Fitzgerald v The Queen; Sumner v The Queen

[2014] HCATrans 48

[2014] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A28 of 2013

B e t w e e n -

DANIEL GLENN FITZGERALD

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A30 of 2013

B e t w e e n -

GRANT ANDREW SUMNER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 MARCH 2014, AT 11.23 AM

Copyright in the High Court of Australia

____________________

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friend, MR A.L. TOKLEY, SC, for the applicant Fitzgerald.  (instructed by Iles Selley Lawyers)

MS M.E. SHAW, QC:   May it please the Court, I appear with MR C.S.L. ABBOTT and MS M.E. GILBERT for the applicant Sumner.  (instructed by Gilbert & Partners)

MR J.P. PEARCE, QC:   May it please the Court, I appear with my learned friend, MR T.J. ELLISON, for the respondent.  (instructed by Director of Public Prosecutions (SA))

BELL J:   Yes, Mr Bennett.

MR BENNETT:   If your Honours please.  Your Honours, I will simply adopt the arguments of my learned friend, Ms Shaw, in relation to the aggravation argument.  I will deal solely with the issues concerning Mr Fitzgerald.

BELL J:   Yes.

MR BENNETT: Your Honour, the starting point is section 353 of the Criminal Law Consolidation Act 1935 (SA), which is at page 13 of the first tab in our volume of authorities, and your Honour will see it is a familiar provision:

The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence –

This is a case where we say that there is a hypothesis consistent with innocence, a reasonable hypothesis consistent with innocence.  This Court is in as good a position as the jury because there is no credit issue in relation to it.  The reasonable hypothesis depends on uncontradicted evidence.

Now, your Honour, there are seven short points I wish to make about the evidence against Mr Fitzgerald.  The first is that there is no evidence whatsoever that he was present at the crime scene, or even that he was ever on the subject premises, apart from one small DNA sample from a didgeridoo.  There is no evidence of motive, no evidence of close association with others in the group, just that he was an acquaintance of one of them, no record of interview, no evidence of the age of the relevant DNA.

BELL J:   Can I just query this?  In relation to the didgeridoo, whilst there was some staining that might have been blood, it was not established to be human blood, is that so?

MR BENNETT:   Yes, your Honour.

BELL J:   Was there any evidence upon which the jury might have found that the didgeridoo was, in fact, used in the incident?

MR BENNETT:   No, your Honour – well, when your Honour says “used in the incident”, there was a suggestion that one of the women there used it as a sort of defence ‑ ‑ ‑

BELL J:   Defensively.

MR BENNETT:   Defensively, that it was taken from her, but apart from that, no.  The second point is that the sample was small, could have contained DNA from two or three people.  Other samples on the didgeridoo, of which there were a large number, were samples in relation to which Mr Fitzgerald was excluded and even the subject sample could have come from two or three people and the other part was not the deceased or Mr Karpany or Mr Sumner.

BELL J:   Mr Bennett, we do not need to hear you further on this aspect.  As I understand it, you are content to rest on Ms Shaw’s submissions relating to the further aspects of your application.

MR BENNETT:   Yes, your Honour.  The only matter is – and I should sit down when told what your Honour just told me, but there is a particular matter in the judgment of the Court of Criminal Appeal which can be directly contradicted which your Honours may find of assistance, but only if your Honours wish me to.

BELL J:   By all means.

MR BENNETT:   Yes.  Your Honour, that is at page 282, and your Honours will see that they criticise the reasonableness of the

hypothesis consistent with innocence on which we rely.  They say in paragraph 105, they list a series of events which they say is an unlikely series.  But that unlikely series pre‑supposes that the secondary transfer took place at the time of the offence on the second visit to the house.  It is more likely that it occurred on the first visit.  The court dismisses that in one sentence at the end of paragraph 104 where they say:

There was no suggestion that, during his attendance at Hogarth Road –

i.e. on the first occasion –

he [Mr Sumner] had any contact with the didgeridoo.

We simply add “or any suggestion that he did not”.  We know that.  The didgeridoo was in the kitchen, adjacent to a door leading to the passageway.  It was standing up.  We know that Mr Sumner, on his own evidence, engaged in shadow boxing with numerous people in the kitchen.  There is evidence that he pushed the deceased into a wall making a hole in the wall in the kitchen – presumably a gyprock, or fibro wall. 

