Gassy v The Queen

[2007] HCATrans 426

[2007] HCATrans 426

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A2 of 2006

B e t w e e n -

JEAN ERIC GASSY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 9 AUGUST 2007, AT 10.09 AM

Copyright in the High Court of Australia

MR J.E. GASSY appeared in person.

MR P.R BREBNER, QC:   I appear with my learned friend, MS E.F TELFER, for the respondent.  (instructed by Director of Public Prosecutions (SA))

GLEESON CJ:   Now, Mr Gassy, we have read your written submissions and you have 20 minutes to add anything you desire to add to that.

MR GASSY:   Yes, your Honour.  I am entitled to emphasise points that I have already made in the written submissions?

GLEESON CJ:   You are entitled to use your 20 minutes as you please.

MR GASSY:   Thank you, your Honour.  I wish to start with the illegal search.  The trial judge went to extreme lengths to hide illegality in the issue and execution of the warrant, most notably in the interference of the cross‑examination of Moss - that is at AB 780 – at which defence counsel concludes:

I obviously misunderstood what the purpose of cross‑examination was -

repeatedly prevented counsel from pursuing legitimate lines of inquiry in relation to the issue and the execution of the warrants, and ruling at the end of the voir dire that the search was not attended by illegality or impropriety, a finding which was not open on the facts.  Judicial bias was evident throughout the proceedings and the court below covered up the gross mistrial and the unsafe and unsatisfactory verdict.

I will need to address many of the facts in support of my argument.  Mrs Gassy was unlawfully stopped.  As she was driving away from her premises, one kilometre away, Leonard stepped out, in his own words, “onto the roadway immediately in front of the direction that she was driving” forcing her to stop.  She was not in breach of any traffic law nor suspected or any offence.  Under New South Wales law the stopping was unlawful. 

False pretences were made to Mrs Gassy.  Leonard told her “he wanted to execute a search warrant on her premises” and “We have to take you back to your house.  Your son is armed and violent.”  In the process he caused her to abandon her planned scripture class at a local school.  She was coerced.  Once Leonard had advised her of the impending search he could not risk her alerting the applicant, for example, by using her mobile phone.  Without permission he and Kinsman opened the door and got into the car with her so that Leonard could exert, in his own words, “control” over the situation.

When Maud Gassy refused to drive, Leonard simply took over the driving hell bent on executing his “mission.”  She was endangered.  They drove her back into what they considered a potentially violent siege situation involving the use of firearms where their preferred option would have been the use of a Tactical Response Group.  He and his fellow officers circumvented the danger by herding Maud Gassy to the front door and using her as a human shield between themselves and the perceived threat behind the door.

Leonard was, in his own words, “relieved” to see the applicant inside the doorway unarmed, an indication that he really believed the situation was dangerous.  Maud Gassy did not agree to co‑operate.  Leonard admitted Maud Gassy told him she “had to go to the school” and that he never told her that she did not have to come back with them if she did not want to.  He claimed he did not elect to follow her back to the house in his own car because he “didn’t think of it at the time”.

Significantly, Kinsman, who rode in the car with Leonard and Maud Gassy to the school and back to the staging post declined to corroborate Leonard’s claim that Maud Gassy agreed to co‑operate.  In these circumstances, her initial submission cannot be properly regarded as voluntary.  It was obtained by implied coercion, possible only because the police officer was ostensibly clothed with the authority of State law.

Neither occupier agreed to police entering and searching the premises.  Police executing a warrant are required by the Act, section 15A(1)(a) and (b), to firstly announce that they have a warrant, which Leonard did, and secondly, to provide the occupier with an opportunity to allow entry into the premises, which is what the applicant and his mother did.  Furthermore, section 9 requires the occupier’s compliance.  Section 17 authorises the use of force.  Who in their right mind would stand in the way of armed New South Wales police intent on executing a warrant after what happened to Ted Bundy? 

