Dupas v The Queen
[2010] HCATrans 92
[2010] HCATrans 092
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M20 of 2010
B e t w e e n -
PETER NORRIS DUPAS
Appellant
and
THE QUEEN
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 15 APRIL 2010, AT 10.18 AM
Copyright in the High Court of Australia
MR C.B. BOYCE: If the Court pleases, I appear with my learned friend, MR L.C. CARTER, for the appellant. (instructed by Victorian Legal Aid (Criminal Law Section))
MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))
FRENCH CJ: Yes, Mr Boyce.
MR McARDLE: Your Honours, can I raise something first? A day or two ago we served and filed a summons and a short affidavit in support of an application for an abridgement of time concerning a notice of contention I understand that has come to the Court’s attention.
FRENCH CJ: Yes.
MR McARDLE: The position being this, that we think that the proper presentation of the argument from our point of view is that it would be necessary to challenge the finding of Justice Ashley and Justice Nettle that it was a singular or extreme case, preferring the view of Justice Weinberg, and that after some hesitation, and the fault is entirely mine as far as the delay is concerned, we thought it probably necessary to have a notice of contention filed, but we are out of time.
FRENCH CJ: Mr Boyce, is that opposed?
MR BOYCE: It is, your Honour. Your Honours, the respondent seeks to vitiate the conclusions made expressly by two members of the Court of Appeal, those two members of the court having subjected the evidence relied upon, in our submission, on the stay application and how that evidence related to the court or to the course of the trial to rigorous examination. The analysis performed by Justices Ashley and Nettle does not in terms, we would submit, appear to be rejected by Justice Weinberg, and such submission as is made in the respondent’s submission which encapsulates, as they would put it in their supporting affidavit, in essence what we are told what the respondent wants to say about this, do not, in our submission, reveal an arguable case.
We cannot say that we are taken completely by surprise, your Honours, as the respondent foreshadowed an argument of this type in the special leave documents. The material, as your Honours will be aware, that is exhibited to Mr Bentley’s affidavit, and was the material that was placed before their Honours on the hearing of this appeal, that is, the material and the evidence that relates to the pre‑trial publicity, is voluminous, and we did expect to be here, I might say, your Honours, to discuss principle. If the Court does grant the enlargement of time we would – for our friend to make submissions in support of his notice, we would seek leave to make submissions in reply to those submissions if need be perhaps in writing. If the Court pleases.
FRENCH CJ: Thank you, Mr Boyce. Yes, we will hear your argument on the proposed notice of contention and reserve on the summons. Yes, Mr Boyce.
MR BOYCE: If the Court pleases. Your Honours, in opening this appeal can I make the following remarks? Justices Nettle and Ashley in the court below concluded, as your Honours will no doubt be aware, that the present case is an extreme or singular case in the sense that despite lapse of time and no matter how careful and thorough may be the directions given to the jury there is, and for the foreseeable future will remain, a significant likelihood that any conviction will be affected by substantial prejudice and prejudgment.
By so concluding, your Honours, Justices Nettle and Ashley, in our submission, applied the language of a balance of persuasion obiter, albeit in R v Glennon (1992) 173 CLR 592, in particular the dicta of their Honours, Chief Justice Mason and Justice Toohey, at 605, and at 623 to 624 in the judgment of the group of Justices that are otherwise known as the dissentients in the case, Justices Deane, Gaudron and McHugh.
Justice Ashley below considered, in our submission, that he had power to order a permanent stay but did not consider himself bound to do so by application, it would seem to us, of the dicta of Justice Brennan, agreed in by Justice Dawson in Glennon. Justice Ashley permitted himself to draw back from the position of a permanent stay and order in the alternative a stay until further order. Justice Nettle found that he did not have power, in our submission, to order a stay of any variety.
In reaching that position, he adopted the remarks of Justice Brennan, with Justice Dawson’s agreement in Glennon’s Case, namely, that the community cannot afford to acknowledge that the media has the capacity so to render an accused unable to be tried. The social imperative in his Honour’s view and in Justice Brennan’s view and, by implication, the view of Justice Dawson, that an accused be brought to trial surmounts the consideration that leaves the appellant exposed to unfairness of prejudice and prejudgment. Such unfairness, in their Honours’ view, is rationalised upon the basis that unfairness occasioned by circumstances outside the Court’s control does not make the trial a source of unfairness.
FRENCH CJ: What was the function of the Court of Appeal in this case? Was this review of discretion for error of law or was it determining whether there had been a miscarriage of justice? I mean, that is a question which is raised, is it not, in the respondent’s submissions?
MR BOYCE: Yes, both, your Honours. Justice Ashley below considered the question whether the determination of the issue was to be found upon error, principles, otherwise known as House principles, or whether the inquiry should move further into the question of whether there had been a miscarriage of justice. Can I take your Honours to Justice Ashley’s judgment at paragraph 157 of the judgment of the court below, and it is found at appeal book 4 at page 1790, wherein his Honour states that:
In all, it appears that if an exercise of the discretion was shown to be infected by House v The King error, it would carry an applicant a long way in showing that a miscarriage of justice occurred – although the presence of the one might not mandate a conclusion that the other was present. On the other hand, absence of demonstrated error in the exercise of the discretion might not mean, as the trial unfolded, that the subject matter of the exercise of discretion had not caused a miscarriage. Yet again, if the exercise of the discretion was not shown to have been infected by error – this necessarily focusing upon the time of its exercise – it might tend to show, notwithstanding the different temporal viewpoints – the improbability that refusal to stay the proceeding had in fact brought about a miscarriage.
The submission, in answer to your Honour the learned presiding Judge’s question is that both questions are engaged and both questions were engaged and determined by the court below.
FRENCH CJ: And properly engaged, in your submission?
MR BOYCE: Yes, and both determined to have been satisfied, in other words, that there was error, there had been a miscarriage of justice, the question being in the – that is by majority - I am sorry – Justice Ashley’s determination that there had been error and a miscarriage of justice, in Justice Nettle’s view that there had been House error, there had been no miscarriage of justice because in his Honour’s view his Honour considered himself bereft of power or unable to exercise the power that could be called in aid of the granting of a stay. Of course, Justice Weinberg found there had neither been error in the terms of discretionary or House error, nor had there been a miscarriage of justice.