So the scene in the kitchen must have been very chaotic, on any view of the matter.  There is a large object – a didgeridoo – standing up.  One could easily either move it out of the way or touch it accidently or perhaps use it in helping one to stand up.  It would be the most natural thing in the world.  One would not expect either Mr Sumner, or any of the other witnesses, to remember that contact.  So the statement that there is no suggestion that he had any contact with the didgeridoo has to be read in the light of that.  We would submit the most likely hypothesis consistent with innocence is that that is when it happened.  If your Honours please.

BELL J:   Thank you, Mr Bennett.  I think the convenient course would be if we hear from you now, Ms Shaw, and then, Mr Pearce, from you in relation to both applications.  Yes, thank you, Ms Shaw.

MS SHAW:   If the Court pleases.  The applicant, Sumner, submits that if the verdict is vitiated or is a miscarriage in relation to Fitzgerald that necessarily potentially infects the validity of the verdict in relation to the applicant, Sumner.  Insofar as the arguments that ‑ ‑ ‑

GAGELER J:   Sorry, what was that – that it necessarily potentially infects?

MS SHAW:   Yes ‑ ‑ ‑

GAGELER J:   All right.

MS SHAW:   ‑ ‑ ‑ in that if the jury have arrived at verdicts against Mr Fitzgerald on a basis where the finding, eventual finding, might be that the verdict is unsafe then it is not known where the jury’s error occurred, and that same error might also apply to Mr Sumner, bearing in mind that this was a case based on a joint enterprise.  The two matters that I ‑ ‑ ‑

BELL J:   Ms Shaw, if Mr Fitzgerald were to succeed on a contention that the evidence was incapable of establishing his presence at the scene, as seems to be at the heart of Mr Bennett’s submission, that would have no bearing on the sufficiency of the evidence in relation to your client.

MS SHAW:   I agree that it does not affect the sufficiency of the evidence.  Your Honours, can I come then to the matters that the applicant raises?

BELL J:   Yes, yes, do.

MS SHAW: First of all, the applicant submits that it is a question warranting the grant of special leave as to whether section 23(1) of the Criminal Law Consolidation Act 1935 (SA) creates two offences, namely, an aggravated offence and a basic offence, or only one offence, namely, a basic offence with circumstances of aggravation. That, of course, is the subject of count 2, and that provision, section 23(1) and, more importantly, section 5AA, has wide‑ranging application, potentially in relation to other provisions under the Criminal Law Consolidation Act (SA).

The second question that the applicant submits in relation to Mr Sumner is worthy of a grant of special leave, and why this is a suitable vehicle to consider the interpretation, or the construction, of section 23(1) is that the applicant submits that he was deprived of his right to a fair trial in that the learned trial judge’s directions in relation to the verdict – alternative verdict of manslaughter ‑ were erroneous and, at the very least, confusing, so that the applicant ‑ ‑ ‑

BELL J: Can I just stop you for a moment, Ms Shaw? Before we get to your complaint respecting manslaughter, just going back to the question of the construction of the offence created by section 23(1) of the Act, if one looks at the analysis that Justice Blue adopted, which was to conclude that one offence is created, his Honour went on at application book 291 to 292, paragraph 145 and following, to explain why it was that that had not constituted a relevant error in the conduct of the trial. Effectively, his Honour’s point was the way the indictment was framed, aggravated in the statement of the offence, was surplusage. Rhetorically, his Honour asks, “So what?”.

MS SHAW:   Yes.  Your Honour, what his Honour does, we submit with respect, that was in error, was to focus on the indictment itself, the instrument of the charge itself, and not consider the way in which the trial judge directed the jury and, indeed, the way in which the verdict was eventually taken.  The way in which the trial judge directed the jury at page 159 of the appeal book was that in relation to the offence effectively they had to make a choice.  His Honour said at line 11:

If you find either of the accused guilty of that charge, you will then be asked this question:  ‘As two aggravating features are alleged, and only one has to be proved, you must state after giving your verdict, if it is one of guilty, which of the aggravating factors you find have been established’ and your answer will be either ‘the offensive weapon’ or ‘in company with other people’, or you may say ‘both’.  You cannot say ‘none’ –

Your Honours, and that, indeed, is what happened when the verdict was taken at page 224 of the appeal book, and in relation to Mr Sumner the jury chose that here the count associated with being committed with people at 225.

