Gavanas v The King

[2023] HCATrans 148

[2023] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M12 of 2023

B e t w e e n -

STEPHEN GAVANAS

Applicant

and

THE KING

Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 20 OCTOBER 2023, AT 12.29 PM

Copyright in the High Court of Australia

GAGELER J:  In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS C.A. BOSTON, SC appears with MR J.R. MURPHY for the applicant.  (instructed by Stary Norton Halphen)

MR J.C.J. McWILLIAMS appears with MR T.M. WOOD for the respondent.  (instructed by Office of Public Prosecutions (Vic))

GAGELER J:   Ms Boston.

MS BOSTON:   May it please the Court.  This case raises three questions of law of general importance:  first, the Szabo question; second, the duty of loyalty question, and third, the duty of disclosure question, which we have identified in our application.  In our submission, those questions warrant this Court’s attention because they are difficult questions which require the resolution of conflicts, or apparent conflicts, in the authorities.  Further, this case is the appropriate vehicle to consider those questions. 

We will address that latter issue first before turning to the questions themselves because we understand the thrust of the respondent’s argument to be that the questions do not arise, or that this is not the case to deal with them.  To the contrary, in our submission, this is a good vehicle for the questions of law we raise.  Mr Gavanas’ case was the first of the proposed appeals arising out of the Royal Commission into the management of police informants to proceed as a contested hearing and final judgment in the Court of Appeal where the applicant was legally represented.  There are currently several dozen Lawyer X‑related appeals or proposed appeals with applications before the Court of Appeal, and if this judgment is left undisturbed, it will inevitably set the framework for how the propriety and lawfulness of Ms Gobbo’s conduct is assessed in future cases, and how the substantial miscarriage of justice criterion is applied.

Now, the three questions of law raised by this case are all certain to arise in other cases.  With respect firstly to the Szabo test, the Royal Commission concluded that the vast majority of the people who may have been affected by Victoria Police’s use of Ms Gobbo as a human source were affected in the manner identified in Szabo.  Secondly, with respect to the duty of ‑ ‑ ‑

GAGELER J:   When you say, “in the manner identified in Szabo”, what exactly do you mean?

MS BOSTON:   In terms of the statement of principle arising from that case relating to whether a fair‑minded citizen would entertain a reasonable suspicion that justice had miscarried, your Honour.

GAGELER J:   But, Ms Boston, there would need to be some articulation of how justice had miscarried, would there not?  Even on that test.

MS BOSTON:    Yes, of course, your Honour.  Yes, quite so.  We accept that, your Honour.

GORDON J:   Do you accept that the Court of Appeal determined that the facts in Szabo were distinguishable from the facts here?

MS BOSTON:   No, your Honour.  In our submission, the court below misapplied the principle in Szabo, effectively confining it to its facts, rather than applying the more general statement of principle arising from Szabo, which is expressed in general terms in that case.  Chief Justice de Jersey at paragraph 6 expressed the test in very general terms, namely whether, with knowledge of all relevant circumstances, an ordinary, fair‑minded citizen in the position of the appellant would entertain a reasonable suspicion that justice had miscarried, whereas the court below in this case really constrained that decision to the particular facts of that case.

I can go to that question first, perhaps now, rather than addressing the vehicle question generally, your Honours.  In that case, obviously it had quite peculiar facts in that there was a previous close personal relationship between defence counsel and the prosecutor, which at the time of the trial had the prospect of being renewed.  That, as we have submitted, although that was the factual basis of that particular case, the principle arising there from is not so confined.

We note too that in that case, Justice Thomas really had foresight in articulating the tests as involving consideration of matters from the position of the appellant, and we note that recently this Court has said something similar in the context of apprehended bias in the recent case of QYFM 97 ALJR 419, obviously from this year, where your Honour Justice Gageler and the Chief Justice said at paragraph [49]:

Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias.

We note, your Honours, that in Szabo, Chief Justice de Jersey observed at paragraph 6 that the Szabo test was transposed by analogy from the test which applies in the context of apprehended bias.  The rationale for that test, and why we submit that Parliament must have intended the concept of substantial miscarriage of justice to encompass the principle recognised in Szabo, was stated by Justice Thomas at paragraph 57 of Szabo to be “public confidence in the administration of justice.”