HAYNE J: If the trial judge were not to be shown to have committed an error within House v The King what species of miscarriage would you say remains open for consideration? What is the ground, if you like, of the miscarriage if the hypothesis is the judge’s conclusion refusing the application for stay is not attended by error?
The species spoken about in the authorities, in particular in Glennon, before the Court of Criminal Appeal was that of the verdict being unsafe and unsatisfactory, the verdict being impermissibly tainted by a risk of impartiality. Those sentiments find their expression in Glennon itself in this Court, as we apprehend it, in the judgment of what I have termed the dissentients, Justices Deane, Gaudron and McHugh, at 623 of Glennon to 624. Can I read from the bottom, your Honours, of 623?
Nonetheless, one cannot exclude, as a matter of law, the possibility that an “extreme” or “singular” case might arise in which the effect of a sustained media campaign of vilification and prejudgment is such that, notwithstanding lapse of time and careful and thorough directions of a trial judge, any conviction would be unsafe and unsatisfactory by reason of a significant and unacceptable likelihood that it would be vitiated by impermissible prejudice and prejudgment. In such a case, a permanent stay may be granted.
CRENNAN J: I think also you might look at what is said by the Chief Justice and Justice Toohey at the bottom of page 605 and the top of page 606 where they are addressing what a Court of Criminal Appeal might do.
MR BOYCE: Yes. Wherein their Honours state:
On the other hand, a permanent stay will only be ordered in an extreme case and there must be a fundamental defect “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that that pre‑trial publicity has deprived the accused of a fair trail. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trail.
Your Honours, that puts me in mind also, if I may be permitted to do so in answering Justice Hayne’s question, of the dicta that one finds spread throughout the stay cases in general and perhaps particularly beginning with Justice Wilson’s judgment in Barton wherein, again the characterisation of the error, or the miscarriage, is also described as a fundamental defect that would go to the root of the proceedings. Those are two means by which the courts have, in our submission, chosen to characterise the nature of the error or of the miscarriage absent, it would be our submission, a necessary finding of House or discretionary error on the part of the trial judge in ruling against a stay.
The third member of the court below, of course, was Justice Weinberg, who would have refused the application for a stay, although the basis for this does not seem to us, with respect, to be abundantly clear, although it may, of course, be clear to others and we have missed it. His Honour did not expressly disavow power. Nevertheless, it would be our submission upon a fair reading of the judgment of his Honour below that three aspects of his Honour’s judgment – and I will summarise them – might be said fairly to call into question or to doubt the power or capacity of a trial court to order that there be a permanent stay in the instance of prejudicial media publicity that attaches to an accused pre‑trial.
I will just summarise them if I may, your Honours. Firstly, his Honour offered apparent approval of the remarks of Justice Brennan that appear in Jago v The District Court of New South Wales (1989) 168 CLR 23. One finds his Honour’s apparent approval of those remarks at paragraphs 224 to 230 of the judgment below at appeal book 1815 to 1816 of appeal book 4, and concludes those remarks with the observation, in our respectful submission, that those sentiments – at paragraph 230 of appeal book 1816:
These days . . . would generally be regarded as mainstream.
Secondly, his Honour placed heavy emphasis on what has been described as the axiom that has it – the juries have the capacity in all cases to follow necessarily a judge’s direction to put out of their minds prejudicial material. His Honour lays heavy emphasis upon – as would no doubt be proper – upon that principle, in particular at paragraphs 204 to 205 of the judgment below at appeal book 1809 to 1810, and paragraphs 214 to 218 at appeal book 1811 to 1813 of the judgment below.
Thirdly, in our respectful submission, the third basis upon which his Honour decided the case was insistence that the acceptance of the appellant’s argument would perhaps lead – and these are my words, your Honours, not his Honour’s words – perhaps absurd conclusions whereby ubiquitous and notorious crimes would remain immune from prosecution, and one finds the remarks of his Honour, without wishing to be facetious, at paragraph 251 at appeal book 1822, the references to “Jack the Ripper”:
Charles Manson, Ronald Biggs, or dare I say, Osama Bin Laden –
So it is submitted the appellant’s argument ‑ ‑ ‑
BELL J: Mr Boyce, just before you move from an analysis of Justice Weinberg’s judgment, can I take up a matter with you which it seems to me his Honour touches on particularly at paragraph 238, appeal book 1818, when he refers to the necessity of the jury becoming aware “of an accused’s previous history, including prior convictions.”
MR BOYCE: Yes.
BELL J: In this case, as I understand it, the critical Crown evidence was that of the witness, Mr Fraser. Mr Fraser’s evidence in material respects was the subject of challenge. In light of that, it might be thought inevitable that at the least the jury would have come to learn, as part of the Crown case, Mr Fraser’s account of the appellant’s discussion with him of whether or not he was at risk of being charged with the murder of the deceased, Maher, whether the Crown at such a trial would lead similar fact evidence and the like. That seemed to me to be at the heart of the discussion that the witness, Fraser, gave evidence about.
MR BOYCE: Yes.
BELL J: If one accepts that, does that lead to some modification of a view that the prejudice that the appellant faced was entirely based on pre‑trial publicity as opposed to the difficulty that counsel always face in a trial when material that might be characterised as highly prejudicial of necessity emerges as part of the Crown case admissible at their trial?
MR BOYCE: I will try and answer your Honour’s question in this way, hopefully helpfully. The position that the appellant in this Court on power contends for is not an absolute position. In other words, it is always a matter of degree in the singular case that is before the Court. We take his Honour – I will get to answering the specifics, your Honour, if I may – we take his Honour Justice Weinberg at 238 to be referring to those cases predominantly that come before the courts wherein matters or evidence of a prejudicial nature might be led by the Crown that is said to be probative of guilt – is relative and probative of guilt in itself.
That, of course, was not the case in this instance in the sense that it was not led as similar fact evidence. That is not to say, your Honour, that once the conversation was contested that its terms perhaps did not need to be placed in their context in order to meet that challenge. The gravamen or the fundamental basis of his Honour Justice Ashley’s and, by agreement, Justice Nettle’s reasoning in their conclusion that there had been the substantial risk that I opened with was not simply that the jury would have come to know the criminal history consisting at least in the two prior murders of the appellant. That was part of it. It was not the necessary part of it that, in our respectful submission, tipped this case over the line.
