Grey v The Queen

[2001] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S2 of 2001

B e t w e e n -

ANTHONY STEPHEN GREY

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 19 JUNE 2001, AT 10.18 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please the Court, I appear for the appellant with my learned friends, MR P.J.D. HAMILL and MR T.S. CORISH.  (instructed by Legal Aid Commission of New South Wales)

MR N.R. COWDERY, QC:   May it please the Court, in this matter I appear for the respondent with my learned friend, MR A.M. BLACKMORE.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, this appeal raises questions relating to the disclosure of evidence in the possession of the prosecution in a criminal case.  I understand from the manner in which my learned friend’s submissions have been prepared that the submissions that have been put on behalf of the appellant relating to the desirability of disclosure and the fact that the material that is the subject of complaint in this case should have been disclosed to the defence if it had been known is not disputed.

HAYNE J:   It is put, as I understand it, even higher than that.  As I understand what is said by the respondent, there is no issue that there was a duty to disclose.  What that duty is, what its content is and why, may not be self‑evident but it is said that there is a duty.

MR BYRNE:   Your Honours, my concern is whether your Honours wish that issue to be addressed in the light of the fact that there does not appear to be any contest raised in relation to it in the submissions that have been filed on behalf of the respondent.  The primary issue to which the respondent’s submissions are directed is the question of whether or not there has, in the circumstances of this case, been a miscarriage of justice or, alternatively, whether it can be said that the proviso to section 6 of the Criminal Appeal Act should be applied.

KIRBY J:   Is the appellant nearing the end of his sentence?  Was any application made for bail in this case?

MR BYRNE:   Your Honour, it was, and he was released on bail by the Court of Criminal Appeal in February of this year following the grant of special leave, so that he is presently on bail pending the determination of this appeal.

GLEESON CJ:   Well, so far as appears from the written submissions, the respondent does not want to argue about anything, except whether your client was guilty, which is a very unsporting approach.

MR BYRNE:   Well, your Honours, the question of whether the conviction of the appellant was inevitable, even if this material was available, is one which is in issue.  It would be our submission that the material which was available – and it is extensive material relating to the activities generally of the man Reynolds, upon whom the Crown case against the appellant depended in very significant measure ‑ ‑ ‑

GLEESON CJ:   Mr Byrne, I am not sure I understand at the moment what was, as it were, the point of collision between the prosecution case and the defence case at the trial.  What was that?

MR BYRNE:   It can perhaps best be put this way, your Honour.  The case against the appellant on each of the, effectively, five matters with which he was charged – your Honours are aware there were five sets of charges, each of them relating to an individual motor vehicle; three separate charges relating to each car:  one of stealing the car, an alternative charge of receiving, and one of disposing of it.  The essence of the Crown case in relation to each of those charges and, in particular, the stealing charge on which he was convicted in relation to each of those five motor vehicles, was recent possession.

It was said by the application of the doctrine of recent possession that because the appellant was in possession of a motor vehicle which had recently been stolen, then the inference could be drawn – and these are the crucial, perhaps, words which do mark out the contest between the parties – if the explanation given by the accused person, the appellant in this Court, had not been accepted by the jury as a possible explanation.  In each case the explanation given by the appellant was that he had obtained the vehicle from the man Reynolds, so that the person Reynolds was, according, at least, to the version given by the appellant, placed between him and the time of the theft.  He said through the statement he gave that he was one step removed in the process of possession from the owner of the vehicle from whom it had been stolen.

KIRBY J:   Was his case that he was an innocent dupe to a scheme of Mr Reynolds?

MR BYRNE:   Yes, effectively.

GLEESON CJ:   I would like to understand that a little better.  He was the person who registered all of these vehicles before they were sold to the purchasers, is that right, he or his wife?

MR BYRNE:   It is not right in relation to all of them.  It is right in relation – and just for practical purposes - some of this process of registration was carried out by the appellant’s wife but for practical purposes, if we regard the registration performed by the appellant’s wife was registration done by him.

GLEESON CJ:   I am looking at paragraph paragraphs 10 and 11 of the judgment of Justice Grove on page 424 of the appeal book.

MR BYRNE:   There is, in our respectful submission, an error in what Justice Grove there said.  Sorry, what page was that, your Honour?

GLEESON CJ:   Page 424.

MR BYRNE:   Page 424, I am sorry, your Honour.  At paragraph 10 where his Honour says, line 13:

all five “reborn” vehicles were in fact registered by the time they were sold to purchasers.

That, in fact, is not the case and that is disclosed in the written submissions that have been filed by the Crown.  The vehicle which is known as “vehicle No 2” was not registered at the time it was sold by the appellant to that man in Newcastle who had purchased it.  That is the only one, though.

GLEESON CJ:   So four of the vehicles were registered when they were sold by your client?

MR BYRNE:   Yes.

GLEESON CJ:   None of the vehicles were registered when they were purchased or obtained by your client.