Understood in light of its rationale, in our submission, there was no basis for the court below to hold that, in this case, the Szabo test was inapplicable.  Your Honours will be aware that the relevant part of the court’s judgment is at page 327 of the appeal book, where your Honours will see at paragraph 86 the court does express that test in general terms – although, we would say, wrongly confines the question simply to the conduct of Ms Gobbo, as opposed to considering both the conduct of Ms Gobbo and Victoria Police in enabling that conduct and failing to disclose it.  Then, in the next paragraph, at paragraph 87, about halfway down, just above line 30, the court below said:

Counsel’s failure to disclose the circumstances to his client was held, without more, to have given rise to a reasonable suspicion on the part of a hypothetical fair‑minded person that he may not have acted properly in representing the appellant –

Then simply distinguishes this case from Szabo on the facts, going on to say that there is no parallel.  It has never been submitted that there is a factual parallel with Szabo.  Obviously, the facts are quite different.  Our submission has always related to that general principle about the conduct of Ms Gobbo and Victoria Police, together giving rise to that reasonable suspicion on the part of a fair‑minded citizen that justice had miscarried. 

GAGELER J:   Now, Ms Boston, when we talk about justice miscarrying, we mean justice miscarrying in the course of the trial, do we not?

MS BOSTON:   That is true, your Honour.  But justice miscarried in the course of this trial not just because of the conduct which had been undertaken, but because of the fact that during that trial, Mr Gavanas had no idea that any of this had occurred.  So, his counsel was defending his trial blind, without all of this information that has now come to light. 

Had counsel who had appeared for Mr Gavanas on the trial been walking down Lonsdale Street during the trial and come across a piece of a paper with dot points explaining what we now know to be the case, there is no doubt that witnesses – firstly, there would have been a stay application, inevitably, but had the trial proceeded, it would have proceeded, inevitably, with various witnesses being cross‑examined about the matters which we now know to have taken place.

There would have been applications for the exclusion of evidence, the product of the search warrants, and the surveillance, which were based on affidavits, including information emanating from Ms Gobbo.  There may have been an application to exclude the evidence of Mr Cooper.  So, we accept that there has to be a connection to the trial, and we say that there is clearly a connection to the trial in this case because material materials were not in the hands of the defence which should have been.

In our submission, in this case, the fair‑minded lay observer with knowledge of all relevant circumstances would appreciate these matters, your Honours.  Before representing Mr Gavanas, Ms Gobbo had informed on him to the police.  Before his arrest, she understood that he would ask her to represent him.  Upon his arrest, he did ask her to represent him.  She did then represent him, albeit on one occasion.  She then continued to inform on him and to facilitate Mr Cooper cooperating with police, by making a statement and then giving evidence against him at his trial.

Beyond that, in terms of Victoria Police’s conduct – they had used her as a police informer.  They had stood by while she acted in court for him, they paid him tens of thousands of dollars, and, all the while, failed to disclose any of that to Mr Gavanas or his legal representatives.  In our submission, that concatenation of circumstances would cause the fair‑minded citizen in the position of the applicant to suspect that justice had miscarried. 

I will move, your Honours, to question 2 and the duty of loyalty.  We wish to emphasise something about the facts which may not be apparent from the judgment of the court below, and that is that this case involved breaches or potential breaches, not only owed by Ms Gobbo to the applicant, but also breaches of her duties to other persons.  She had been Mr Cooper’s lawyer, yet she conveyed things to police that he had told her, including things that incriminated the applicant, and she did not disclose to him that she was a police informer when he accepted her advice to cooperate with police.

There is also Horty Mokbel.  Ms Gobbo had checked briefs for him, yet she gave information gleaned from that relationship with Horty Mokbel to police, including information relating to the applicant.  That point of factual clarification is necessary, in our submission, because it reveals that, on taking this case, the Court would have the opportunity to explore the dimensions of the duty of loyalty in the context of different lawyer‑client relationships.

GORDON J:   Do you accept, here, in relation to this administrative hearing, that she was retained only for the administrative hearing?  She did not speak to him, she did not provide legal advice to him, and that all she did was determine the dates of the subsequent hearing?