Police having invoked the power of the warrant, there was no scope to claim that the occupiers agreed to their entry and continued presence on the premises.  Police never advised the occupiers at any time that they did not have a warrant for the premises, and did not continue the search until Moss came back with the amended warrant.  They well knew there was no agreement of any sort with the occupiers.

From the transcript of the interview between the police and the applicant at the front door, AB 1324 to 1330, it is clear that the prosecution’s submission that immediate entry was required – that is in their summary of argument, paragraph 7, AB 1630 – could not possibly arise on the facts.

The premises were searched immediately upon entry and the pistols and other evidence effectively seized.  The word “search” implies some physical intrusion into what is searched for the purpose of examining what is in it - Question of Law Reserved, No 3 of 1998.  Butterworths defines “search” as the power of police officers to investigate or explore premises, vehicles or people

Police looked into the applicant’s room and established the whereabouts of the Glock pistols, ensured that no one else was in the house, made sure the back access was closed, told the applicant not to remain in his room, closed the door to the applicant’s room, told the applicant to accompany them upstairs, retained control over the premises until they had removed the last seized items at 10 pm.  The original warrant was executed.  Once a power is exercised under the warrant, for example, to enter, section 6, then execution of the warrant has commenced. 

The illegality was deliberate.  Police knew the address on the warrant was not that of the applicant when they stopped Maud Gassy and when they spoke with the applicant at the front door claiming to have a warrant for the premises.  Police contemporaneous record of the investigation in Sydney shows they were aware that the address on the warrant was not that of the applicant by 9.50 am at the latest.

During the interview conducted at 10.20 with the applicant at the front door just prior to gaining access, Leonard slips when he admits he and his fellow officers are waiting “until we can get this search warrant” and not for additional police officers as falsely claimed. 

New South Wales Police considered who should be given the occupier’s notice before gaining entry but elected not to provide it until Moss returned at 12.30 with the amended warrant and occupier’s notice.  The calculated delay in providing the occupier’s notice was aimed at hiding the fact that they did not have a warrant for the premises.  But most notably, Leonard himself, who was in charge of the execution of the warrant, admitted that he actually – this is not in the written submissions – discovered that the warrant did not have the correct address before he gained entry.  That is at AB 692. 

At AB 1015, according to Leonard himself on his own evidence, he said that entry to the premises at 10.26 was by the invitation of Maud Gassy.  So on Leonard’s own evidence he knew the address was not that of the applicant before he gained entry, but claimed that he gained entry at the invitation of Maud Gassy.  So how the judge could determine that police only found the address on the warrant was not that of the applicant after police had gained entry is incomprehensible.

Detailed submissions about false representations by police were made at every stage of proceedings before the court below.  The fraudulent alteration of the original warrant - after New South Wales police had secured control over the premises, the warrant was returned to the issuing justice.  The original page 1 was removed and never produced at the trial.  A new page 1 with the applicant’s address was combined with the original page 2 to form VDP1.  That is AB 1322 to 1323, which was executed at 12.35 on the day of the search.  VDP1 was not a new warrant but an amendment of the original warrant. 

Moss, the applicant for the warrant, having witnessed the procedure adopted by the issuing justice, so conceded.  VDP1 was collected on 29 October but is dated 28 October.  That is on page 2.  The warrant is a two‑page document.  Page 2 of the warrant has the date.  But even more significantly, the expiry date on page 1 of VDP1, which was the amended page, indicates the date of issue as 28 October.  The Act specifies that a warrant expires after 72 hours.  So not only did Wiseman change the address, but he ensured the expiry date on the amended page would suggest to anyone looking at the record that the warrant had been issued on the 28th.

The Full Court’s ruling that the fact that the expiry date indicates the date of issue as 28 October was operated in the applicant’s favour because it shortened the time of length during which the warrant could operate was disingenuous.  Removing a legal document containing such an error from the record after it had been acted on, and substituting an amended page to make it appear as if no error had ever been made, amounted to fraud.

The seized items were illegally removed.  Despite being aware that the law required him to vacate the premises by 9 pm, Leonard and his officers remained on the premises after the warrant had expired for “the time it took to take whatever equipment” they had with them.  This equipment consisted of the evidence bags containing the seized items, which makes the court below’s ruling that no items were seized after 9 pm not open on the facts. 