MR BYRNE:   That is right, I think.

GLEESON CJ:   And in paragraph 11 Justice Grove says – and I am not sure I understand exactly what this means – that the process of changing numbers, registration numbers, occurred at the same time as the change in registration status.

MR BYRNE:   I think a distinction needs to be drawn between registration numbers, that is, the process of obtaining what is commonly referred to as a number plate from the registry office.  In four of the five cases that process of registration was carried out by the appellant or his wife, but the process of numbering, which might refer in that context to the identification numbers placed on the vehicle ‑ ‑ ‑

GLEESON CJ:   Is that the engine number?

MR BYRNE:   It may be engine numbers.  It could be chassis numbers, but what are generally described as identification numbers of motor vehicles were in each case changed, changed by a process of removing the original number which was stamped either on the engine or some other component of the car and replacing it with some other number, a fake number in effect.

KIRBY J:   The theory is that it was Mr Reynolds who did that substitution.

MR BYRNE:   It was in each case and the evidence in support of that theory was largely contained in the fact that Mr Reynolds had the equipment and apparently the expertise to perform that function and the appellant did not.

KIRBY J:   I can understand that and the evidence on that seems pretty strong, as I understand it, but what I do not quite understand at the moment is how, let that be established and let it be further established that Mr Reynolds had this letter of comfort, that could advance a proposition of your client’s innocence in the mind of the jury or advance that as a possible theory which the jury could be brought to, which they could not be brought to simply on the basis that Mr Reynolds had some involvement, which is a proposition that your predecessor certainly put at trial.

MR BYRNE:   The important material in that document which has been described as a letter of comfort was the disclosure that the ‑ ‑ ‑

KIRBY J:   He stood to gain a benefit in his trial and apparently did gain a benefit, the difference between a custodial sentence and a non‑custodial sentence.

MR BYRNE:   Yes, that was accepted.

KIRBY J:   But I just do not see how that lifts it up from an involvement that warranted a non‑custodial sentence to an involvement that would have warranted a custodial sentence and that that somehow subtracts from the guilt of your client.

MR BYRNE:   What was available in the new material, the material that was unavailable at the time of trial, was the disclosure that the man Reynolds had information and had assisted police in relation to their investigations into car stealing rackets, as they are loosely described, which were occurring, as it was said, on a widespread basis in the central west of New South Wales.  That was something that was not known at the time of the trial proceedings and that, at least superficially, would have provided the appellant with some valuable lines of inquiry as to the nature of Mr Reynolds’ involvement in the car stealing rackets that were operating on a widespread basis in the central west.

KIRBY J:   I can see its forensic use and there is no doubt about that, but I just do not quite at the moment see how it is a use that could possibly persuade a jury that your client was not guilty of the offences of which he was convicted.

MR BYRNE:   It was necessary for the appellant to give an explanation to the jury for his possession of recently stolen motor vehicles.  The explanation that he gave was clearly rejected by the jury, that is that “This man Reynolds gave me the vehicles.  I didn’t steal them; he gave them to me.  He’s a person who is well versed in car‑stealing rackets”, to put it in crude terms.

GLEESON CJ:   You do not literally mean “gave”, do you?

MR BYRNE:   No, I am sorry – sold.  The appellant obtained them from the man Reynolds as distinct from stealing them.  That was his defence to the stealing charge.

HAYNE J:   That is, do we need to distinguish between each of the elements of the sets of charges?  You said there were three charges per car.  Do we need then for the purposes of the argument to separate our consideration of those?

MR BYRNE:   No, they all fall into the same category, in my submission.  The evidence that might have been available from the man Reynolds, the lines of inquiry that might have been pursued with him, were equally relevant to each of the three charges that related to each individual vehicle.

HAYNE J:   But is a possible outcome, had this evidence been available to the accused at trial, that he would have been convicted of, for example, the disposing counts but not the theft or handling counts?

MR BYRNE:   That is possible.  I have to concede that.

GLEESON CJ:   I am sure that your client did not actually describe himself as a bona fide purchaser for value, but that was the gist of it, was it?

MR BYRNE:   Yes.

GLEESON CJ:   What was the Crown case, what was the prosecution case?

MR BYRNE:   The prosecution case was that the appellant had personally stolen these vehicles.

GLEESON CJ:   But what was the prosecution case as to the role of Reynolds in relation to these vehicles?

MR BYRNE:   The prosecution case was that Reynolds had been used by the appellant as a person from whom motor vehicle identifications could be purchased through purchasing wrecked vehicles which were then later destroyed but their identities preserved and translated to the stolen vehicles.

GLEESON CJ:   So the prosecution case was that your client stole the vehicles and Reynolds rendered services to him in relation to altering the identification?

MR BYRNE:   Yes, and it was the prosecution case that Reynolds’ involvement in that process was entirely innocent, that he was a person who was involved in the motor trade, he had what was described as a car yard in a place called Yennora, which was apparently a district where there was a large variety of businesses associated with the motor trade, and the man Reynolds ran a yard which had the capacity to hold approximately 50 vehicles and he was in the business of buying and selling wrecked vehicles.