BELL J:   So this is the complaint, that in the way the matter was left as an aggravated offence, the basic offence was not left for the jury’s consideration.  That is the complaint.  It is not that your client was convicted of an offence unknown to law.  That is not really the point you are advancing?

MS SHAW:   That is so.

BELL J:   Yes, I understand.  Well, now how in a real sense, in the facts of this case, was the decision not to leave the basic offence productive of a miscarriage?

MS SHAW:   For two reasons.  Firstly, that as a matter of procedural irregularity, to direct the jury that there is a choice between finding aggravation or none, in our respectful submission, is to effectively leave to the jury a duplicitous count and require the jury to choose which of the two offences are made out on the reasoning that this is an element of the offence. 

In other words, the approach of his Honour is consistent with what the majority said, not the decision of Justice Blue.  In other words, if the jury were properly directed and this was not treated in the way that it was, the jury would have been first asked whether or not the basic offence was committed, and the miscarriage here in addition is that the jury were not directed at any stage as to the meaning of “in company”.

They were simply told that that was the circumstance of aggravation, and where “in company” as a circumstance of aggravation affects the maximum penalty it is a critical matter that the jury should be directed as to the circumstances in which behaviour could be construed as “in company”  This was particular important here in that on the prosecution case with one of the witnesses, and they were all – the four witnesses we were conflicting, Ms Wanganeen says that although she saw the applicant come through the door she did not see him again after that. 

So, there needed to be a direction as to the meaning of “in company”.  In our respectful submission, in the circumstances of this particular case, it was productive of a miscarriage of process and the directions were flawed in that they omitted any direction as to the meaning of “in company”, and that was the effect of – that the verdict the jury returned.  In that sense, this was a failure to direct on an element of the offence in the way that it was left because it was a choice and a failure to direct, in our respectful submission, is a process miscarriage.  In our respectful submission, too, the importance of that direction must be looked at in relation to the principal charge – namely, that this was based on joint enterprise.  If the jury found “in company” not having a direction as to what it meant, then it was a short step to arrive at joint enterprise.

BELL J:   But the jury were directed with respect to joint criminal enterprise in a manner with which I understand you do not take any issue.

MS SHAW:   Your Honours, there is certainly issue taken in relation to the failure to give a specific direction as to the element of participation.  But the more important complaint relates to our second point concerning directions on manslaughter and the way in which the trial judge failed to correct the jury correctly at any point as to how the alternative verdict of joint enterprise manslaughter arose.  Those directions occur, or commence, at page 141.  There are two attempts, we say both fail, and there is no application to the evidence in this case.  In particular, bearing in mind that on the Crown case it was not alleged that the applicant, Sumner, was responsible for inflicting any of the blows to any of the persons – the deceased or the victim, Karpany.

BELL J:   That is understood.  Can you just identify the errors that you rely on in the directions that were given?

MS SHAW:   Yes.  Firstly, in relation to the direction at 141, the direction was that the agreement was to cause a degree of harm which was dangerous by objective standards.  Then the direction goes on and, of course, it is not a plan to cause a degree of harm.  The plan must be to commit an unlawful and dangerous act.  His Honour goes on to direct the jury and, of course, in that direction his Honour misses serious harm.  He says merely “harm”.

BELL J:   That is what he corrects later.  Is there any other aspect of the direction that you complain of except that, in this instance, his Honour referred to “an appreciable risk of harm” as opposed to “an appreciable risk of serious injury”.

MS SHAW:   There are two points, your Honour.

BELL J:   Yes.

MS SHAW:   Firstly, when his Honour earlier defined “the reasonable man” at 138 of the application book, his Honour directed the jury that the reasonable person was:

reasonable people, you the jury, in the accused’s position –

And, we say, we submit, that that carries with it the risks associated with the jury injecting their subjective views in to the “reasonable man” test that are averted to by this Court in its judgment in Stingel v The Queen.   

BELL J:   Was there a complaint made about that aspect of the direction, Ms Shaw?

MS SHAW:   There was not a complaint made, your Honour.

BELL J:   No, all right.  Yes?