What tipped this case over the line, in our respectful submission, was their Honours’ characterisation, analysis and finding in respect of what I might describe as the welter of pre‑trial material that their Honours had before them and went through and that the connections that were made between that material and the three significant aspects of the evidence that was adduced in the case against the – so, yes, your Honour is correct. Obviously enough, the position that the appellant presents is not absolute but it is one that is – I am sorry, your Honour, is about to ask another question.
BELL J: It comes back to this, I think, and it really, referring to Justice Weinberg’s judgment, begins at paragraph 234 on appeal book 1817 where his Honour observes that the applicant and his counsel faced real difficulties in the present case. Coming back to this central conversation with Mr Fraser, in light of the circumstance that it was challenged in material respects, it would seem on a view to be almost inevitable that the Crown was entitled to get the full terms of it in order that its context could be assessed. This is quite independently of any suggestion of similar fact evidence, that not being a basis upon which the Crown proceeded.
MR BOYCE: Yes.
BELL J: But one is then looking at a trial at which the jury inevitably were to learn that this appellant was in custody, that while in custody he had, it was alleged, expressed concerns about being charged with the murder of one woman in circumstances where there was a discussion about the availability to the Crown of similar fact evidence in support of that count and it is in that context that he is alleged to have made the particular admission, with respect, to this offence. That, so it seems to me, if that is accepted, Mr Boyce, is a basis for Justice Weinberg’s doubts as to this case falling into the extreme category, in terms of prejudice.
MR BOYCE: Yes, and I ‑ ‑ ‑
CRENNAN J: It happened, did it not, that the jury was told at the outset about the two prior convictions in relation to the murder of two other women, without opposition?
MR BOYCE: Yes, without ‑ ‑ ‑
FRENCH CJ: It was a pre‑empanelment advice.
CRENNAN J: Without any opposition.
MR BOYCE: That is true. The circumstances were, as we apprehended, that the appellant’s counsel made application for its permanent stay on the basis that his client – it was notorious that his client would be known for having committed the earlier two – this is part of the earlier two murders, and when that was combined with – he was judged, in effect, by the media to be guilty of this particular case. In combination, that tipped it into an extreme or singular case.
So yes, once – to answer your Honour Justice Crennan’s point, if I may – if counsel was of that view at that particular time that it was notorious, one would have thought counsel was bound to seek that direction, that if there had been no such direction, and it was a fact – or if there was a perceptible risk that the jury did know of the prior two murders – one might have thought that counsel would have been derelict in his duty not to seek that direction.
The fact is the direction was given, but it is not the whole story. As it was perceived by Justice Ashley as well, that the position in which the defence was placed by reference to the earlier evidence was an aspect of why Justice Ashley found this to be a single or extreme case, that is to say, defence counsel could not leave it alone. It had to, in presenting a defence, challenge Fraser, challenge Burman, challenge Weller, challenge Melnick, in respect of Burman, Weller, Melnick on the basis of displacement, had to do it, otherwise, there was no basis to challenge.
But defence counsel could not go the whole way. Defence counsel, as Justice Ashley properly recognised, could not really put the argument because the more he did so, the more he created the very prejudice against which he was seeking to protect his client. That is what, as we understand it, Justice Nettle in his agreement meant when they concluded that counsel, as part of their finding, was placed in an impossible position. As to Fraser, Justice Ashley remarks, he could perhaps have gone down the route of cross‑examining about the fact that there were some factual dissimilarities between the nature of the killing of this particular deceased as opposed to the earlier two.
I do not want to describe the details of them, but there are differences, but to have done so would have, as Justice Ashley properly recognises, in our submission, merely created a rod for the counsel’s own back, and it was this invidious position that counsel was placed in that was part of the reason.
BELL J: But these are invidious positions that it is not uncommon for defence counsel to be placed in.
MR BOYCE: No.
BELL J: Is not one significant point this? If it were no more than or if it were entirely a matter of a welter of publicity in the media which had led to the forensic decision that counsel made to have the trial judge tell the jury about the previous convictions, that might be one thing, but one is looking here, at least in relation to evidence emerging concerning the death of the person Maher and the suggestion that that in itself might be subject to evidence of a similar fact character, that this was a prejudice or difficulty that the appellant was going to face even if no newspaper ever published a thing about his history.
MR BOYCE: Well, firstly, your Honour, similar fact is not in the field of play ‑ ‑ ‑
BELL J: Mr Boyce, I understand that. My impression of the evidence of Mr Fraser, a former solicitor, was that his discussion with the appellant included a discussion touching on similar fact evidence being available to the Crown in support of the murder charge.
MR BOYCE: I apologise, your Honour, I misunderstood your Honour, sorry. Can I answer your Honour this way. We apprehend the strength of arguments contrary to our position that would say, let us look at this one aspect of the case, there is nothing particularly necessarily novel about it – invidious positions or difficult positions in which counsel were placed in respect of evidence that makes it into the trial that is prejudicial. There are cases of pre‑trial publicity simpliciter, if I can use that description, where there is no prospect of the evidence being adduced in the trial bringing it in, or the jury being reliant upon it. You might say, well, that is fairly – not fairly common or fairly standard – but the courts see that. I understand that, your Honour.
The question is in this case, and what we submit tipped the balance for their Honours below – and I am directly on the facts now on the conclusions – was that it included both at least – it was both – there was no case really quite like this one. Now, it is unprecedented, that is the point that our friend makes, and Justice Ashley says, well, in answer to that – and we adopt Justice Nettle’s agreement, his analysis – it is one thing to say that the principle exists if the power exists. If you cannot find a case to fit the bill, then you might be caused to doubt the power. The power does exist, at least in Justice Ashley’s assessment, he could think – and assuming power, neither could Justice Nettle – think of a case.
BELL J: Well, Tuckiar v The King is the case that is quoted in support of the proposition that there is a class of cases where the power exists.