KIRBY J:   How could it be entirely innocent if he was the person who was changing the number?

MR BYRNE:   No, it clearly would not have been entirely innocent if he had been that person, but necessarily the Crown case was that it was either the appellant himself, or somebody acting at his direction, who had changed the identification numbers on the stolen vehicles.  The Crown case was that that person, in these five instances, was not Reynolds.

HAYNE J:   Now, what we do not know is how this trial would have been run had before it began the accused had in his possession this material about Reynolds.  In particular, we do not know whether it would have been open to the accused to run a case, “I was simply the disposer, otherwise innocent of theft or receiving, and I was an innocent disposer.  it is all that nasty Mr Reynolds’ fault”.

MR BYRNE:   Well, that was essentially his case in this trial.  His case was unsubstantiated by the material that might have been available to him if this material had been disclosed.

KIRBY J:   It is a bit thin, is it not?  I mean, one could imagine such a case being accepted by the jury with one, and possibly one with his wife, two, but when you get up to five it begins to look like a little business and you have to really magnify by a factor of five the innocence of the dealing.

MR BYRNE:   I accept that and it may well have been that a jury looking at the overall facts of this case and, perhaps to answer a question Justice Hayne put to me earlier, a jury looking at all of this may well have had a reasonable doubt about the question of theft, even the question of receiving the vehicle knowing it to be stolen, but not have been satisfied in relation to the offence of disposal because of the pattern of conduct involved that ‑ ‑ ‑

KIRBY J:   I think Justice Hayne has tendered you your strongest point, which I did not myself perceive in your written submissions.  You embrace that point now, do you?  You say that had only you known this, it would at least have been open to your client to have run a case of disposal or even to have pleaded to a count of disposal.

MR BYRNE:   No, I have perhaps not been clear.  The appellant has never conceded his knowledge of the status of this motor vehicles.  He has never said, “I knew that they were stolen”.

KIRBY J:   Even with five?

MR BYRNE:   Well, the difficulty with this is that it is said that the man Reynolds was aware of – and it cannot be said against him that he was involved in, but he was certainly aware of what was described as a car stealing racket operating on a widespread basis in the central west.  There was a suggestion in the statement made by the appellant in the trial proceedings that his knowledge, that is, the appellant’s knowledge of Mr Reynolds activities, extended to 130 different vehicles in which the appellant was only involved in five, but there was, and it is a rather nebulous body of evidence, a suggestion that there was a very large number of cars involved here and this appellant is said to be involved only with five.  When Mr Reynolds himself was arrested back in 1993 he was personally found to be in possession of eight individual motor vehicles which were all stolen, all his own cars.

GLEESON CJ:   In each case your client was charged in the alternative with stealing, receiving and disposing, knowing it to have been stolen.

MR BYRNE:   The stealing and receiving charges were alternatives.  The disposal was a separate charge.

KIRBY J:   And he was convicted of all three?

MR BYRNE:   No, he was convicted of the stealing charge, which then made the receiving charge negated.  It did not arise for ‑ ‑ ‑

GLEESON CJ:   And what about the disposal charge?

MR BYRNE:   He was convicted of each of those as well.

GLEESON CJ:   So in relation to each car, he was convicted of stealing it and disposing of it, knowing it to have been stolen?

MR BYRNE:   Yes, that is right.  I should say that in relation to one of the cars his wife was convicted of the offence of disposal, not him.

GLEESON CJ:   Now, I think there is a long line of authority that says that the penalty for receiving is at least as great as the penalty for stealing, sometimes greater.

MR BYRNE:   Depending on the circumstances, yes.

GLEESON CJ:   Because the thieves could not work without receivers, so it was not to his advantage in any way to have it demonstrated that he was guilty of receiving rather than stealing.

MR BYRNE:   It may have been, if it could have been established, for example, that he was involved in the receiving offences at only a limited level and that the man Reynolds, and perhaps others, were at a clearly higher level than him and he was being used as the more visible dupe, to use Justice Kirby’s word, in the overall operation.

HAYNE J:   That is a bit of a hard row to hoe if he is convicted of the disposals, is it not?  Conviction on the disposals rather makes it hard to have any plea on the receive or theft charge, does it not, if he is convicted of those?

MR BYRNE:   I am sorry, your Honour.  If he is convicted on the disposal charge ‑ ‑ ‑

HAYNE J:   Yes, and he is convicted on either theft or receiving.

MR BYRNE:   Yes, then he is in it at both ends, as it were.

HAYNE J:   Exactly.

MR BYRNE:   Certainly.  I accept what your Honour says, but depending on the nature of what was proved against him his conduct as a receiver of vehicles or as having a role to play in this operation, if it was proved against him, may have been seen to be less than other individuals involved in it.  The fact is that he was the visible operator in relation to these vehicles where other people, according to the version he gave, were much less visible.

