Ferguson v The Queen [2011] HCATrans 62

[2011] HCATrans 62

[2011] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M103 of 2009

B e t w e e n -

IAN NORMAN ERIC FERGUSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2011, AT 10.26 AM

Copyright in the High Court of Australia

MR C. MARSHALL:   If the Court pleases, I appear as the solicitor on the record for Mr Ferguson, the applicant.  (instructed by C Marshall & Associates)

MR J.D. McARDLE, QC:   I appear with my learned friend, MS S.B. McNICOL, for the respondent, if the Court pleases.  (instructed by Solicitor for Public Prosecutions)

HEYDON J:   You oppose this application for an adjournment?

MR McARDLE:   Your Honours, we are put in a very difficult position.  What we are hoping to do was to persuade the Court to have the matter determined on the papers.  Now, there are two affidavits in support of the application for the adjournment.  Yesterday’s one really would not allow anyone, it is submitted, to have any confidence that the situation was going to change between now and say, for example, the next special leave date.

HEYDON J:   Yes.

MR McARDLE:   Now, today’s affidavit I think is a little different insofar as there is some promise of funding, although we would say it is remote and if it was feasible it probably would have been attended to before today.

HEYDON J:   Just for the sake of formal rectitude, I should ask, Mr Marshall, you read, do you, the affidavit dated 9 March and the affidavit which was sworn on 11 March?

MR MARSHALL:   Yes, your Honour.

HEYDON J:   Yes, thank you.  Sorry, Mr McArdle, please continue.

MR McARDLE:   Thank you, your Honour.  So the other thing, your Honours, that we think we should point out to you, of course, is that these offences are said to have occurred almost 10 years ago.  The trial in question was heard in 2005, the appeal in I think 2008 or thereabouts; time is pretty much on the wing.  In any event, our primary submission was to invite the Court to order that the matter be determined on the papers.

HEYDON J:   Yes.  Mr Marshall, who is the solicitor for the applicant, seeks an adjournment of this special leave application.  The principal basis for the adjournment is that it is difficult to obtain the services of counsel for financial reasons and the affidavit reveals that there are some prospects of obtaining money by the measures it outlines.  Mr McArdle, strictly speaking, does not oppose the application.  He would wish it to be determined on the papers with only either the present members of the Bench or any other members of the Bench in future.  We think the contentions are sufficiently finely balanced to make it a case where oral argument would be of some assistance and, tempting though Mr McArdle’s proposal is, I am afraid it has to be rejected and accordingly, an adjournment will be granted.  Is there anything else?

MR McARDLE:   Your Honours, our preference would be of course to the next special leave day.

HEYDON J:   In Melbourne?

MR McARDLE:   Yes.

HEYDON J:   Yes, I am not sure when that is.

MR McARDLE:   Probably June.

HEYDON J:   We will indicate that the matter should be placed in the next special leave list to be heard in Melbourne.

MR McARDLE:   Thank you very much.  If the Court pleases.

MR MARSHALL:   If the Court pleases.

HEYDON J:   The Court will adjourn in order to reconstitute.

AT 10.30 AM THE MATTER WAS CONCLUDED