MS SHAW:   It was a complaint generally about the direction and, if I can come to the second part of the complaint, it relates to the only other attempt to correct that occurs at page 154 when his Honour attempts to restate joint enterprise manslaughter.  In the redirection, at no stage does his Honour include the objective standard as referring to the fact that a reasonable person would have realised:

that it exposed the deceased to an appreciable risk of serious harm –

That is the first problem.  That does not occur in either redirections, and that is referring to the bottom of page 154.  Then in the final restatement his Honour once again refers to, at page 155, this is the learned judge’s final directions:

So if in looking at each accused the agreement in that person’s mind was not to cause grievous bodily harm but to cause harm by an unlawful and dangerous act –

Again, his Honour fails to direct the jury that the agreement is not one to cause harm, it is to perform an unlawful and dangerous act, and it is not necessary or part of that that there be agreement to cause harm.  Secondly, his Honour fails to refer to “dangerous” in the context of a reasonable person in the accused position would have realised that this conduct exposed the deceased to an appreciable risk of serious harm. 

So at no stage does his Honour inject into that direction the necessary requirements, firstly, of an agreement to perform an unlawful and dangerous act.  Therefore, there is never any identification of the conduct that the jury must address in determining whether there has been an agreement to perform an unlawful and dangerous act.

Secondly, the failure to correctly state the objective test bearing in mind that his Honour’s earlier directions are incorrect and bearing in mind that these directions are also incorrect.  The point made by the High Court in Wilson v The Queen is that the two elements, namely, the identification and proof of an unlawful act, and the second element, that it is dangerous, are both necessary for a correct direction as to the alternative verdict of manslaughter. 

So we submit that there was a viable case for manslaughter and that arose because of the Crown’s position, and in this respect his Honour’s directions at no stage correctly directed the jury and, more importantly, at no stage applied those directions to the evidence that was before the jury in the light of the way in which the Crown presented its case. In those circumstances, in our respectful submission, both in relation to section 23(1) and in relation to the alternative verdict of manslaughter, the accused has been denied his right to a trial that is not unfair. If the Court pleases.

BELL J:   Yes, thank you, Ms Shaw.  Mr Pearce, we do not need to hear you on the Sumner application.  We would be assisted by your submissions on grounds 1 to 3 in the Fitzgerald application.

MR PEARCE:   May it please the Court.  In my submission, the answer to the Fitzgerald application lies in the evidence.  If the Court would permit me, I just want to develop that at the outset.  The didgeridoo, to pick up on your Honour Justice Bell’s question to my learned friend, the didgeridoo was ordinarily – the evidence disclosed is it was ordinarily kept in the laundry.  It had belonged to the occupant of the house’s former partner, the father of her children, and the custom was nobody touched it, it was not used.  However, on this particular night at about 5.00pm it was played by the deceased.

The evidence was silent about where it was placed after that, however, at the time that the intruders gained entry through the rear of the house the didgeridoo had been picked up by one of the female occupants.  She held it in a defensive manner until such time as she had been threatened by one of the intruders.  She then gave evidence that it was placed down against a wall.  She has no idea what became of the didgeridoo thereafter.  There was no direct evidence the didgeridoo was used to inflict any blows.  The cause of death of the deceased was a blunt trauma – serious injuries to the head, and similarly, there were blunt trauma injuries to the head of the victim of count 2.  However, nobody saw the didgeridoo being used.

The last sighting of the didgeridoo was from the witness, Leticia Webb, who described having it in her hand in the kitchen, as I said, putting it down when the intruders came in.  The didgeridoo was found by the police crime scene examiner in the lounge room, adjacent to the fireplace and door.  There was evidence at trial about the dimensions of the room.  In my submission, it was a small house with a small lounge room.  It was in that lounge room where the deceased’s body was found and, indeed, the direct evidence was that it was in the lounge room the deceased was attacked.

Witnesses describe the deceased being hit with objects such as pieces of wood but there was no evidence – direct evidence that the didgeridoo was in fact one of those items.  In my respectful submission, the totality of the evidence paints a picture of utter chaos in this house as men entered from both the front and rear, and the transcript references are set out in the respondent’s outline.  The didgeridoo was seized and forensically examined and there were a number of areas of what were described by Dr Henry, the forensic scientist, as areas of blood‑like staining.  Significantly, there was what she described as a large area of staining labelled 3.A, her evidence at 855, 857 deals with this.