The court below made, inter alia, disingenuous rulings to allow a conclusion that the public policy discretion was properly exercised.  Though Mrs Gassy agreed to co‑operate with police, the police entered the house with the applicant’s consent, the police discovered the address on the search warrant was not that of the applicant after entering the applicant’s premises.  Whether police falsely claimed to the applicant and his mother that they had a warrant authorising a search of the premises was “not fully agitated before us that it is inappropriate to express a concluded view as to whether it was open to Mr Wiseman to amend the warrant because of ‘difficulty in determining whether there had been a relevant use of the warrant prior to its amendment’ that no article was seized after 9 pm”.  So the contravention of the law by the police was not deliberate.

The prosecutor did not produce the section 13 regulation 9 records because regulation 10 certificates made them unavailable.  The tender of VDP1 and VDP2 prove ‑ that is the warrant and the supporting affidavit – the regulation 10 certificates were not a bar to its access.

The court below failed to consider the following:  the unlawful stopping of Maud Gassy, the endangerment of Maud Gassy, New South Wales police’s failure to provide an occupier’s notice upon entry as required by the Act, the fact of the fraudulent alteration of the original warrant, the provision of false and misleading information to the issuing justice, the fact that the applicant and the applicant’s nominee were illegally denied access to the section 13 records, the prosecution’s collusion with the cover-up, the cumulative effect of all the illegalities and the exercise of the unfairness discretion.  None of these were considered by the court below.

I turn to the exercise of discretion.  The nature of the offence is immaterial to the unfairness discretion.  Had the police not acted illegally and improperly the evidence may not have been obtained.  The illegalities involved the real evil, a deliberate and reckless disregard of the law by those whose duty it is to enforce it.  There was a quite deliberate intent on the part of the legislature to maintain the common law requirement that information unearthed from the applicant must ground the issue of a search warrant, make it an offence to provide false information to the issuing justice, require police to provide detailed information in plain language to the occupiers about the warrant upon entry through the occupier’s notice, an important innovation of the Act, and to restrict the police in the length of time they could remain on the premises.  Breaches of statute more readily warrant the rejection of illegally obtained evidence.

Cogency should be allowed to play no part where the illegality is intentional or reckless.  The items were neither vital to conviction, nor of a perishable nor evanescent nature.  In any event, the seized items lack cogency - most notably the Glock pistol should have been excluded as having fired the projectiles and cartridge cases recovered from the scene - at AB 1411 the comparison between projectiles fired from the applicant’s barrels and those recovered from the scene. 

He admitted that the individual characteristics on the projectiles test fired from the applicant’s barrels were markedly different to the individual characteristics on projectiles recovered from the scene.  You can compare AB 1411 to AB 1357 where the projectiles from the scene are compared with each other.  It is quite obvious that the scene projectiles were fired from the same barrel because all the striations line up, whereas in the comparison between the applicant’s barrels and the scene, there is no match. 

Now, however, he claimed he could not exclude the applicant’s barrels as having fired the scene projectiles because the differences could be due to “shot to shot variation”.  This shot to shot variation, at least in this case, is due to the spread of friction at – I mean, if you look at 1357, there is not much shot to shot variation.  Shot to shot variation is due to the spread of friction and of particles during firing.  Such random spread could not produce an identical pattern on four consecutive occasions.  He might have got away with this argument if only one projectile had been recovered from the body.

He claimed he could not remember and had no record of whether the applicant’s barrels produced a reproducible mechanical fingerprint.  If the applicant’s did produce a reproducible mechanical fingerprint, and 80 per cent of barrels do, then Lawrence would not have been able to maintain that he could not exclude the applicant’s barrels as having the scene projectiles.  Not having this evidence amounted to non‑disclosure, as did the prosecution’s failure to produce the original page of the warrant. 