MR BOYCE: Well, Tuckiar v The King was a decision to order a retrial after – Justice Ashley and Justice Nettle, after rigorous and painstaking analysis of both of the material, the way in which – and through the course of the trial, found that the power, if it existed –Justice Nettle is engaged in this case. Now, we adopt the reasoning of Justice Nettle and Justice Ashley in that assessment and we answer the questions that have fallen from your Honours Justice Bell and Justice Crennan in respect of this matter by submitting that, as perhaps as in any circumstantial case, let us not look at one particular aspect in isolation and say, well, there is nothing particularly novel or strange about that, we must look at it all together, because it is only when and in particular when the nature of the material is understood – as we would submit Justice Ashley did in his synopsis at paragraph 77 at appeal book 1758, the 18 points, over to appeal book 1761 – examined and analysed, and when they are viewed by his Honours in the context of his Honour’s analysis of every relevant, we would submit, aspect of the progress of the trial.
Then finally, after having examined the principles, to come to the conclusion at paragraphs 178 and 179 at appeal book 1797 and following, that this was an extreme case based upon, at paragraph 180, what his Honour calls the concatenation of features which occurred as the trial unfolded, we submit that there is no basis to conclude that it was not open to their Honours to come to that view. In particular, in view of their Honours – or, in particular, Justice Ashley’s close analysis of perhaps one of the most fundamental principles that was going to go the other way, namely, that discussed at paragraph 166 at appeal book 1794, the force of the submission which has it that the juries can and will always be able to follow and apply a judge’s direction to put the materials, such as occurred in this case, out of its mind. His Honour says, if I may be permitted to quote:
One may accept those assumptions unreservedly, as I do, without discounting the prospect – considered in the cold light of the particular circumstances of a particular matter – that the jury’s task was an impossible one. In Taylor, [the English case] it was held that such a situation had arisen; likewise in McCann. The order made in Tuckiar proceeded from a conclusion that a fair re‑trial could not be had. In General Television Corporation, this Court refused to interfere with the conclusion of the trial judge that a fair trial would be impossible if the ‘Underbelly’ program was permitted to be televised at the same time as the trial was proceeding. See also observations as to the difficulties for judges – let alone jurors – which are posed by press agitation –
His Honour makes reference to the dicta of Justice Frankfurter in the Pennekamp Case, Viscount Dilhorne in Attorney-General v BBC, the extra‑judicial remarks of Justice Cardozo in his 1921 address and, in particular, his Honour calls in aid Gilbert’s Case, the very case upon which so much reliance is placed by our friends and was placed by Justice Weinberg, at paragraph 13, your Honours will see, at footnote 105 – I have not got it in my authorities but if your Honours will bear with me – where their Honours Chief Justice Gleeson and Justice Gummow remarked that:
The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.
It does not appear in our submissions, but we also call in aid this. Of course so much reliance is placed upon Justice McHugh’s decision in Gilbert, of course Gilbert a very different context from the current case, but we do pause to note that Justice McHugh was a member of the dissentients in Glennon, that is to say, whatever might be thought - and indeed there would no doubt be a great deal of strength in the principle the jury’s system is based – a large part upon the system that juries will follow directions. His Honour also, it would seem, as appears from Glennon, countenanced the extreme case where the direction could not do the work it was intended to do.
Now, I have moved off power - I had to get there eventually, I suppose - but if I may come back to the argument that I was presenting. The appellant relies upon the conclusion of Justices Nettle and Ashley and presents the subject matter of his appeal as to the question of power. If there is power, and the conclusions of Justices Nettle and Ashley stand, the submission that we make is that there has been error, and based upon those conclusions, the appellant should have his stay and implicit or expressly made as part of that submission is the submission that Justice Nettle erred by adopting the remarks of Justice Brennan, agreed in by Justice Dawson in Glennon.
Now, the argument we make in our submissions, if I could just summarise it briefly, is this. It appears to us, your Honours, that since Barton v The Queen (1980) 147 CLR 23 that there has grown up in the dicta of this Court concerning the law of stays imposed in the instance of an abuse of process, there grew up a difference of opinion that is material to the determination of this appeal.
First, there is the dicta one finds expressed by Justice Brennan in cases such as is adopted in the present case and finds expression in Jago, Williams v Spautz (1991) 174 CLR 509 at 531 and Dietrich v The Queen (1992) 177 CLR 292 at 322 to 325. That mirrors his Honour’s remarks in Glennon that are applied here by Justice Nettle, remarks that hold that so long as:
Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness –
and there is no capacity to order a stay. As we apprehend it, your Honours, there is an opposing view, or it would appear to us a different view that is expressed in the dicta of this Court in those cases following Barton, which proposes a broader notion of abuse of process, if that term is adequate to describe what their Honours are speaking of, that would allow for power to order a stay in the instance of unfairness that is calculated to amount to a miscarriage of justice, no matter the source of that unfairness, save in the instance of accused who is denied legal representation by legal aid - Dietrich at 298 to 299 by Chief Justice Mason and Justice McHugh, at 326 to 329 and 332 as per Justice Deane, at 357 to 358 per Justice Toohey and at 362 to 365 as per Justice Gaudron, or the case of prosecutorial delay, the case of Jago.
I will not bore your Honours with the page references but one finds the relevant sentiments in the decisions of Justices Mason, Deane, Toohey and Gaudron and that is to say, as we apprehend it, the stay is countenanced in those instances of unfairness, whether or not the party’s attitude to the litigation, or the relevant party’s attitude to the litigation is tainted by some form of inappropriate view.
GUMMOW J: That is not this case?
MR BOYCE: No, it is not this case. The form of unfairness brought into play by the proponents, we submit, of this broader conception of abuse is unfairness adjudged by contemporary community values adopted by what is known as or what finds expression as right thinking people. The basis or rationale for this broader conception of fairness lies, it would appear to us, in our submission, in the fundamental importance of the fact that trials be fair – expressed sometimes as the right to a fair trial or perhaps, more correctly, a right not to be tried unfairly. The importance of that right is broader than the – or the rationale for it is broader than the mere forensic protection it provides to a particular accused and extends to providing, in our submission, the criminal justice system with its basic notion of public legitimacy.