GLEESON CJ:   He was not a motor trader, was he?

MR BYRNE:   He was not by trade, although he was involved in buying and selling cars as a means of making money.  It was a source of income to him.  There was some dispute about his qualifications as a tradesman in the motor trade, whether he had panel‑beating skills and matters of that kind, but he claimed to have no expertise at all.  He just bought and sold cars.

GLEESON CJ:   Was there evidence or did he make a statement about the extent of his motor trading activities apart from these five cars?

MR BYRNE:   He did not say anything specific about his activities.  He simply said that he was involved in these as a means of making money and I think the implication was, and I will stand corrected, that he had done this sort of thing before, that is, bought and sold cars, by buying cars sometimes in a dilapidated condition and doing them up, other times simply buying cars as they were and on‑selling them to other people in different areas where the prices were better.

KIRBY J:   I think you have the reference to that.  It would be helpful to have that on the transcript.

MR BYRNE:   The only reference that the appellant made to his involvement in the motor trade was at page 187 of the appeal book in the course of his statement where he said, alongside line 15, your Honours, referring to something that Mr Reynolds had said:

He also stated that I was a panel beater.  I have never been a panel beater, never had anything to do with a mechanical trade except for selling a few cars, like make a bit of extra money.  That’s the only dealings I’ve had in the motor trade.

KIRBY J:   At any new trial would he be entitled to make a statement or would he be obliged to give evidence?

MR BYRNE:   He would be entitled to make a statement.  The rule in New South Wales is that people who have been charged with criminal offences prior to 10 June 1994 are entitled to make an unsworn statement.

GLEESON CJ:   If there were a new trial, would the prosecution be able to tender his statement at the first trial in its case?

MR BYRNE:   It may be, depending on the ‑ ‑ ‑

GLEESON CJ:   Yes.  So, if any statement he made departed in any respect from the statement he made at his first trial, the prosecution could use that?

MR BYRNE:   Yes, unquestionably.  The statement that he has now made in this trial is, in essence, a form of admission which is admissible against him in ‑ ‑ ‑

GLEESON CJ:   Obviously in practice, he is stuck with it, for good or bad.

MR BYRNE:   Yes.

KIRBY J:   This may not be relevant, but what happened to his wife?

MR BYRNE:   She was, as mentioned, convicted on that single count of disposing of one of the vehicles and she was given a recognizance, if I recall – I think that is right.

KIRBY J:   Was that at a joint trial or was it ‑ ‑ ‑

MR BYRNE:   She was jointly tried with the appellant.  She also faced a charge of disposing of the vehicle jointly with the appellant in relation to the first vehicle, the third count on the indictment.  That was a vehicle which was said to have been disposed of by them together somewhere on the north coast, I think, and she was acquitted of that charge.  So that he bore sole responsibility for that offence of disposal

KIRBY J:   Now, so that I can understand the approach that should be taken, the rule in Mraz and Wilde and the other cases is not that you have to show that you were innocent, but that you have suffered a miscarriage of justice.  There is some elaboration of that in the Court, is there not, to the point that there are some defaults in the conduct of a trial which of themselves constitute a miscarriage of justice.

MR BYRNE:   Yes.

KIRBY J:   Now, can I get that clearly in my mind?  You, I take it, put it on that basis, do you, that the failure to give you this material, which is conceded to have been an error or a default of obligation on the part of the Crown, was itself a miscarriage of justice, or do you say that it led to your losing a real chance of acquittal and that, therefore, it is a miscarriage of justice?  I think Justice McHugh has propounded the first theory, as I remember it, that there are some defaults which, without more, mean you have not had a trial according to law.  You do not seem to pitch your case, in your written submissions, as far as that.

MR BYRNE:   No, we do not.

KIRBY J:   So you accept that you have to show that you lost a real chance of acquittal on at least one of some of the counts?

MR BYRNE:   Yes.  In respect of each of the nine counts on which the appellant was convicted, we would be content, with respect, to rely on the conclusion that is reached in the dissenting judgment of Justice Simpson in the Court of Criminal Appeal.  Can I take your Honours to that, because that is the basis on which her Honour found in favour of the appellant in that court.

KIRBY J:   There were three bases, were there not?  There was the first, the default that you are complaining of; then there was the section of the Evidence Act; and then there was incompetent advocacy.  You rely on the Evidence Act, but do you rely on Birks‑type incompetence, or not?

MR BYRNE:   No, your Honour, no, we do not.

KIRBY J:   So it is the Evidence Act and the default which is conceded by the respondent?