She described that area of staining as having the appearance of blood, gave a positive reaction to the presumptive test for blood and produced a DNA profile.  It was a mixed profile with a major component.  The major component matched that of the deceased.  I will ignore for the moment sample 3.B, which is the DNA profile that matched that of Mr Fitzgerald.  Sample 3.C was another of these blood‑like stains that gave a positive presumptive result.  That yielded a mixed profile, a major component of which matched the victim in count 2, Mr Karpany.  There is a likelihood ratio of greater than a billion to one. 

A further sample from the didgeridoo, sample 3.F, that was located adjacent to the first stain, 3A, also produced a DNA profile, this one matched the deceased.  So there was by application, in my submission, evidence that the didgeridoo had been used in the attack because it had both the deceased’s blood on it and the blood from – well, open to the jury to include blood from the victim in count 2.

BELL J:   Open to the jury to conclude human blood beyond reasonable doubt?

MR PEARCE:   Yes, in my submission, because whilst the evidence was quite clear that the forensic science centre did not carry out any tests to determine whether it was in fact human haemoglobin, the evidence from the forensic scientist was that the presumptive test, for example, can yield false positives in certain situations, but the totality of the evidence was when you have the combination of the blood‑like appearance, positive presumptive test, the fact that a human DNA profile was obtained, all leads to the overwhelming conclusion – circumstantially in my submission – that the red/brown blood‑like stains that produced the positive presumptive test that then produced a human DNA profile came from a stain that was in fact blood.

That conclusion, in my submission, becomes overwhelming when one looks at the large areas of red/brown staining from which the samples producing DNA profiles matching the deceased and Mr Karpany were taken from.  So, in my submission, that is a conclusion that is open to the jury; indeed, one that, in my submission, would not be appropriate for the forensic scientist to make.  It is a matter of inference, and that inference, as I say, was well open.  That then brings me to ‑ ‑ ‑

BELL J:   Respecting – I am sorry, were you about to come to sample 3.B?

MR PEARCE:   Yes.

BELL J:   Yes, do.

MR PEARCE:   That takes me to 3B.  Significantly, with sample 3.B is the fact, first of all, of its size and dimensions.  There were two small spots on the didgeridoo that were tested.  One was a two millimetre by one millimetre red/brown stain.  The other was a one by less than one millimetre red/brown stain.  The evidence was that they both had the appearance of blood ‑ reddy‑brown appearance, with the appearance of blood, and she ordered a positive presumptive test, the hemastix procedure.

The forensic scientist was unable to say whether the mechanism of the depositing of those stains was, in fact, through airborne transfer or through contact because she was only able to work from photographs.  Samples were removed by the forensic science centre using a scalpel where they literally scraped off the stain, taking care not to remove the timber of the didgeridoo.  She was not able to examine them in the flesh, so to speak.  What she was able to say from the photographs was the evidence about their dimensions but could not form any firm view about their method of transfer.  But, once again, in my submission, that is a matter of inference for a jury.

If whatever – ignore for the moment whether it was blood – if whatever it was, whatever substance it was, how it came to be placed on the didgeridoo, in my submission, it was clearly open to the jury to conclude it was an airborne method because of the very small size – tiny size of these two drops as opposed to a smear or contact.  However, that, in my submission, is not fatal to the respondent’s case.

The evidence of Dr Henry was that blood is a rich source of DNA.  These stains produced a major and a minor DNA profile.  Blood is a rich source of DNA from which DNA is readily found.  The scenario – the hypothesis consistent with innocence was that the DNA of Mr Fitzgerald got onto the didgeridoo through what is described as secondary transfer.  Now, a number of theories were postulated, the most prevalent of which was the notion of secondary transfer due to handshake.  May I just develop that briefly?

BELL J:   Mr Pearce, just before you do that, can I take up a more general question and that is this?  The evidence did not establish, as I understand it, when the DNA sample came to be on the didgeridoo.

MR PEARCE:   That is correct.

BELL J:   Now, appreciating that one might infer the likelihood in the circumstances that you described that it was deposited that evening in the course of a melee.  Nonetheless, when one is looking at proof beyond reasonable doubt it might be thought not sufficient to point to improbabilities about whether or not it was a handshake between Mr Fitzgerald and Mr Sumner earlier that evening and a transfer occurring by that means, but rather to ask absent any evidence to establish when the DNA sample was placed on the didgeridoo, how does one conclude beyond reasonable doubt that those two small samples that formed sample 3B established Mr Fitzgerald’s presence and participation in the events of that evening involving the killing of the deceased and the wounding of Mr Karpany?