Each side in the debate that we characterise exists, or have identified, accuses the other of contending, it would seem to us, assist that their system is calculated to corrode the legitimacy of the criminal justice system. Your Honours will, of course, know that Justice Brennan spoke of trials becoming adventitious, decisions as to unfairness being unprincipled or idiosyncratic. His Honour feared that trial by media would replace or supplant trial according to law. Perhaps those last sentiments find their most forceful expression in Glennon itself at pages 613 to 614. Could I take the Court to those, approximately two‑thirds of the way down the page:
Administration of the criminal law cannot be made hostage to conduct amounting to contempt of court, even if the contempt be flagrant. If it were otherwise, the perpetrators of crimes which shock the public conscience, such as those charged in Murphy v The Queen, would oftentimes go untried and unpunished, for pre‑trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime. Yet it would undermine the criminal law’s protection of society and its members to refuse to allow the law to take its ordinary course in these cases. The administration of criminal justice by the courts, which proceeds inexorably to its conclusion in each case, would be adventitious if trial could be halted by a punishable contempt.
GUMMOW J: We can read all this, you know.
MR BOYCE: Yes.
GUMMOW J: Now, where does this notion of extreme case come from and what are the criteria which establish it? Are they evidentiary criteria?
MR BOYCE: The terminology “extreme or singular case” finds its origin, as we apprehend it, in the judgment of the dissentients in Glennon, that is, the judgment of their Honours.
GUMMOW J: I am just looking at paragraph 182 of Justice Ashley, for example. What is the basis for saying it was “impossible for the jury to put pre‑trial publicity out of mind”?
MR BOYCE: I am sorry, your Honour, I did not quite catch ‑ ‑ ‑
GUMMOW J: What is the basis for saying that it was “impossible for the jury to put the pre‑trial publicity out of mind”, at the end of the first sentence in paragraph 182 of Justice Ashley’s reasons?
MR BOYCE: The basis for it is is his Honour’s assessment of the ‑ ‑ ‑
GUMMOW J: Assessing by what criteria? No one was ever going to ask these jurors.
MR BOYCE: No. Well, can I answer your Honour this way? The language of the balance of Chief Justice Mason and Justice Toohey and the dissentients in Glennon is language of risk. There is no need, according to the implementation of that dicta, for it to be established that in fact – by asking the jury, that is to say did they find it – or a finding in fact that the jury were influenced in this way. Can I take your Honours ‑ ‑ ‑
FRENCH CJ: Is the notion of the extreme or singular case referred to in Glennon anything more than a case in which there is irremediable prejudice that cannot be cured by appropriate directions to the jury?
MR BOYCE: Yes.
GUMMOW J: How does one find out there is that degree of prejudice?
MR BOYCE: One looks at the evidence that is tendered before the court. One looks at the course of the trial. One looks at the language that is to be applied as set out by the five Justices that permitted of power in Glennon, namely, whether there was inappropriate risk ‑ ‑ ‑
FRENCH CJ: This is a judgment to be made by a trial judge at the beginning of a trial, confronted with an application for a stay, so there is a prospective judgment, there is risk assessment involved, is there not?
MR BOYCE: Yes.
FRENCH CJ: It is not in the position of a Court of Appeal looking back at the course of the trial?
MR BOYCE: It is both. Inherent in that must be the approach by means of House error and miscarriage of justice.
HAYNE J: A necessary step in the inquiry must be a close identification of the prejudice or prejudgment in issue, must it not? It is not enough to simply apply the term, “There is a risk of prejudice, or there is a risk of prejudgment”. You have to be more precise, have you not, about what is the prejudice? What issue or issues are going to be pre‑judged?
MR BOYCE: Precisely.
HAYNE J: Where do we find any analysis of that in relation to the facts of this case when particular regard is paid to the considerations mentioned by Justice Bell in her questions? This jury on the Crown case would have made known to them that the appellant was in custody, he was in custody for the murder of a woman, that there was a question about his being charged with the murder of other women, that there was a question about whether similar fact evidence would be led and in this context it was alleged and disputed that the accused man confessed to the particular murder. So what exactly is the prejudice or issue on which there is prejudgment which was at stake in this case?
MR BOYCE: The issue that the jury needed to decide, that is to say, whether they were to accept Mr Fraser’s evidence in Justice Ashley’s judgment, interconnected with what his Honour found was, in effect, a public indictment by the media and by senior police through the media of the accused of the present murder. It was the fact that on the three most important limbs of the case the evidence adduced in the trial harkened back or harked back, to use his Honour’s terminology, to that pervasive, as his Honour would find it, public indictment. That was what was extreme or singular about this case.
HAYNE J: What is it then that enables the judge say whether it is possible, likely, impossible that the jury will try the case on the evidence that is led in court and not otherwise?
MR BOYCE: I take your Honour to be referring to the need for the trial judge or the judge making a risk assessment. The criteria that is applied do not appear to be a list of rules in the sense of boxes to tick. They must be a judgment made in good conscience by the trial judge but on the material that he or she has before him or her knowledgeable of the fundamental prescript that trials be fair, as it is understood, or that there is a right to a fair trial, and this is the central or fundamental prescript that in an exceptional case the line is crossed. I do not think I can do any better to answer your Honour’s question.
HAYNE J: Well, I understand that.
GUMMOW J: There are all sorts of assumptions here that people in vast numbers read newspapers. I doubt if that is any longer true.
MR BOYCE: No, they look at the internet as well.
GUMMOW J: Exactly.
MR BOYCE: That was featured fairly heavily in this case as well, as his Honour found below.
BELL J: The unfairness of this trial, it is said, is that the jury almost inevitably, having regard to the character of the material, not only in the newspapers but on the internet, would have had access to it, or at least some of their members would have, and that they would not have been capable of complying with the direction to try the case on the evidence.
Now, a question arises as to the basis of the assumption that a jury aware of prejudicial material, either because it emerges inadvertently in the course of the trial or because they become aware of it through accessing the internet or the like, are not capable of complying with the direction – the directions the trial judge gives. There has been a degree of research conducted on the behaviour of juries and I am not sure that it supports a view that juries are likely to be so influenced by publicity as to be incapable of trying a case fairly.
MR BOYCE: I think it is in New Zealand that there is some ‑ ‑ ‑
BELL J: And in New South Wales.