MR BYRNE:   Yes.  Our submission is, essentially, that the failure to provide the material which is the subject of complaint, led to an unfair trial by reason of the use which might have been made of that material.  The use that might have been made of that material, in very general terms, included not only cross‑examination of the witness, Reynolds, but also cross‑examination of the police officer who was the officer in charge of the case.  But, as well, and this is the point which derives from the Evidence Act, if that material had been available to the appellant it would have entitled him to seek, with some greater force than was available to him in the trial proceedings, a direction under section 165 of the Evidence Act, essentially what, in days gone by, would have been an accomplice‑type direction, a direction that the evidence of a person who might be seen to be criminally involved in these offences, should be looked at with caution.

KIRBY J:   Now, Justice Simpson refused leave to argue this under rule 4, did she not?

MR BYRNE:   Your Honour, there was a separate ground argued in the Court of Criminal Appeal that the learned trial judge should have given a direction under section 165, and that is the unreliability - the general warning as to unreliability of the evidence of a witness - by reason of the lack of recollection of the witness, Reynolds, rather than by reason of his apparent involvement in the criminal conduct.

KIRBY J:   Was that the only way at trial it was propounded that he should have given that direction?

MR BYRNE:   Yes.

KIRBY J:   Judge Rummery was a very experienced and very fair judge ‑ ‑ ‑

MR BYRNE:   Certainly.

KIRBY J:   I think if there had been a basis, he would have given the direction.

MR BYRNE:   Yes.  No, it has to be said that the basis for which we now contend, namely that there was material available, particularly in the light of this new material, which would have justified a direction under section 165, by reason of Mr Reynolds’ criminal involvement in these matters, that would have been available if this material had been available.

KIRBY J:   I still do not have in my head why the additional letter of comfort would have lifted the criminal involvement, which involved scraping off the numbers and assisting in the substitution of new numbers, is lifted to a higher plane.  I still do not quite understand that.

MR BYRNE:   On the material that was before the court at trial, there was nothing to link the man Reynolds with offences of car stealing and involvement in car stealing rackets occurring in the central west of New South Wales.

KIRBY J:   But he is scraping off the numbers of the five cars in the central west.

MR BYRNE:   He denied that.  His evidence was that he had no involvement in the alteration of the identification numbers of these vehicles.  His only involvement was in the alteration of identification numbers in relation to apparently large numbers of other vehicles but not these five.

GLEESON CJ:   What was his evidence in relation to these five?  What was he called to prove?

MR BYRNE:   He simply gave evidence that he sold to the appellant wrecks which were used by the appellant as the source of identification numbers.

GLEESON CJ:   So he was not called to prove any dealing by him in relation to these five vehicles.  He was called to prove that he supplied other vehicles whose identification numbers ended up on these five vehicles.

MR BYRNE:   Precisely.

KIRBY J:   Indeed, he would have lost the benefit of the letter of comfort if he had admitted – my reading of the letter of comfort, I may be wrong, restricted him to protection in respect to other crimes.  There was some limitation in expression, was there not?

MR BYRNE:   Well, it is not entirely clear, that the letter of comfort is somewhat obscure in precisely identifying what it was that Mr Reynolds did, and, this, of course, would have been furtile ground for cross‑examination not only of Reynolds but of the police officer, not only in relation to Reynolds’ activities, but more particularly his knowledge of the activity of other people involved in the so-called car stealing racket in the central west.

KIRBY J:   Where is that letter now?  In the appeal book?

MR BYRNE:   That is contained in the appeal book at page 315 volume 2.  Your Honours, the important part of the letter is at page 316 in the paragraph at the top of the page:

At the present time the prisoner is assisting us with our inquiries in relation to the activities of a group in the Central West of this State, involving the theft and conversion of Ford motor vehicles, on a widespread basis.

GLEESON CJ:   But the question is how better demonstration that Reynolds is a criminal lets your client off the hook?

MR BYRNE:   Your Honour, if it was accepted by the jury as a reasonable possibility that Reynolds had, in fact, obtained the stolen vehicles in the course of his involvement in this car stealing racket that was operating in the central west, then that would have supported the version told by the appellant as to how he came by the stolen the vehicles.  On the face of it, it looked implausible that a person who lived in the central west should, coincidentally, as it were, obtain or come into contact with five separately stolen vehicles.  He put forward an explanation, and it was left to the jury simply on the basis that Mr Reynolds had absolutely no involvement, no connection with anything that was going on by reason of car stealing rackets in the central west.

This letter of comfort did not directly implicate him in involvement of that racket, but it certainly disclosed his knowledge of it, and his knowledge of it to the extent that he was able to assist police constructively in their investigation of those matters.  That would have been material that might have assisted.  In our submission, it can reasonably be said it would have assisted the appellant in persuading the jury that it was, at least, a reasonable possibility that the version he gave about how he came into possession of these vehicles could be accepted, and, thereby, displace the presumption that arises with the doctrine of recent possession.

GLEESON CJ:   Did it emerge in evidence apart from the letter of comfort that it was Reynolds who led the police to your client?

MR BYRNE:   No, I do not think it did emerge in evidence.  It may have been the case but it did not emerge in evidence and it certainly did not emerge in evidence that they came to him independently.