MS BOSTON:   We cannot accept that, your Honour.  Because of the passage of the time, it is not possible to know with any clarity at all.  What we do know is that she must have been instructed, she must have received instructions at least by the applicant’s solicitor to act for him at the filing hearing, and there must have been communication after the filing hearing between Ms Gobbo and, ultimately, the client, potentially through the solicitor.  So, it cannot be that it has to be that – obviously, one can only act on instructions, and thus the Court may safely infer, from all the circumstances, that she was acting upon Mr Gavanas’ instructions, and then, at the very least, communicated to him what had occurred at the hearing.

We note, your Honours, in terms of the principle, the controversial issues which arise really are twofold, and that is whether the duty of loyalty can survive the termination of a retainer – and your Honours would be aware there is a divergence on that point between Australia and the United Kingdom, but there is also, as we have noted in our application, a divergence of authority within Australia – and there is also the undeveloped question of principle concerning whether in ascertaining whether a duty of loyalty has been breached, one may consider the apprehension of impropriety.  Both of those matters clearly arise in the present case.

GAGELER J:   Ms Boston, in the last sentence of paragraph 47 of the judgment of the Court of Appeal, it was said that:

No authority was advanced to support the proposition that a lawyer acts in breach of a duty of loyalty if he or she informs police of evidence, obtained otherwise than through the retainer of a former client –

Are you able to point to some authority contrary to that?

MS BOSTON:   Yes, your Honour.  Firstly, what the Court of Appeal has said there is correct in that the authorities were not placed before the court below.  In terms of the divergence of authority, we point the Court to the case of ACN Pty Ltd v Suckling (2018) 56 VR 448 at paragraph 65, where his Honour Justice Riordan described the divergence of authority on the point as “plainly unsatisfactory”. We also point the Court to the case of Schmidt [2020] VSCA 193 at paragraph 142, where the Court of Appeal referred to awaiting “a contrary decision by the High Court”.

I may, at this point, move on to question 3, your Honours.  The factual foundation for that third special leave question is uncontroversial.  The Court of Appeal correctly recognised there had been an egregious breach of the duty of disclosure.  The star Crown witness had been receiving payments from Victorian Police for many years, in the lead‑up to

giving evidence.  As the court noted at footnote 5 on page 308, there was also:

ongoing arrangement to make payments for some unspecified period into the future.

None of that was disclosed to Mr Gavanas or his legal team despite its obvious relevance to Mr Cooper’s motivations for giving evidence and for maintaining his account incriminating the applicant.

We note, your Honours, that this case would also give the Court the opportunity of a really, particularly good vehicle, because it would allow the Court to explore these questions, both in terms of the ordinary appeal provisions, the traditional appeal provisions, and also the second or subsequent appeal provisions.  Because your Honours will be aware that the Court reached different conclusions about that leave question in respect of the two charges.  And that is a product of the unusual circumstances in this case where the original appeal was in relation to one charge and not another.

In our submission, this Court’s decision in Baini and the Court of Appeal’s decision in AJ are reconcilable in that the inevitability of conviction is relevant but not of decisive consideration as to whether a substantial miscarriage of justice has occurred as a result of a breach of that duty of disclosure.  The rationale for that principle is obviously that preserving the administration of justice – I will withdraw that, your Honours.  We note that in Mallard v The Queen at paragraph 84, Justice Kirby noted that an occasion of very limited non‑disclosure might not result.

May it please the Court, your Honours.

GAGELER J:   Thank you, Ms Boston.  Mr McWilliams. 

MR McWILLIAMS:   Yes, please the Court.  Your Honours, this was a case which turned and was decided in the court below on its own particular facts and circumstances.  It was not the case, in our submission, that any of the impugned findings were as a result of a misapplication of principle, or a failure to apply relevant principle, but simply they were contestable points, which, on their facts, were decided adverse to the applicant. 

It was well open to the court below to come to the conclusions that it did on the facts before it.  None of the questions raised by the applicant in the application would impact upon the decision of the court below, in our submission, because it was one which was arrived at by reference to its own particular facts and circumstances.

GAGELER J:   What about Szabo?

MR McWILLIAMS:   Yes, Szabo is a good example of that point, in our submission, your Honour.  Therein, the court properly – this is at 319 of the application book, 47 of the judgment below.  Sorry, your Honours, I brought the wrong page up.  Page 327 of the appeal book ‑ ‑ ‑

GAGELER J:   Paragraph 87, is it?

