ‑ ‑

GUMMOW J:   It is not just that, is it?

MR GREENWOOD:   No, not just that, that is right.

GUMMOW J:   Yes, we have to look at circumstances.

MR GREENWOOD:   Yes.  So, the circumstances in which this alleged admission was made were circumstances that the legislature had by the time of this trial said cannot be admitted, full stop.  Now, what we are saying is that the legislature has intervened in that very direct way because of unfairness in admitting that very type of statement and that at least the accused in this trial had a reasonable expectation that a discretion would be addressed and exercised under section 90.

KIRBY J:   You say he had an entitlement in law to have the judge consider it.  It was raised in the written submissions, he had the entitlement to have on the record the judge’s consideration of it and his rejection or his exercise of discretion, and he did not get any of it and the only explanation given is, “Oh, well, the judge must have done it because he’s a very experienced judge”.

MR GREENWOOD:   Yes, your Honour.

GUMMOW J:   Another explanation is that counsel appearing for the accused did not want too much light thrown on this particular area.

MR GREENWOOD:   No, I do not ‑ ‑ ‑

KIRBY J:   This would have been done in the absence of the jury, would it not?

MR GREENWOOD:   I do not accept that.

KIRBY J:   So that there is no disadvantage to the accused having this matter debated before the jury; it is a question of whether it gets to the jury.

MR GREENWOOD:   Yes, perhaps ‑ ‑ ‑

KIRBY J:   Is that correct or is it a matter for direction to the jury, or both?

MR GREENWOOD:   No, it is a matter determined in the absence of the jury.

KIRBY J:   Yes, so that this is not a case where he would not be wanting to focus attention on it in case that inflames the issue before the jury.

MR GREENWOOD:   Not at all.

GUMMOW J:   No, I was referring to what Justice Sperling, amongst others, said at page 114 of the application book.

MR GREENWOOD:   This is on the question of the redirection on lies?

GUMMOW J:   Yes.

HAYNE J:   Edwards.

MR GREENWOOD:   Yes, that is a separate question and in that regard there is a different consideration but, again, the request for redirection obviously takes place in the absence of the jury, so in that preliminary sense the same situation applies but what the observations below were from the judge’s appeal were, “Well, it’s quite understandable.  This was not the subject of a request for direction as to lies because the more often the question of lies was mentioned then the more it was highlighted”.  But, of course, in the end result, what happened was that the jury went away to make what it would of the fact of the lie once found and, as we point out, I hope clearly, in the written submissions, were never helped as to what consequences then followed.

KIRBY J:   Can you suggest why counsel at the trial would not have raised with the judge, if this was such an important matter to be the subject of a separate exercise of the judge’s discretion, why he did not raise this point in order to avoid the submissions we are now having to deal with?  Is there any reason?

MR GREENWOOD:   Whether he should have or ‑ ‑ ‑

KIRBY J:   Obviously, in your submission, he should have.  Now, does it indicate that it did not really loom very large in the way the trial was conducted that he did not say, “Your Honour has failed to consider the section 90 discretion”.

MR GREENWOOD:   No, section 90 was very heatedly debated.

KIRBY J:   Exactly, it was put up, but now you are complaining that the judge did not address himself to it.  Why was not his Honour helped to ensure that we would avoid this sort of submission now?

MR GREENWOOD:   He held that section 90 did not apply at all, it is suggested, because immediately before his gives his ruling he says, “This is not an admission, this does not come within a literal bull’s roar of being an admission”, and it has to be found to be an admission before section 90 can be applied.  So, in misleading himself to say an exculpatory lie is not an admission for the purposes of section 90, he thereby was led into the further error of never exercising the discretion which we say properly arose.  That is how it fits.

KIRBY J:   I follow.

MR GREENWOOD:   Your Honours, we have said that it is a matter of fundamental importance that a discretion properly appealed for, as we say this discretion was appealed for, should be either applied or not, otherwise the applicant is left completely in the dark as to whether an exercise against him, for example, is appealable or not, and in the circumstances of this case we say that it is clear on the face of the record that the discretion was never applied.  On the rule 4 point – I just notice I do not have long - the ‑ ‑ ‑

GUMMOW J:   Assume rule 4 were beyond the rule-making power.  It then is a question of why would not the ordinary common law, to use that expression, carry a similar effect, as it seems to in other States?  They seem to get by without rule 4.