GLEESON CJ:   Why would it have assisted your client’s case for it to appear to the jury that it was Reynolds who led the police to your client?

MR BYRNE:   It may have assisted by disclosing that Mr Reynolds was the person who – apart from others perhaps, but Mr Reynolds certainly had the ability to change the identity of the vehicles, whereas the appellant did not.

GLEESON CJ:   But what the letter of comfort would have revealed if it had been in front of the jury was that when Reynolds was apprehended, he in effect did a deal with the police and said, “I will lead you to other people who are involved in this racket, and one of them is Mr Grey”.  How does that help Mr Grey?

MR BYRNE:   It is not entirely clear that it was this witness Reynolds’ evidence that led the police to Mr Grey, although that is obviously a reasonable inference.  There is no direct statement to that effect, as I recall the evidence.

KIRBY J:   It is pretty clear though, is it not?

MR BYRNE:   It may have been indirect.  It may have been that Reynolds led the police to other people who in turn led to this appellant.

KIRBY J:   It sounds a bit fanciful.  Just going back to Justice Hayne’s question, the third count, the steal, receive and dispose:  Reynolds did not ever obtain, to use a neutral word, the vehicles, did he?  Therefore, you could not have been propounding before the jury that it was Mr Reynolds who stole the vehicles or Mr Reynolds who received but your client who innocently or otherwise, perhaps guiltily, disposed of them.  Is that a case that you lost the chance of advancing?  I could understand that the penalty that would be imposed on your client if he were acquitted of stealing and acquitted of receiving but convicted of disposing only would be a lower involvement in the crime of car theft, and therefore he lost a chance of getting a shorter sentence.  That itself would be a miscarriage of justice, I think.  Is that a case that you could seriously have propounded?

MR BYRNE:   It was reasonably possible that if not Reynolds personally, then somebody with whom he was connected had stolen the vehicles, had taken them to Reynolds where their identities were ‑ ‑ ‑

KIRBY J:   Your client actually paid for the chassis and so on, did he not?

MR BYRNE:   According to Reynolds, he paid for wrecks.  According to the appellant, he bought cars from Reynolds in running order.

GLEESON CJ:   Did he have business records in relation to those transactions?

MR BYRNE:   Well, he did in fact.  He had a payment made through a bank account which was associated with the man Reynolds of $3,500.  He had paid $3,500 into Reynolds’ account for a car which Reynolds had supplied to him.

That was completely inconsistent with Reynolds’ version that he had sold him wrecks which would be valued at much less than $3,500.  That $3,500 payment by the  appellant into Reynolds’ bank account did support ‑ ‑ ‑

GLEESON CJ:   That was the only record of these purchases of saleable, but unregistered cars?

MR BYRNE:   I think that is right.  As I recall the ‑ ‑ ‑

GLEESON CJ:   Your client’s case was that he bought these cars, in each case, unregistered.

MR BYRNE:   Yes, that is right.

GLEESON CJ:   Well, that was common ground, according to Justice Grove.

MR BYRNE:   Yes, that is right.

GLEESON CJ:   I am still not sure I understand the meaning of paragraph 11 of Justice Grove’s judgment.  It is his lapse into Greek that is causing my puzzlement.

MR BYRNE:   What I understand his Honour to be saying is that the identity of the vehicles changed at the same time as the registration was effected and that that was something that was solely attributable to the appellant, but the appellant’s response to that is, “Well, I did not have the means of changing the physical identifying marks on these vehicles because I did not have this equipment that is used for that purpose.”

GLEESON CJ:   What does Justice Grove mean when he says that the pattern of movement supports a conclusion that the change in identification numbers occurred at about the same time as the registration?

MR BYRNE:   Well, he may be referring to the fact that it was often soon after these vehicles were stolen that they were, in fact, re-registered under different identities.

GLEESON CJ:   With different identifications?

MR BYRNE:   Yes.  But, because of the nature of the item in question, it was not inconceivable or impossible that these changes might have been made by Reynolds or, as we have said, others acting on his behalf or at his direction or in concert with him.  It is clear that the change in the identification of the vehicles occurred at about the same time, in approximate terms, as the re-registration of at least four of the vehicles, but that does not necessarily indicate that any particular individual was responsible for that change.

GLEESON CJ:   You mean consistent that they could have taken a trip from the central west to Yennora and back to the central west?

MR BYRNE:   That is possible, and it is also possible that Mr Reynolds could have taken a trip out to the central west to change ‑ ‑ ‑

GLEESON CJ:   With his machinery?

MR BYRNE:   To change the identities, yes.  It is not very elaborate machinery, as I understand it; it is a set of tools which - as I read the evidence, they are not actually described, but they are a set of tools which can place identifying numbers on steel.

HAYNE J:   Now there was a deal of cross-examination directed to Reynolds, was there not, about whether he had stamped engine numbers or chassis numbers on cars generally.