MR BOYCE: In New South Wales too. One reads trial judges – as I think this trial judge said in their rulings – of it being their experience that juries approach these questions properly and in good conscience and are able to – the authorities are replete, obviously enough, with sentiments of that sort. His Honour in this particular case was not in any way being critical of the jury. What his Honour was doing was making a risk assessment in accordance with the test that had been laid down, as broad as it is, by the five members, amounting to a balance of persuasion, so his Honour found in Glennon.
BELL J: If one comes back to Glennon, the indictment contained 17 counts, and the jury acquitted of 12. That says something, perhaps, about the discernment of the jury in that case. It is the underlying assumption, Mr Boyce, that we cannot rely on juries to reason in the way we expect judges to do, which is to put out of consideration material that is not in evidence.
MR BOYCE: It is an underlying assumption, but it is not an absolute assumption. If it was an absolute assumption obviously there would be no need for the power, and this is the point that Justice Ashley ‑ ‑ ‑
BELL J: If one accepts the power as it was formulated in Jago by the then Chief Justice, one can accept the formulation. The question is whether a case involving a welter of highly prejudicial publicity concerning an accused’s prior convictions leads to the conclusion that the trial is unfair, that it will be unfair by reason of prejudgment.
MR BOYCE: Yes, that is so. It seems to us, your Honours, that the novel aspect of this case that impressed, amongst other things, their Honours Justice Nettle and Justice Ashley was that from the time of the appellant’s conviction of the first murder back in August 2000 there had been a sustained – and this appears really in his Honour’s synopsis at paragraph 77, and one does not need to go much further than that – media campaign that he was, in fact, publicly indicted for the current – at a time when the evidence to present the appellant upon that charge sufficient was not existent.
Now, the – and that this was – and then that that occurred at the time of August 2000 in respect of the first conviction. It occurred again in 2004 upon the second conviction. It effectively occurred again throughout the coronial inquest into the deceased in the present matter and that by the time of the trial there had been, so their Honours Justice Nettle and Justice Ashley found, effectively public indictment finding conviction, as it were, once Mr Fraser’s statement came out. I do not want to sound facetious in any way, shape or form, but I would say this advisedly, it was like manna from heaven for the media. If your Honours go through the material, Mr Fraser’s statement provides a great deal of comment – I do not know how the media got it – by several journalists, and by this time the case had been made in the media that he was guilty of the present case.
That is what is novel, firstly, about this case. It is not just, well, on X day in August 2000 the appellant was convicted of X murder, the judge heard a plea, at that plea the prosecution put prior convictions that then dies down and goes away and then four years later there is another hearing. This was not that sort of case and this is what it, in our submission, impressed their Honours Justice Nettle and Justice Ashley. That is the first, perhaps, novel aspect of it. The second one was that in their Honours’ view – as I have said and I will not say it again – that the evidence adduced during the trial called up necessarily that prejudgment in the media.
FRENCH CJ: If you had to encapsulate the error which you say emerges from the judgments of the Court of Appeal is that the effect that it is tantamount to saying in practical consequence that however grievous the prejudice occasioned by pre-trial media publicity there is not really going to be an occasion to order a permanent stay.
MR BOYCE: I am sorry, I did not ‑ ‑ ‑
FRENCH CJ: I am just wondering whether that is implicit in 5.24, you see, of your submissions:
There is no reason in principle or practice why the category of case warranting the imposition of a stay ought not include an instance of prejudicial pre-trial media publicity.
Is your complaint really that, under the approach taken by the Court of Appeal, there can really never be such a case?
MR BOYCE: Sorry, your Honour?
FRENCH CJ: Below that we get into the merits of their particular decision.
MR BOYCE: I am sorry, your Honour. This submission is perhaps clumsily made, but it is made to attack or to call into question Justice Nettle’s conclusion that ‑ ‑ ‑
CRENNAN J: You are advancing a proposition, are you not, that the greater the notoriety of the accused, the less the jury can be relied upon to give a true verdict, according to the evidence. Is that not what you are saying?
MR BOYCE: Not in an absolute sense, no, your Honours, because this case was not decided on the basis of Mr Dupas’ notoriety. It was not decided on that pure basis, that he was notorious, so there could not be a trial. It was decided upon the notoriety in conjunction with the nature of the evidence that was led in the way in which the jury must have decided the issues in respect of that evidence, calling into question that notoriety.
This is not a case of notoriety simpliciter, if I can put it that way. The contention that is put against us by our friends, and expressly by Justice Weinberg, that if our argument is accepted, Osama bin Laden will walk free. He will not ever be able to be tried. Of course, his Honour said that without wishing to be facetious, but that is not our position.
CRENNAN J: But the focus of the argument for the ruling by the trial judge was on the pre-trial publicity, was it not?
MR BOYCE: Yes.
CRENNAN J: His Honour ruled – I think his ruling speaks for itself and can be found at 429 and 430 of the appeal book. His Honour was not persuaded that there could not be a fair trial, and he gave the following reasons, commencing at the bottom of 429, going over to 430, and his Honour referred in that context to the jury in a good deal of detail, and his Honour also referred to the availability of material on the internet and the fact that that would be governed by a direction.
MR BOYCE: I am sorry, your Honour.
CRENNAN J: I am just concerned to try and identify where is the error in principle in the trial judge’s ruling having regard to the arguments advanced before him in support of the permanent stay which focused on the pre‑trial publicity?
MR BOYCE: The argument is summarised by – the argument in support of the – the submissions in support of the application as summarised by his Honour Justice Ashley at appeal book 1761 – the error identified by his Honour Justice Ashley in the ruling is that which appears at paragraphs 88 and 89 of his Honour’s judgment at appeal book 1765, in particular, paragraph 89.
HEYDON J: Do we know whether that submission was put to Justice Cummins? There is no need to take time on it.
MR BOYCE: I am sorry.
HEYDON J: If you could just carry on with your plan.
MR BOYCE: My learned friend tells me it is – the argument, to the extent that it is put, your Honours, it is put at 209 to 210. That is the extent to which it is put. I concede, your Honours, it is not put perhaps as clearly as ‑ ‑ ‑
HEYDON J: I do not see how you can criticise a judge for not taking into account something that the judge was not asked to take into account when you were dealing with a discretionary decision where there is a whole range of possibly relevant matters of fact. Obviously, there are some central things that would have to be taken into account whether they were mentioned or not, but this is a specific type of argument.