Now, he also claimed he could not exclude any other 9 millimetre Glock as having fired the projectiles.  He also examined lip marks produced by the applicant’s magazines on cartridges test fed through the pistols.  He could not identify the lip marks on the scene cartridge cases as having been produced by any of the applicant’s magazines.  Lawrence agreed that information about lip marks is esoteric and not mentioned on FirearmsID.com, books or film, not even CSI.  This was additional powerful evidence that neither of the applicant’s Glocks was the murder weapon. 

Endangerment of Maud Gassy alone was of comparable seriousness to the alleged defence.  It has been a common feature of totalitarian societies that police use family members to obtain evidence against suspects and has not been a feature of our society.  The case is at the opposite extreme to Bunning v Cross which involved isolated and accidental non‑compliance with the law.  The cumulative effect of the multiple, serious, deliberate and reckless illegalities and the subsequent cover‑up, was such that the principal considerations of public policy favouring exclusion were at their strongest.

I do not have a watch.  How much longer have I got?

GLEESON CJ:   You go until the red light shows.  You have got the green light at the moment.

MR GASSY:   Right.  There is a clock.  What time did I start, sorry?

GLEESON CJ:   I will let you know.

MR GASSY:   Thank you.  I will skip to Tuffin’s identification evidence.  On the audio recording of his identification procedure, Tuffin said he favoured image No 4 as being that of a man he saw in the City Centre Building on the afternoon of the shooting.  He did not sign a hard copy of the array shown to him.  The video of the identification procedure was allegedly accidentally erased.  In court after having seen the applicant in the dock and heard the audio recording of his identification procedure, he was shown an array with the applicant’s image at position 4 and asked if he agreed that it was the array he was shown 18 months previously.  “I remember some of the images here, so it does appear so”, he says. 

Now, all the arrays had the same images but simply rotated so they were all in different positions, but each array had the same set of images in different orders.  So his relying on the fact that he remembered some of the images was not a proper basis for him to conclude that it was the array that he was actually shown and clearly from that statement that was what he was relying on to conclude that that was the array that he was shown. 

Now, the prosecution did not lead further evidence about the array used as…..  Tuffin should not have been asked to attempt a dock identification of the applicant because the 18 months between the identification procedure and the dock identification renders the procedure adopted to demonstrate out‑of‑court identification invalid.  Secondly, an error resulted in the production of a second set of photo arrays with the same labels.  Even if the label of the array shown to Tuffin was known, without video of the ID procedure or a signed hard copy of the array shown, it would be impossible to know whose image Tuffin saw a position for.  Thirdly, even if there had been evidence that image 4 was the applicant, Tuffin said he favoured image 4 but could not positively identify him as the man he saw and was not sure if his mind was just making it up.  This does not constitute the requisite out‑of‑court identification for an attempted dock identification.

I turn to Durrington’s identification evidence.  Durrington described the Aboriginal man who she subsequently reported to identify as the applicant as being 18 to 26 years old, a precise specific age limit indicating a high degree of confidence in her observation.  The lift where Durrington saw the male had bright fluorescent lighting.  It would be impossible for the

applicant who was 46 years old in October 2002 to be mistaken for 18 under such lighting.

GLEESON CJ:   All right.  Thank you very much.  Will you take a seat now alongside the officer?  Mr Brebner, the two matters that we wish you to address in your oral submissions are the matters the subject of proposed grounds 2.10 and 2.11, which are the grounds on which Justice Debelle dissented in the Full Court.

MR BREBNER:   The representation ground and the final direction ground, if I can style it in those terms.

GLEESON CJ:   Yes.

MR BREBNER:   The chronology of the applicant’s representation and lack of it is set out in application book 2 at pages 330 and following.  In reality, the applicant was unrepresented against his wishes for a relatively short time.  Even then he had the assistance of counsel acting more or less as a qualified McKenzie friend.  At application book 2, pages 333 to 334, it can be seen that the majority considered the relevant passages concerning representation and its impact on the fairness of a trial in the reasons of this Court in Dietrich v The Queen and to the references in my outline in paragraphs 13 to 17 I would add page 337, Justice Deane, and page 363, Justice Toohey. 