MR GREENWOOD:   Because Mr Justice Greg James himself said in his judgment that of course there is the obstacle of rule 4.  It is not good enough just to show that there has been a technical error or an error in the course of the trial; you have to go this step further because of rule 4 and show a miscarriage because that is the criteria that we, the New South Wales court ‑ ‑ ‑

GUMMOW J:    Did anybody say in the Court of Criminal Appeal that rule 4 was invalid?

MR GREENWOOD:   No.

GUMMOW J:   Why should we embark on it without assistance of the view of the Court of Criminal Appeal?

MR GREENWOOD:   The New South Wales Court in Esposito has held that although section 5, the appeal section, creates substantive rights, that rule 4 ‑ ‑ ‑

GUMMOW J:   I am just asking you, how can this possibly be a convenient vehicle to consider such an important question, if it seems to be such, as to the validity of rule 4 when it was not raised in the court below?

MR GREENWOOD:   All we can say is that it was not, that Esposito ‑ ‑ ‑

GUMMOW J:   There seems to be no answer to that question.

KIRBY J:   Did Esposito decide the point and they were bound by Esposito?

MR GREENWOOD:   Yes.  The court there held – that is what I was just saying – that section 5 creates a substantive right, that is the right of appeal, however, went on to hold that rule 4 was a rule regulating practice and procedure.  The rule does not, they said, seek to divest persons who seek to invoke the jurisdiction of the court or undermine rights which they otherwise would have under section 5.  The rule merely imposes, they said, a procedural obstacle which the court may remove at will.

HAYNE J:   Who was saying this?

MR GREENWOOD:   That is the judgment in Esposito.

KIRBY J:   Is that the Full Court of the Court of Criminal Appeal?

MR GREENWOOD:   Yes.

GUMMOW J:    Was any attempt made to reopen that question?  Was any attempt made to reopen the correctness of Esposito?

MR GREENWOOD:   No.  Therefore, in Esposito the challenged failed.  We say that reasoning is flawed, the substantive right is of necessity

diminished by a requirement to seek leave.  A court can remove the obstacle ‑ ‑ ‑

GUMMOW J:   I think the light has gone on.

MR GREENWOOD:   Yes, it has.

KIRBY J:   You are not suffering from colour blindness, are you?

MR GREENWOOD:   No.

GUMMOW J:   Yes, Mr Buddin.

KIRBY J:   This argument about very experienced and less experienced trial judges is a bit thin, is it not?  I mean, that cannot be a proper principle.

MR BUDDIN:   I am not pressing that.

GUMMOW J:   Now, what is the answer to Mr Greenwood’s point that this went off the rails because of the trial judge’s misperception as to the nature of what was said as amounting to admissions or not?

MR BUDDIN:   The first thing that we would say in relation to that is that his Honour did not actually say in terms that he regarded this matter as not being an admission.  What my learned friend has done is seek to augment the reasons that appear in the judgment of Justice Sully by reference to tentative views that his Honour had preliminarily formed, but those preliminary views do not find their way into the judgment on this issue.  Therefore, it cannot be assumed that what went before was still in fact where his Honour was at.  It would be a sad day, in our submission, if judges were not entitled in the course of debate to express a tentative view and invite counsel’s views upon the matter, and it is our submission that as a result of the debate that took place before the judgment his Honour had been talked around to the position that it was in fact an admission.

KIRBY J:   Where do you get the best passage that indicates that he had been talked around?

MR BUDDIN:   Perhaps I can do this, to indicate that his Honour thought it important to incorporate in the transcript the written submissions that are advanced on behalf of the applicant.  The written submissions appear ‑ ‑ ‑

GUMMOW J:   That is what we have got annexed, is it?

MR BUDDIN:   Yes, they are pages 133, or thereabouts.  Contained within those written submissions ‑ ‑ ‑

GUMMOW J:   Where did his Honour say that these were, as it were, read into the record?

MR BUDDIN:   The actual judgment of his Honour is not separately ‑ ‑ ‑

GUMMOW J:   That is the problem.

MR BUDDIN:   Yes, but it is incorporated, as I understand it, in complete terms in Justice Sully’s judgment which appears at pages 87 and 88 of the application book.  When your Honours have gone to that page your Honours will see lines 19 and 20.  Do your Honours have that reference?

GUMMOW J:   Yes, I see, thank you.

KIRBY J:   But might that not just be, very properly, to protect the appellant in respect of any appeals?  I mean, you sometimes see judges say, “Well, I’m not going to deal with all of these things but I’ll incorporate the submissions notionally in my reasons just out of fairness to the person”.