MR McWILLIAMS:   Yes, 87 is the paragraph.  Thank you, I am indebted.  The court acknowledged the ratio of Szabo slightly ahead of line 30, noting:

Counsel’s failure to disclose the circumstances to his client was held, without more, to have given rise to a reasonable suspicion on the part of a hypothetical fair-minded person –

ultimately concluding that could:

constitute a miscarriage of justice.

to adopt the words of the statute.  But plainly, in terms, the court below has set out the ratio of Szabo, but then proceeded – and, in our submission, your Honours, this is really the thrust of where the applicant’s arguments must fail.  The court immediately – and, we say, plainly correctly – went on to distinguish Szabo on its facts with this case.  It is immediately apparent how that could be so, whereas in Szabo, the perceived miscarriage arose in the course of the proceedings themselves – that is, the trial – and concerned the very participants in the trial, whereas here, the applicant was represented by Ms Gobbo some four years prior to his trial in the most limited of circumstances. 

Immediately beyond his arrest, there was not even a brief of evidence available, let alone the opportunity to provide him with meaningful legal instruction, and on the evidence no meaningful legal instruction was provided.  And I interpose here, your Honours, at paragraph 36 of the judgment, which it is at 317 of the application book, the court makes the finding of fact – and this is at the conclusion of the paragraph – that:

This was the only occasion upon which the applicant was represented by Ms Gobbo or received legal advice from her.  Indeed, there is no evidence that she gave any legal advice even on this occasion, or that she and the applicant spoke in relation to the hearing at all.

It is noted that that finding is not under challenge in this application, which seems somewhat at odds with at least part of the oral position which was advocated previously.

In those circumstances, in our submission, it was well open to the court – not on a limitation of the application of principle basis, but simply on the basis of applying, as courts must, relevant facts to the law – to come to the conclusion that notwithstanding the correctness – even allowing for the correctness of the statement of principle in Szabo, and acknowledging it in the very paragraph that is under challenge, it was open to the court to say that this case is a very different case, that it does not rise to the level of engaging with the principle.  It is not an error identifying principle or a misapplication of principle, it is an open and reasonable conclusion on the evidence to say notwithstanding the correctness of the principle, this case simply does not engage with it.

GORDON J:   Is it any more than what is said in Szabo that a question of degree arises in determining the point at which the appearances are sufficiently important to have the same destructive effect as the reality?  In other words – here, this point has not been reached on the facts?

MR McWILLIAMS:   Yes, exactly.  Thank you, your Honour.  We set out that portion of the judgment in the response – it is at 361 of the application book, at paragraph 33 therein, where we extract from Szabo that very paragraph and make the point that the reasonableness of any perception of miscarriage of justice must be informed by the facts and circumstances of any particular case, and that the court itself in Szabo was at pains to make those points, noting that:

a failure to disclose –

of the type in Szabo:

may, as a matter of evidence, provide a basis for a reasonable apprehension of a miscarriage of justice –

the key consideration there must, as almost always is the case, be a consideration of the evidence in one case to another.  As was just noted, it is a pithy summation of this case to say the evidence simply did not rise to meet the application of principle.

GAGELER J:   And what do you say about the duty of loyalty argument?  Is it essentially the same response?

MR McWILLIAMS:   It is.  It is not, we would submit, immediately apparent how the applicant contends that the limited breaches such as the court arguably accepted there may have been, post the filing hearing appearance to give information in relation to a tenuously‑connected debt owed in New South Wales, some touching on issues of whether or not Mr Cooper had evidence relevant to the proceedings – how they could then be said to transpose into substantial miscarriage of justice in the trial itself, the connection between the purported breaches on their face and then – whether they were productive of a substantial miscarriage of justice in the trial has never been explained, in our submission.  There is a reason for that:  because it cannot.  It is in, to borrow from your Honour, of the case, equally one which was determined by its own facts.

GORDON J:   What do you say to Ms Boston’s response to the foot of paragraph 47 about there being no authority and there are authorities addressing that question about the breach of the duty of loyalty in respect of a former client?

MR McWILLIAMS:   I think the point that the court below made – and as I understand the position advanced by the applicant, it still remains the case that no authority was advanced to support the proposition that a lawyer acts in breach of a duty of loyalty when he or she informs police of evidence obtained otherwise than through the retainer of a former client which could be used in the matter against that client.