At application book 3, page 344, it can be seen that the majority correctly distilled the principle to be derived from the passages in Dietrich, to which I refer, and, in my submission, that distillation of principle is entirely in conformity with the statement of principle representing the views of the majority which was articulated in the reasons of Chief Justice Mason and Justice McHugh in Dietrich at page 315.  In my submission, when one looks at that distillation of principle by the majority, it is plain that the majority in Dietrich were not of the view that a trial will necessarily be unfair merely because an accused is unrepresented, albeit exceptional circumstances may have to arise for that not to be the case.

GLEESON CJ:   Let it be supposed that is correct.  What do you take to have been the point of departure between the majority and the dissenting judge, because it is that point of departure that you need to address?

MR BREBNER:   Indeed.  The dissenting judge was of the view that lack of representation of itself constituted a fundamental error that went to the route of the trial, making the trial not a trial at all.  The majority, in my submission ‑ ‑ ‑

CALLINAN J:   Is that right?  I thought the dissenting judge took the view that the lack of representation was a lack of representation at an important time and in relation to important matters.  It was not simply because there was a lack of representation for a period.  It was the period and what happened during the period, was it not?

MR BREBNER:   It was partially that, your Honour, and as I read him he regarded that as a fundamental defect, but, in any event, it is my submission that ‑ ‑ ‑

CALLINAN J:   Is it not right that in paragraph 143, for example, on page 333 ‑ ‑ ‑

MR BREBNER:   Could your Honour just pardon me for a moment?  Was that 342, your Honour?

CALLINAN J:   Page 333.  I may be wrong, but it does not seem to be there.  Perhaps it is somewhere else.

MR BREBNER:   Page 333 is the judgment of the majority, if your Honour pleases.

CALLINAN J:   Yes.  Their Honours say there, after referring to the period of the 11 days, it is:

a period during which there was argument on a number of pre-trial applications of some importance involving the admissibility of quite significant evidence - 

They seem to think that the presence of Mr de Robillard is a complete answer to that.

MR BREBNER:   In my submission ‑ ‑ ‑

CALLINAN J:   Is that not a correct reading though, Mr Brebner?

MR BREBNER:   It is a correct reading of that passage, your Honour, but it is significantly qualified by later passages in which their Honours consider the potential impact of lack of representation at that stage on the ultimate fairness of the trial.  Those passages are to be found in application book 3 at pages 343 and following where they apply the correct tests to the question of miscarriage and consider whether the error was a fundamental defect which went to the root of the trial.

Then, in my submission, a close reading of their Honours’ reasons shows that they subjected the potential impact of the denial of representation to what only can be described as the most meticulous analysis and concluded that in all the circumstances of the case there was no residual risk that the voir dire or, indeed, the trial had been conducted unfairly and that the applicant had not thereby lost a chance of acquittal which was otherwise open to him ‑ ‑ ‑

GLEESON CJ:   Was it part of the reasoning of the majority that, since what went on during the time of lack of representation in circumstances that everybody agreed involved an error of law on the part of the trial judge was the rejection or admission of evidence, the way you could test whether there was a miscarriage of justice was to say, first of all, “Insofar as evidence was rejected, the lack of representation had no consequence adverse to the accused and, insofar as evidence was admitted, the accused on appeal could argue that the evidence was wrongly admitted?”  Was that part of the reasoning?

MR BREBNER:   That was part of the reasoning, your Honour.  The other part of the reasoning was that the denial of representation as things panned out did not deny him the chance of, for the want of a better way of putting it, more properly testing the admissibility of some of the evidence which was, in fact, admitted.  That comes through in the ruling.  For example, the applicant at one stage wanted to mount a collateral challenge to the sufficiency of the material before the justice who issued the warrant.