MR BUDDIN:   It may be that his Honour had two things in mind:  that, and also that he had taken into account the matters properly raised.  That is an available inference and certainly the one that we invite your Honours to take on board, so it may be that what your Honour Justice Kirby has indicated is also the case.  But his Honour indicates that he realised that there were two matters that he was dealing with and over on page 88 his Honour says in the first complete paragraph – there is the reference to the “discretionary exclusion of the evidence”, that having been sought by the applicant.  His Honour refers to the nature of the discretion and then at the beginning of the first sentence of the next and the final paragraph is:

I can see no basis where it would be open to me in the responsible exercise of my discretion to exclude the conversation –

et cetera.  So, he specifically refers to the discretion that he was called on to exercise and it must have been by reference to the written submissions that had been prepared in which his Honour had gone to the trouble of having incorporated in the body of the judgment.

KIRBY J:   But the suggestion is that his Honour, in making that observation, was not contradicting the conclusion that the section 90 discretion did not arise at all.  If that is so, in so far as he was referring to discretion, he would not be referring to it.  Now, where is the best indication you can find that indicates that his Honour resiled from that and that therefore, when he made that reference on page 88, line 7, he was including the unfairness discretion in section 90?

MR BUDDIN:   In fact, his Honour vacillated on the question of whether it was an admission or not.

KIRBY J:   But is that not a serious matter then?  The accused was entitled to have, if manifest on the record that his Honour as to submissions had put and which were incorporated, gave consideration to the section 90 discretion that would have prevented, if successful, the material going before the jury.

MR BUDDIN:   But that was the issue his Honour was considering by reason of the fact that he has incorporated in the judgment.  It follows, inferentially, that his Honour must have turned his mind to it.  I mean, section 90 only applies if it is an admission.  Section 424A only applies if it is an admission.

HAYNE J:   Page 67C of the application book seems to be part of the transcript of discussion in the absence of the jury.  I do not think it is the whole.  At line 35 the judge asks, “Does section 90 apply?”.  Counsel for the accused says, “Yes”.  The Crown then seems to have five bob on every horse in the race but debate - at best you can tell, is not easy – seems to proceed through page 67D, 67E - - -

MR BUDDIN:   And F.

HAYNE J:   - - - to discussion on 67E about exclusion under 424A.  At 67F you get, after six pages of transcript are omitted – I do not know what is in those intervening six pages – reference to denial of “criminal conduct”.  It “is exculpatory”.

MR GREENWOOD:   I do not want to interrupt but 67F, line 45, is material.

HAYNE J:   Exactly, but I am referring to the fact that we are denied six pages of the transcript.   How you are meant to make a decision on a course of events at a trial when you lose six pages of the transcript I do not quite know, but there we are.

MR GREENWOOD:   Can I answer that?  Those six pages are taken up by the written submissions of Mr Barber which you do have.  They were the intervening pages, your Honour.

KIRBY J:   Page 133 to page 137.

GUMMOW J:   I do not know.  Page 87 starts at the end of a sentence.

MR BUDDIN:   But his Honour’s judgment seems to proceed upon the assumption that sections 90 and 424A applied.  If they did not apply, his Honour presumably would have said, “Neither section 90 nor section 424A apply.  That’s the end of it.  There is no separate matter for me to consider”.

KIRBY J:   Clearly, 424A did not in terms apply in law and therefore any discretion that he was exercising must have been a 90 discretion.  Is that your submission?

MR BUDDIN:   That is part of it, yes.  But whilst I am on 424 - - -

GUMMOW J:   Why was it not clear to everybody what was the operation of 424A?

HAYNE J:   I mean, at least counsel for the accused seems to say, at page 67F, line 37:

Your Honour has said your primary interest is fairness to the accused.

It is now said the judge did not have regard to considerations of fairness.  It seems to be a somewhat different view adopted at trial by trial counsel.

MR BUDDIN:   Well, definitely.  But can I just deal with one aspect of 424A, even though it was not in operation, but my learned friend puts it as being an important cloak.  His Honour did deal with an aspect of that in terms of the discretionary question that then remained, whatever its scope, and that was the consideration of 424A(2)(c), because my learned friend proceeds upon the assumption that 424A would necessarily, if the commencement of that section had been operative for the purpose of these proceedings, have dictated the exercise of the discretion in his favour.  That provision talks in terms of a reasonable excuse, and a reasonable excuse being the absence of a tape recorder is something that his Honour found would or may well, even though he did not have to consider it, be something that would not have disentitled the Crown to rely upon the material in any event.  So, it is an inappropriate assumption that my learned friend draws in relation to the operation of 424A, had it been in fact directly relevant.