MR PEARCE:   And to develop that question further, how does the prosecution exclude any suggestion of innocent association with a didgeridoo?  The evidence of the occupant of the house was that she had never heard of Mr Fitzgerald, never heard of anybody called Fitzy or similar names, had never seen him.  There was no evidence from her of any innocent association or any association with Mr Fitzgerald that could give rise to innocent association between Mr Fitzgerald and the didgeridoo.

In my learned friend’s outline there is a reference to the example of the man next door who has a hammer in his shed that has the accused’s DNA upon it.  There may well be an innocent explanation for how the neighbour got his DNA on the hammer.  There is no such suggestion here because Mr Fitzgerald was unknown to the occupant of the house, to the owner of the didgeridoo.

BELL J:   But we do not know what had been the history of the didgeridoo.  We do not know that it had not been taken out on occasions and used in public or any of a number of theses.  On one view, Mr Pearce, it might be an error to concentrate on showing some deficiency in a particular theory said to be an innocent hypothesis.  One comes back to the capacity of the evidence to establish beyond reasonable doubt the presence and participation of Mr Fitzgerald at the time of the events.

MR PEARCE:   The answer to that does in fact lie, in my submission, in the evidence of Dr Henry, but if I may just briefly finish with the evidence of the occupant of the house, Nadine Wanganeen.  She describes, to answer directly your Honour Justice Bell’s question, at 194, 195 that nobody handled the didgeridoo because it belonged to the children’s late father.  At 195, other people did not pick up the didgeridoo or play the didgeridoo.  She said at 196 she did not let people play with the didgeridoo.  So there is, in my submission, some support for the proposition I advanced, but more pressing, in my submission, is the fact that the evidence of Dr Henry was that – I withdraw that.

GAGELER J:   We have a summary of the evidence of Dr Henry in the application book at pages 300 to 301.  Is that an accurate summary?  Is there something more that we need to know about it?

MR PEARCE:   There is one point I want to develop and that is that it begs this question of were the red/brown stains blood, and that is where the evidence of Dr Henry becomes important.  If the stains were blood, it really belies common sense to suggest that there could have been a secondary transfer of blood of that size onto the didgeridoo.  The other scenario was secondary transfer of skin cells, epithelial cells or whatever, put onto the didgeridoo, that were then overlaid by a red/brown stain.

Dr Henry’s evidence was that, blood being a rich source of DNA, would likely yield greater quantities of DNA than would the deposition of epithelial cells by secondary transfer.  So the major component of this sample matched Mr Fitzgerald’s.  Dr Henry could not say how the stain got there.  She could not say whether sample came from the red/brown material or something that was effectively entombed underneath it.  However, what she was able to say was that blood is a rich source of DNA, secondary

transfer occurs very rarely, and in this particular case it required the transferor to leave more DNA from the other person than from themselves.

All of those things in combination, in my submission, pointed overwhelmingly to the sample (a) being blood and (b) being deposited by the primary transferor rather than the secondary transferor.  That is where the finding of the jury derives strength and, in my submission, was one that was clearly open to it.  With great respect, in my submission, it is a classic jury question and it does not call for review by this Court because, in my submission, the court below applied the correct test on appeal.  There was an independent review of the evidence and there is no wider point of importance that is thrown up by this issue on that particular ground.  They are my submissions, if the Court pleases.

BELL J:   Thank you, Mr Pearce.

In the application of Daniel Glenn Fitzgerald, there will be a grant of special leave.  That grant will be confined to grounds 1 to 3 in the amended draft notice of appeal. 

In the application of Grant Andrew Sumner, we are of the opinion that if special leave to appeal were granted, the appeal would have insufficient prospects of success.  For that reason, special leave is refused.

Mr Bennett, it will be necessary for you to obtain from the Registry the directions respecting the filing of submissions.  I understand that there has been some adjustment made to accommodate Easter. 

MR BENNETT:   Yes, if your Honour pleases.

BELL J:   The Court will now adjourn to reconstitute.

AT 12.04 PM THE MATTERS WERE CONCLUDED