MR BYRNE:   Yes, a lot of cross-examination to that effect, and it also should be ‑ ‑ ‑

HAYNE J:   So what I do not understand is, what is the point that could have been made had you known of this document, but was not made?

MR BYRNE:   That it may have been Reynolds or others associated with him who had, in fact, changed the identities of the vehicles prior to them being given to the appellant.

HAYNE J:   Well, was not that the burden of what was being put to Reynolds with this extended cross-examination about his capacity to stamp engine and chassis numbers?

MR BYRNE:   It was in a perhaps less direct way than it might have been if this information had been available.  It was not just, I should emphasise, the information regarding the letter of comfort but there were also a number of other features of Mr Reynolds’ activities which are disclosed in the papers contained in the appeal book, in particular the facts of the charge that he was dealt with and the seven matters that were put on a schedule when he was dealt with by the criminal courts back in 1993.  All of that information disclosed in Mr Reynolds a much more active involvement in car stealing and activities related to car stealing than the general tenor of his evidence in the trial, which is the subject of this appeal.

KIRBY J:   But looking at the matter practically, in a forensic context, your client was walking a tightrope here because to the extent that he was suggesting that Mr Reynolds was the agent of alteration and was most closely involved he was in a way building the prosecution case that they were in it together.  At least that would be a possible inference the jury might draw.

MR BYRNE:   I accept that is open for a jury to at least consider that.

KIRBY J:   That is very relevant to my thinking as to what the marginal utility of this evidence was because if its marginal utility was to make Mr Reynolds more and more involved in the alteration of the identity numbers of the very cars that your client was dealing in, it does tend to suggest that Mr Reynolds and your client had some joint enterprise, something which was confirmed by the payment into the bank account of a sum greater than that which would be paid for mere wrecks.

MR BYRNE:   I suppose the payment by the appellant into the bank account of Mr Reynolds is something that, in one sense, supports the appellant’s version that he was innocently involved because if there was, on his part, known criminal activity, he would be unlikely to leave behind records which could trace that criminal involvement.  He said at all times, “I simply received these vehicles” – and perhaps “received” is a bad choice of words in this context – “I obtained these vehicles from Mr Reynolds and I on‑sold them to other people.  I was being, in effect, used by Mr Reynolds as somebody who was doing his marketing for him out in the open”.

GLEESON CJ:   When you are facing a charge of receiving or an alternative charge of stealing, relying on the doctrine of recent possession, the expression “innocently involved” can be a little ambiguous.

MR BYRNE:   Certainly.

GLEESON CJ:   It would not be an expression that would cover the case of somebody who knew that they had come into Reynolds’ possession in some dubious way but did not know exactly how.

MR BYRNE:   In that situation, if the person was aware of some dubious connection with the motor vehicle, then that would raise questions of wilful blindness.

GLEESON CJ:   Or if the person was aware of certain propensities on the part of Reynolds.

MR BYRNE:   Yes, certainly.  There was not any specific evidence of that.  Outwardly Reynolds had a legitimate business.  He had large numbers of vehicles which were being worked on and dealt with in various ways by him in the course of what appeared to be a legitimate business.

GLEESON CJ:   It was the outward appearance of the legitimacy of Reynolds’ business that was important to your case.

MR BYRNE:   Yes.

GLEESON CJ:   Why did it help your case to show the jury the letter of comfort?

MR BYRNE:   Because it showed that Reynolds was, in fact, a person who was involved in car stealing rackets far beyond what was put before the jury here and which meant that he might have been a person who had supplied these cars to the appellant.  There was evidence before the jury, and it came from Reynolds himself, that there had been some 25 individual transactions involving motor vehicles and motor vehicle parts between Mr Reynolds and this appellant.  Now, it can be presumed that each of those transactions would have been investigated by the police as much as possible.  There was nothing untoward found in relation to the other transactions apart from these five.

So that there was a course of dealing between the two men, the large measure of it apparently aboveboard.  It was only these motor vehicles that involved stolen cars.  The version that the accused put forward was, we accept superficially, one that might be hard to accept.  It is unlikely that a person would be unlucky enough in the space of six months to be connected with, by being used, five stolen motor vehicles.  But it is not inconceivable that that was exactly what Reynolds was doing and his operation appeared to be, according to aspects of the evidence and certainly according to this material in the letter of comfort, it was described as a widespread operation in the central west.  Not widespread within New South Wales but widespread in the central west, suggestions of up to 130 vehicles involved.

KIRBY J:   So what you are really saying is you lost the chance before the jury of propounding the case that Mr Reynolds was a big time car stealer; that if you had had this letter of comfort you could have established that and you lost the chance of trying to convince the jury that you were a small time dealer in motor vehicles who paid money into Mr Reynolds’ account, who only had five and who might be accepted by the jury as a person who was dealing innocently with a crook, and that you were small time people who were trying to make a small amount of money on the resale of vehicles and you should at least have had the chance of putting that case before the jury.