The court is not, in our submission, saying there could never be a breach of loyalty where a lawyer acts contrary to the interests of a former client as a statement of concluded principle, but what the court is saying – and what is, in fact, the case below – is that no authority could be found or was put forward in support of the proposition that a lawyer acts in breach of any duty of loyalty where they, subsequent to the ending of a retainer, provide police with information regarding evidence of what is said to be criminal conduct which is information that has come to them outside of the scope of a retainer.

So, it is, again, not a question of the court below failing to engage with proper principle, but rather, on the peculiar facts of this case, concluding that the facts and circumstances were not of a sufficient degree to rise to meet the principle.  Noting, of course, that that retainer was really on foot, so to speak, for a single appearance in the Magistrates Court to appear at a filing hearing prior to a brief of evidence being compiled and served.  It certainly must be accepted as being the most limited form of representation one might receive in the course of criminal proceedings which, absent any other questions in relation to those questions, brings us to question 3.

I think my learned friend may have referred to Mr Cooper as the Crown’s star witness in these proceedings in an attempt, perhaps, to amplify the importance of the non‑disclosure in relation to Mr Cooper.  With respect to my learned friend, it is fair to say that is something of an overstatement of the role of Mr Cooper in relation to charges 2 and 3, being the charges that the applicant was convicted of.  In fact, the prosecutor himself, in the course of the trial, effectively told the jury that they might well set the evidence of Mr Cooper to one side altogether, so damaged was his credibility by the end of the case.

Still, notwithstanding the setting aside of the entirety of his evidence, the jury could comfortably reach proof beyond reasonable doubt, having regard to the remainder of the evidence.  Of course, that was the ultimate conclusion of the court below; equally that, setting aside of the evidence of Mr Cooper, it was an overwhelming Crown case and, on the record of the trial conviction, was inevitable.

The court below was right – plainly right – to conclude that this was relevant material which ought to have been disclosed, and the failure to do so represented an error.  But then, of course, the court properly went on to consider – having accepted that there was an error in or in relation to the trial that was capable of affecting the outcome, to have regard to the record of the trial, to set out each piece of the Crown case which was otherwise capable of proving the applicant’s guilt beyond reasonable doubt in relation to charges 2 and 3, and conclude, in relation to the section 326 appeal, that there was no substantial miscarrying of justice because the court had come to a view, having regard to the record of the trial, that conviction was inevitable; and, in relation to the section 326 application for leave, refuse leave on the basis that the evidence was not compelling in the proper sense of the word, given the strength of the Crown case otherwise.

So, again, we return to our submission that this is not a question of principle that needs resolution, this is not a question of the court below misstating, or misapprehending, or misapplying principle, but rather the court, in a contestable space, made findings on the facts well open to it, adverse to the applicant, and it was well open for it to do so in all of the circumstances.  In our submission, leave ought be refused.

GAGELER J:   Thank you.  Ms Boston ‑ ‑ ‑

MR McWILLIAMS:   Can I say, perhaps – your Honour, I should have said at the outset, this is an extension of time case, and I should say formally that we do not oppose the extension of time.

GAGELER J:   We took that to be implicit.  Thank you.  Ms Boston.

MS BOSTON:   Mr Murphy will take the reply, your Honours.

GAGELER J:   Yes, Mr Murphy.

MR MURPHY:   Your Honours, could I just say something briefly about each of the three questions.  On the Szabo question, as we understand the Crown’s position to be emphasised orally, it is that – to take your Honour Justice Gordon’s words – really, this is a question of degree, and Mr Gavanas’ case just falls so outside of the sorts of impropriety or concerns that the fair‑minded lay citizen would have that it is not an appropriate vehicle.

Your Honours, our response to that is, first, there are, we would say, concerning facts on any view about a barrister acting at the commencement of proceedings for a person in respect of whom she has previously informed and then goes on to continue informing in the same proceedings, as well as having a role in turning another key, we say, Crown witness against that person.  But even if your Honours were of the view that this question may, on a proper analysis, perhaps be concluded against Mr Gavanas – that is, he may fall on a question of degree analysis outside of the principle – this is still an appropriate vehicle to explore the question because, at the moment, the Court of Appeal have not engaged in that analysis, and they have simply distinguished Szabo on its facts, as if it only applies to the very peculiar facts of that case.