In fact, the affidavits on which the warrant was based were in evidence.  The court prepared a subpoena to the particular Local Court in New South Wales that issued the warrant.  The applicant was warned of the potential consequences if he declined to have the subpoena issued.  He did decline.  The documents were ultimately subpoenaed by the Crown and placed before the Court of Criminal Appeal.  The applicant was asked if he wished to inspect them and he did not.  There were opportunities for counsel to reopen some of these matters on the voir dire after he was engaged, some of which he chose to, the bulk of which he did not.

It is my submission, to go back to where I started with your Honour the Chief Justice’s question, a full reading of the relevant paragraphs of the reasons show that there was a meticulous consideration of this question and every possibility of miscarriage was considered and rejected.  Without laboriously reading the relevant passages, I cannot take the point any further.

Indeed, an examination of the record reveals that the applicant took all the available objections to evidence, identified all the applicable principles, and, indeed, conducted the voir dire in the trial with a degree of skill which would do credit to many counsel.  A close examination of the record of the kind which the Court of Criminal Appeal obviously engaged in, in my submission, reveals that the court was satisfied that there was really nothing competent counsel could have done to take the matter any further or, alternatively, any tactical decisions that were made by the applicant were those which competent counsel might reasonably also have made.

Now, if I can turn to the Black direction and the final direction which I outline at paragraphs 55 to 64.  The Black direction which was given after the jury had been in retirement for not a particularly long time ‑ ‑ ‑

GLEESON CJ:   I do not think it was the Black direction that was the subject of Justice Debelle’s dissent, was it?  It was the concluding ‑ ‑ ‑

MR BREBNER:   I beg your pardon, your Honour.  I misunderstood.  The majority’s rejection of the applicant’s contentions regarding the final direction in my submission do not raise any point of principle, given that it is permissible and, indeed, desirable at times for trial judges to help juries move along if they can.

CALLINAN J:   What to move along only one route?  Is a possible inference that her Honour was really suggesting a route to which there could only be one possible destination?

MR BREBNER:   With respect, no, your Honour.  I will enlarge on that in a moment.  The majority, in my submission, addressed itself to the right question, namely whether the direction unbalanced the summing‑up or suggested a result rather than a process.  In my submission, a consideration of a question like that is ultimately a matter for an intermediate court of appeal, unless it can be demonstrated that there is any residual risk of miscarriage, and, in my submission, there is not. 

In part answer to your Honour Justice Callinan’s question, it is my submission that when one looks at the structure of the prosecution case and the structure of the bulk of the summing‑up, it can be seen that the only way that her Honour’s attempt to assist the jury could be couched in meaningful terms was if it was put in terms of the prosecution case.  It was, as her Honour said, not an occasion to rehearse all the evidence and all the arguments.  Her Honour was at pains to remind the jury to remember the evidence and the arguments and that they could have any evidence read to them.    It is necessarily implicit, in my submission, that her Honour was implying that if the Crown fell at any hurdle that was the end of the matter and her advice was supplementary to and not in derogation of the bulk of the summing‑up.

Again, in my submission, it can be seen at application book 366 to 371 that the majority subjected this direction and the potential for

miscarriage to again what can be described as a meticulous scrutiny, and concluded that the directions suggested a process and not a result.  It is my submission that conclusion is not, when properly analysed, attended with sufficient doubt to warrant the grant of special leave.  It is very significant, in my submission, that the very last thing that her Honour said to the jury, which is to be found in application book 1 at page 114 is that if:

I have not made it clear enough that what I have said to you are merely suggestions for your consideration.  I thought I made that clear, but that is all they are.

It was made perfectly plain to the jury that they were suggestions, nothing more, and it was left to the jury to make what they would of them.  If the Court pleases.

GLEESON CJ:   Thank you.  Now, Mr Gassy, do you want to reply to anything that has been said?

MR GASSY:   Yes, your Honour.  Firstly, in regards to the abandoning the subpoena ‑ ‑ ‑

GLEESON CJ:   Come over to the microphone, thank you.

MR GASSY:   In regards to the applicant abandoning his subpoena for the section 13 records, given the prosecution offered to join with the New South Wales authorities to have the applicant’s subpoena for the section 13 records set aside, it could be inferred that the applicant may have been concerned that if he pressed the issue the record would have been amended in the same way as the original warrant.