MR BOYCE: Yes. Your Honour, I cannot do any better. That passage speaks for itself. That is about as close as it gets.
HAYNE J: Mr Boyce, does your argument come to this? There was much earlier publicity attributing guilt of this crime and describing the circumstances of other crimes of which it was either alleged or proved this appellant to be guilty. Step two, the evidence at this trial necessarily revived that publicity in the mind of the jury.
MR BOYCE: Yes.
HAYNE J: Step three, it matters not whether it could not be or, you would say, there was a sufficient risk that what was said out of court, particularly as to his guilt of other crimes and of this crime, could not be dismissed from consideration by the jury in deciding the question of guilt or innocence of this crime. Is that the essence of the argument?
MR BOYCE: Yes, your Honour, the essence of the argument. Thank you, your Honour. That is the argument on the conclusions, yes. I was making submissions about power, of course. To an extent the submissions of - the conclusions bring that question into play and your Honours will of course know that the position we present on power is perhaps lacking a contradictor because our friends say in their submission that power does exist by reference to the unanimous position of their Honours in Glennon.
Of course, the necessary conclusion of that would be if the conclusions of their Honours Justice Nettle and Justice Ashley remain in place and there was a unanimous exposition as to power in Glennon, again there ought to have been a stay ordered, but I do not want to waste the Court’s time dilating upon power, but I do not ‑ ‑ ‑
GUMMOW J: This expression “extreme case” which you hang your submissions on the way, seems to have first appeared in this Court in Jago at page 34 in 168 CLR and to have been derived in Jago, if you look at footnote 75, from a case of Cooney 31 A Crim R 256 at 263 to 264. Are you familiar with that?
MR BOYCE: Page 65 of Jago, your Honour?
GUMMOW J: Page 34 of Jago in Chief Justice Mason’s reasons, line 3, you see?
MR BOYCE: Yes.
GUMMOW J: Then there is a citation of Cooney. Are you familiar with Cooney?
MR BOYCE: No, I am not, your Honour.
GUMMOW J: These labels find their way into law reports and they become somehow a species of jurisprudence.
MR BOYCE: The label “extreme” and/or “singular” was ‑ ‑ ‑
CRENNAN J: It was used in Glennon, but it derived from those epithets being used by the Court of Criminal Appeal in Victoria, and that is made clear on page 623 of the report. Justice McGarvie had referred to the case as an “extreme and exceptional” case and Justice Nathan had referred to it as a “singular” case.
MR BOYCE: Yes.
HAYNE J: They may be no more than expressions explaining the fact that this power has not hitherto been engaged.
GUMMOW J: Yes, the manifestation of the maxim never say never, I suppose.
HAYNE J: That is right.
MR BOYCE: What one cannot help in this ‑ ‑ ‑
CRENNAN J: I think that is also confirmed in the DPP’s position which is set out at about point 4 of page 624 of the report of Glennon where the Crown refrain from putting the higher proposition that there could never be a justification for a permanent stay.
MR BOYCE: Yes. Your Honours, the sort of epithets that are used to – one cannot pass over, perhaps, this debate concerning the form of words or epithets that are used to describe ‑ ‑ ‑
HAYNE J: You cannot argue from the epithet to the content of the principle, Mr Boyce. The content of the principle is there and it may or may not be aptly captured by the tag and hence concern to attempt to articulate what I understood to be the essence of the chain of argument that you made in this case. If that leads to the conclusion a stay should have been ordered, maybe it is right to say that that result is singular, extreme or some other description, but that is a description of the consequence of a chain of argument.
MR BOYCE: That is right. I thought that the way in which the type of case is encapsulated by these words is rather eloquently expressed by his Honour Justice Heydon in the Jeffery & Katauskas Case at paragraph 58:
Words like “unfair”, “unjust”, “oppressive”, “seriously and unfairly burdensome, prejudicial or damaging”, “productive of serious and unjustified trouble and harassment” and “bring the administration of justice into disrepute among right‑thinking people” are not words of exact meaning. Nor are the words “abuse of process” themselves.
GUMMOW J: What is that citation?
MR BOYCE: Sorry, your Honour, Jeffery & Katauskas (2009) 239 CLR 75 at 105, paragraph 58.
HEYDON J: We must not weary the other members of the Court by citing dissenting judgments to them.
MR BOYCE: Your Honour dissented on the facts, I thought. I thought your Honours were rather united on the principle, but I might be wrong.
FRENCH CJ: The point is well made, I think, is it not, in the judgment of Justice Brennan in Glennon to which I referred you earlier at 616 where he contrasts the term “extreme case” with the ground which he describes as:
better founded on principle and more realistic in practice – that the trial of the applicant, provided it was as fair as the Court could make it, would produce no miscarriage of justice.
MR BOYCE: Yes.
FRENCH CJ: I thought you accepted that that is really when you talked of extreme and singular, or when that was spoken of, that is what that really collapsed into.
MR BOYCE: Yes. Now, the real submission that we make on power is that the conception of power that we contend for and articulate in our submissions relies, of course, on the broader notion of abuse of process that we submit enjoys the support of the Justices that your Honours were taken to in cases like Dietrich and Jago and so on.
That fits in or coheres with the principle that has found expression in this Court since Walton v Gardiner (1993) 177 CLR 378, since Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256, R v Edwards (2009) 255 ALR 339, and the Jeffery & Katauskas Case that I have just referred to, in essence, the position since Walton wherein this Court has adopted Lord Diplock’s test in the case of Hunterv Chief Constable of the West Midlands Police [1982] AC 529 at 536 noted as being the correct test and that is the test that finds expression in our ‑ ‑ ‑
GUMMOW J: The phrases “exceptional case” and “rare case” in Cooney were used in the Queensland Court of Criminal Appeal, I think it then was - in Cooney (1987) 31 A Crim R 256, 263 and 264 talking about misconduct by the prosecuting authority where there is a constitutional abuse, if you like, by the other branch of government. Once you get out of that area it seems to me you are in difficulties of finding any clear footing for this doctrine other than some perception which again raises a constitutional question as to the alleged incapacities of juries, where the Constitution assumes the contrary, ie section 80.