They are the submissions in relation to that aspect of the matter.  The rule 4 point; do your Honours wish me to - - -

HAYNE J:   Just before you go to rule 4, was any submission put at trial concerning circumstances which it was said made the admission of this statement unfair other than the fact that it was not tape recorded?

MR BUDDIN:   Can I answer that, your Honour, by going to page 133 of the application book.

GUMMOW J:   That is the written submissions?

MR BUDDIN:   They are the written submissions.  With respect, bearing in mind the nature of the transcript, and that has to be the most reliable guide you can get as to what was in fact - - -

HAYNE J:   Do you say that those submissions constitute a submission or include a submission that there was any circumstance rendering admission unfair other than the fact of absence of tape recording?

MR BUDDIN:   No.  That is the effect of it.

GUMMOW J:   Now, rule 4.

MR BUDDIN:   Yes.  In relation to rule 4 - - -

KIRBY J:   I suppose your main point is if there is not substance in the application, this is not an appropriate vehicle and, in any case, if it is not raised and argued in the Court of Criminal Appeal, it is not an appropriate vehicle either because we do not have the benefit of their consideration of the matter.

MR BUDDIN:   In relation to rule 4?

KIRBY J:   Yes.

MR BUDDIN:   Yes, absolutely.  I mean, in effect, it is, ironically, another rule 4 point in a sense but one of real substance:  a failure to object at the appropriate time, namely, the Court of Criminal Appeal, there having been already a failure to object and in view of the fact, as my learned friend conceded, that there was a decision right in his path of Esposito.

The appropriate course, in our submission, particularly in view of the fact that my learned friend appeared in the court below, was for him to challenge Esposito full on.  There are other submissions that I can make in relation to - - -

GUMMOW J:   Well, that may be done in some other case.  If it is done, we will see what happens.

KIRBY J:   There may be a point in it.  I mean, I am not saying for my own part that there is no point in it.  It is a question of vehicle in my opinion.

MR BUDDIN:   Yes.  Well, we certainly make that submission, although we have some submissions in relation to the merits.  But that is the primary submission.

GUMMOW J:   The vehicle will have to arrive after it is started off properly in the court below.

HAYNE J:   That, no doubt, will invite attention to the old cases like GMH v Moularas in this Court and Reg v Clarke and Johnstone in Victoria and other such cases dealing with the position, absent an equivalent of rule 4.

MR BUDDIN:   As I understand it, rule 4 does not have an equivalent in other jurisdictions but - - -

GUMMOW J:   That is the point.

MR BUDDIN:   I understand, but, as I understand it, it is really reflective of the common law situation which obtains elsewhere.

KIRBY J:   Not entirely, because the question is:  is it procedural?  If it is not, then there is no business of judges making it to provide a barrier to the right which the Parliament has given to litigants to appeal as of right on questions of law.

MR BUDDIN:   What this Court has said and other intermediate appellate courts, including the Court of Criminal Appeal, is that it may be seen as a procedural obstacle but, of course, it is always subject to the question of whether or not there is a substantial miscarriage of justice.  In our submission, this case falls well short of satisfying that test.  In fact, it would be our submission – although I will not go to it – that this would be a case - even if there were imperfections where the proviso would apply, this was a very substantial Crown case.

GUMMOW J:   Yes, thank you, Mr Buddin.  Anything in reply?

MR GREENWOOD:   Just quickly to answer a question on the submission put by counsel below on section 90 and fairness, whether there was any complaint beyond than not being tape recorded.  In those written submissions there was an omission – it is pointed out at page 133 that notes of this conversation were taken not at the time but later, and throughout that submission there is an ongoing reference, we say, to fairness, inviting fairness.

On the other factual matter, at page 67F, we very heavily, of course, rely on line 45 where his Honour is saying that this is not an admission at all, it is a denial.

GUMMOW J:   Thank you, Mr Greenwood.

Having regard to the way the trial was conducted, the Court is of the view there is no reason to doubt the correctness of the decision of the Court of Criminal Appeal.  Further, this application is not an appropriate vehicle to raise the validity of rule 4 of the Rules of Court under the New South Wales Criminal Appeal Act 1912. That issue was not raised before the Court of Criminal Appeal and the matter is not otherwise suitable for a grant of special leave. Accordingly then, special leave is refused.

We will adjourn to reconstitute.

AT 10.43 AM THE MATTER WAS CONCLUDED