In terms of the final direction, the final direction practically instructed the jury to ignore that factors about the scene excluded the applicant as the killer.  The applicant was a proficient target shooter, producing groupings of 15 centimetres at a range of 25 metres, AB 1347.  Tobin was shot from about three metres, AB 1376, 1377, with the grouping of 46 centimetres – AB 1314.  At this range the applicant would be expected to produce shot groupings of 3 centimetres.  The applicant’s Glocks were fitted with integral laser sights enabling even smaller groupings.  Anxiety does not lead to a 15‑fold drop in shooting accuracy.  There was no evidence that Tobin carried a weapon.

On the prosecution case, Tobin spent 30 seconds in a small lift with her killer and turned to look at the assailant as she was shot.  Tobin remained conscious for some minutes.  She spoke to Kaye Martin yet she did not identify her killer.  Tobin was the applicant’s immediate superior for six months at St George Hospital in 1993 to 1994.  She was intimately familiar with the applicant’s appearance, which had not changed significantly between 1993 and 2002, as can be seen between a comparison of an image of an applicant in 1993, AB 1371, and an image of the applicant in 2002 at AB 1293.  Tobin was seen to leave the lift unperturbed.  It is inconceivable that a killer motivated by revenge and who had waited eight and a half years for his moment would not have declared himself to the victim before killing her.

The position of the cartridge cases shows the killer was in the lobby and not in the lift itself at the time of the shooting.  On the prosecution case, the applicant had learned that slides left identifiable marks on cartridge cases.  If the applicant was the fourth man in the lift, and the shooter, why did he not shoot Tobin from the lift as she exited so that he could collect the cartridge cases off the lift floor before escaping?  Why would the fourth person in the lift step out of the lift into the corridor before shooting Tobin.  Being medically trained, the applicant would also be aware that shots to the chest would not produce immediate loss of consciousness, risking identification. 

In terms of legal representation, the applicant was materially disadvantaged by the denial of representation.  For example, in failing to cross‑examine Durrington on a voir dire, he was forced to – there is a marked difference in the level of skill in the cross‑examination of Kinsman by the applicant and – Kinsman being a witness in regards to the search – and that of Leonard and Moss by counsel and in the sophistication of the applicant’s legal arguments, for example, in relation to the validity of the warrant and that of counsel’s, for example, in relation to the mental fitness inquiry.

None of the Search Warrant Act authorities relied on were available to the applicant at the trial.  The applicant’s limited access to counsel before and after sessions did not remedy the denial of representation, especially given that the judge prohibited counsel from passing notes to the applicant during the proceedings.

The judge’s refusal to allow counsel to cross‑examine Leonard and Moss re issue of the warrant, allegedly because its validity argued by the applicant was not in question, or similarly to cross‑examine Moss re legality of police actions on 29 October is a clear indication that the judge was unprepared to revisit any matter dealt with by the applicant while unrepresented.  The applicant’s level of skill at the appeal after a year of studying the relevant law was not indicative of his level of skill at the time of the trial.

GLEESON CJ:   Thank you.  Take a seat.

MR GASSY:   Sorry.  One more point is that the final instruction also practically instructed the jury to conclude that the applicant was in Adelaide on the day of the shooting.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 10.50 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.54 AM:

GLEESON CJ:   Insofar as this application for special leave to appeal is based upon proposed grounds 2.0 to 2.9 appearing in the amended draft notice of appeal commencing at page 399 of the application book, we are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and in that respect and to that extent the application is dismissed.

Insofar as the application for special leave to appeal is based upon proposed grounds 2.10 and 2.11, which are in substance the grounds upon which Justice Debelle dissented in the South Australian Court of Criminal Appeal, we order that the application for special leave to appeal should be referred for consideration by a Full Court of this Court and when the matter is listed for further hearing of the special leave application in relation to those grounds, the parties should be prepared to argue the matter as on a full appeal.

AT 10.56 AM THE MATTER WAS ADJOURNED