MR BOYCE: The extreme or singular case adopted by the dissentients in Glennon were not, as we apprehended, used by Chief Justice Mason or Toohey J in Glennon. Their Honours stated:
On the other hand, a permanent stay will only be ordered in an extreme case and there must be a fundamental defect “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre‑trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.
We do not take their Honours in that expression of the principle to be hanging the operation of the principle upon the epithet “extreme or singular”, but to be describing, however it might be described, as best they can the basic and operable power that is brought to bear in the case of pre‑trial publicity wherein there is a serious risk that it might deprive the accused of a fair trial. Our submission is that however it be described, the Court of Appeal below is correct to recognise that there is a balance of persuasion in Glennon that recognises the existence of that power.
FRENCH CJ: Does it come to anything more than this – I am repeating what I thought you might have accepted before – that what we are concerned about in the prospective judgment being made by the trial judge is whether there is an unavoidable and unacceptable risk of a miscarriage of justice if the trial proceeds.
MR BOYCE: Yes.
CRENNAN J: Which cannot be cured by direction.
MR BOYCE: Yes. I suppose that is why, rather than being determinative or descriptive of the power, the epithets “extreme or singular” are in some way perhaps descriptive of the fact that it will be an exceptional or a rare case. It is not, as we apprehend it, descriptive of the substance of the power that is being engaged. That is all I wish to say on power. I have been drawn during my submissions on power into the facts and properly so. Would your Honours hear my learned friend on his notice of contention and allow me leave to reply, because I ‑ ‑ ‑
FRENCH CJ: If it be necessary, we would hear you on that in reply. That is on the contention question.
MR BOYCE: Yes.
FRENCH CJ: Are they your submissions on the appeal?
MR BOYCE: Those are the submissions, thank you.
FRENCH CJ: The Court will adjourn briefly to consider what course it should take.
AT 11:48AM SHORT ADJOURNMENT
UPON RESUMING AT 11.48 AM:
FRENCH CJ: Mr Boyce, is there anything further that you would wish to say in response to the Crown’s written submissions on the appeal?
MR BOYCE: Yes. Without repeating what I have already submitted, your Honours, we adopt what is in our written reply that was filed, in those submissions at paragraphs 1 to 16, in particular, that deal with the arguments of fact or conclusion that the respondents make. We adopt those only in addition to those submissions. The only expansion that needs to be made is to submit the following. As we apprehend the respondent’s argument on the facts in addition to those arguments that we deal with in the reply, they submit, firstly, that the media material that was before their Honours did not constitute “any revelation of guilt emanating from an informed or authoritative source”. We submit in answer to that – that particular submission appears at paragraph 5.3(f) of their written submissions:
this case and the antecedent media publicity did not involve any revelation of guilt emanating from an informed or authoritative source.
We submit in answer to that that short of a judgment of the court that the appellant’s guilt had been, as it were, found in the media material. He had effectively been indicted by the reporting of opinion from senior police officers and counsel assisting at the coronial inquiry, that he was the prime suspect and that there was, at least insofar as the senior detectives were concerned, a strong circumstantial case. We submit that those findings or the nature of that material is reflected in the judge’s findings below that we summarise in our reply at footnote 5 wherein we make reference to the paragraphs of the judgment below by reference to the judgment of Justice Ashley. The second argument that we apprehend the respondent to make is such as is made in their 5.45 of their written submissions which is that:
Whilst it is true to say that there was a good deal of adverse pre‑trial publicity surrounding the Appellant, significant strands of this prejudicial material were admissible in the trial –
That submission is expanded upon. We simply make this submission in answer to that contention: firstly, that if the material was admitted it was not probative in any sense of guilt; and, secondly, the fact that it was admitted was in our submission the reason – and I will not go over them – why Justices Nettle and Ashley reached the conclusion they did. The third argument is expressed, as we apprehend it, at paragraph 5.61. As to the main threads of the Crown case the only exhibit tendered by the prosecution which had any relationship to pre‑trial publicity was exhibit L. In fact, the defence tendered exhibit 8 which contains some reference to pre‑trial publicity. Apart from those exhibits no other exhibit tendered at trial provided any detail as to pre‑trial publicity.
Our argument in response to that is to submit that it is wrong to narrow the analysis of prejudice engaged in by the court below to simply documentary evidence tendered. I have dealt secondly with at least the implied forensic argument that is expressed there. Those are the arguments we make in response to that. Of course the evidence, such as it was, that brought into play or hearkened back, to use the words of the court below, to the welter of pre‑trial publicity was all of the main threads of the Crown case: the evidence of Melnick, Burman, Weller and Fraser. The last argument that we apprehend they make is at paragraph 5.62 wherein they submit:
As to the finding by Ashley JA that it was “impossible for the jury to put the pre‑trial publicity out of mind”, no evidence as to any details of the pre‑trial publicity was placed before the jury by the prosecution apart from Exhibit L.
We submit in answer to that that that analysis is artificial. It overlooks the interconnection analysis that was engaged in by the court below, to repeat those submissions. The respondents go on to submit:
Nor was there any foundation for the conclusion that the jury was in some way influenced by the mass media indictment as “the murderer”, for at best, the jury was aware that he had been identified in one press article as a “suspect”.
I have already made the submissions, your Honours, that the analysis that the court must make in applying the relevant power is one of risk and there
is no need to prove that a jury or juror was in some way influenced. The rest of the submissions that we make in contradistinction to what is put by the respondent appear, in our respectful submission, adequately in our reply that we have filed and we rely upon them. Those are the only additional oral submissions we would make contrary to what the respondent has put.
FRENCH CJ: Thank you, Mr Boyce. Mr McArdle, we will not need to trouble you.
MR McARDLE: If the court pleases.
FRENCH CJ: The Court is unanimously of the view that the appeal should be dismissed. Reasons will be published later. The orders of the Court are:
1.The appeal is dismissed.
2.The respondent’s summons is dismissed.
The Court will adjourn until 2.00 pm.
AT 12.08 PM THE MATTER WAS ADJOURNED
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