In my submission, it would be appropriate for this Court, on the whole record, with the evidence, to engage in that analysis.  Just as an example of that, your Honour Justice Gageler asked my learned leader, would it not be necessary to identify a means by which justice may have miscarried.  And perhaps I misunderstood your Honour, but that would really put the Szabo analysis in something of a similar position to the apprehended bias analysis, where one needs to analyse – for example, in the case of extraneous information – how that may have affected the outcome.  Your Honours, respectfully, we would submit that that may well be the analysis required, but it is not the analysis engaged in by the Court of Appeal, and if, on consideration by this Court, that is the appropriate analysis, then it would be appropriate for this Court to offer that guidance. 

To complete my leader’s answer to that question, if we did have to articulate a way in which the fair‑minded lay observer might have apprehended that justice miscarried – obviously that was not specifically done in Szabo, so we did not do it in the Court of Appeal – but if on a proper analysis that was required, we would say that the fair‑minded lay observer might apprehend that confidential, privileged information given by Mr Gavanas – whether through his solicitor, or likely through his solicitor or otherwise – may have subsequently been used by Ms Gobbo against him. 

Now, my learned friend for the Crown is right, that there was no evidence about it.  It was not quite a positive finding by the Court of Appeal.  There was no evidence of it, but that is not a positive finding, it is just an absence of evidence.  Your Honours appreciate that the whole thrust of cases like Spincode is to the effect that even if there is no positive proof of the communication of confidential information between a lawyer and someone acting against a former client there is still a basis to restrain that lawyer from acting merely on the apprehension of the fair‑minded lay observer that there may have been confidential communication provided.

So, in our submission, the absence of positive proof that any substantive instructions have been conveyed to Ms Gobbo at that first hearing would not put the fair‑minded lay observer’s mind at rest for exactly the same reasons that Justice Brooking identified in Spincode, that even if a positive communication of information has not been conveyed it still might be enough to restrain a solicitor from acting, we would say, by analogy to engage the Szabo principle.

Briefly on the duty of loyalty, your Honours, your Honour Justice Gageler asked and I understand it was taken up with my learned friend that there is no authority for the proposition that the Court of Appeal articulate at 47 – well, in our submission, that is simply because of the unique circumstances of this case and Ms Gobbo’s involvement with this applicant and a number of other criminal accused, but the – and it would give this Court the opportunity to consider that issue.

We would also draw your Honours’ attention to – with respect to the duty of loyalty, it is not just Ms Gobbo going on to communicate information about a former client, it is also, at 64 to 65 of the Court of Appeal’s judgment, the fact that after representing him, so after having a retainer to represent him, she – and the Court of Appeal proceeded upon this basis – was instrumental in turning Mr Cooper to be a Crown witness against him.  So, it is not just the case, as your Honour draws attention to, at paragraph 47.  That is not the only factual issue engaged by the duty of loyalty.

May it please the Court.

GAGELER J:   If you have a final point to make on the other ground, you should make it.

MR MURPHY:   Thank you, your Honour.  I will be brief.  It is a one‑sentence point and then a slightly longer one.  In our submission, the Court of Appeal’s analysis of paragraph 100 – whereby it proceeded and seemed to understand Baini as necessarily involving an inevitability

analysis – is wrong, and this Court ought intervene to consider whether this was the sort of fundamental departure from the presuppositions of a fair trial process such as to engage those principles.

A second, more involved point is, with respect, it is no small reframing to try to paint Mr Cooper as some sort of peripheral witness.  It is right that at one point in the Crown prosecutor’s closing address, he said to the jury that you might convict without Mr Cooper, but one might understand why a prosecutor might want to try and hedge their bets.

The more material point, your Honours, is that the learned Crown prosecutor opened his final address by emphasising the importance of Mr Cooper’s evidence, and your Honours see that at application book 246 to 247, where the learned trial judge in his charge reproduces or summarises Mr Champion’s closing and notes that Mr Champion started by emphasising the importance of Mr Cooper’s evidence.  In our submission, he was a star witness, and the failure to disclose in respect of him was significant.

May it please the Court.

GAGELER J:   Yes, thank you.  In our opinion, the prospects of success on appeal are insufficient to warrant the grant of special leave.  There will be an extension of time in which to file the application, but special leave to appeal will be refused.

MS BOSTON:   May it please the Court.

MR McWILLIAMS:   As your Honours please.

GAGELER J:   The Full Court will now adjourn until 10.00 am on Monday 6 November 2023.

AT 1.13 PM THE MATTER WAS CONCLUDED