That it might be one that the jury would reject, it might be one that they would accept, but it is not inconceivable they would accept it.  You do not have to prove before us your innocence, you only have to show that you did not have a fair chance to put the best face on the case before the jury.  Is that as high as you can put it?

MR BYRNE:   Essentially, we lost a reasonable chance that might have been open to us that the jury would have regarded the explanation for the appellant’s recent possession as reasonable possible.

GLEESON CJ:   Mr Byrne, I would still like to put this in context.  Selling innocently, one vehicle shown to have been stolen is bad luck, selling five in six months might be careless, but five out of how many?  If they were the only five vehicles that your client had sold during that period of six months, there might be one conclusion you would draw from it.  If, on the other hand, he sold 100 vehicles, which these just happened to be five, you might get a different picture.  If some car dealer in Parramatta Road sold five stolen vehicles in six months, you might think that really is bad luck.

MR BYRNE:   Yes.  Your Honours, can I perhaps take the Court to those references in the transcript which disclose the extent of the dealings between the appellant and this man Reynolds.  I accept that there is not any specific evidence before the Court because the appellant did not give it in his unsworn statement of the overall extent of his dealings in motor vehicles.

GLEESON CJ:   That was I was interested to know.  We do not know what proportion of his car dealing business over this period of six months these five vehicles represented.

MR BYRNE:   Yes, and I understand the difficulty, but can I take your Honours, perhaps, to some aspects of the evidence which deal with, and I emphasise, not the complete extent of the appellant’s involvement in dealing in motor vehicles, but the extent of his involvement in dealing with the man Reynolds.  The first reference, if I may, your Honours, is at page 21 of the appeal book.  This is the evidence of Mr Reynolds himself.  Alongside line 15 the question was put to the witness:

Q.  You have told us about five vehicles that you sold to the accused Tony Grey?
A.  Yes.

Q.  Did you have dealings with him on five occasions or more than five occasions?
A.  On quite a few more than five occasions, yes.

Q.  Are you able to give us an idea about how many more than 5?
A.  No not really but 20 times.

GLEESON CJ:   Is this over that period of six months?

MR BYRNE:   Again, that is not specified, except ‑ ‑ ‑

GUMMOW J:   Line 44.

MR BYRNE:   ‑ ‑ ‑ I was going to say the last line on the page:

Probably a minimum of 12 months but I couldn’t be sure.

Your Honours, the next reference, page 31 of the appeal book, a question put to the witness in cross‑examination, just above line 50:

Q.  See, Tony Grey had been a customer of yours for some time hadn’t he?
A.  He certainly was a customer of mine for a long time.

It goes on further.  Page 66, there is a reference – and this is, again, Mr Reynolds in cross‑examination – alongside line 30, Mr Reynolds saying:

I sold quite a few, quite a few vehicles to Tony, he was a good customer of mine.  I believe this might have been the first whole vehicle I sold him.  I had sold him bits and pieces –

and so on.  There is further reference, your Honours, at page 94 and 95 which does not take the matter any further, other than to establish, again, the extent of that dealing.

GLEESON CJ:   Did your client have any suppliers other than Mr Reynolds?

MR BYRNE:   There is no evidence of that, your Honour, as I recall the statement made by the appellant.  He did not elaborate on the extent of his activities, so that it is simply left on the basis that he bought and sold cars, as he put it, to make a bit of extra money and the extent of the evidence was that he had done that with the man Reynolds on about 25 occasions and these five cars represented, accordingly, about 20 per cent of the transactions in which they had been involved together.

Your Honours, if I can just perhaps go back to a question that was raised about the application of the proviso in this case, our submission is that the majority in the Court of Criminal Appeal have effectively dealt with the case on the basis that it was necessary for the appellant to show that the fresh evidence would have changed the result, or might have changed the result, of the trial proceedings.  On the other hand, the approach that is taken in Justice Simpson’s judgment is to find that there was a miscarriage of justice by reason of the failure to disclose to the defence relevant evidence and that it cannot be said that the result of the trial would inevitably have been the same.  Her Honour has applied the test that was established in the judgment of Justice Fullagar in Mraz’s Case and concluded that the appellant did lose a chance that was reasonably open to him of being acquitted.

KIRBY J:   You seem to back away a little from the branch that Justice Hayne tendered you.  I would just like to get that clear in my mind.  Do you say there was a real possibility that your client might have been acquitted by the jury of the stealing or receiving charge but convicted of the disposal?  Is that a realistic possibility in this case?

MR BYRNE:   Your Honour, what we would say, with respect, is that the case against the appellant on the charge of disposal of the vehicles was a stronger case than it was in relation to the stealing of the vehicles.

KIRBY J:   If that had been the result at the trial, I would think that would carry a lower sentence.  Is that correct or not?

MR BYRNE:   Yes.  Perhaps to pick up on something that was earlier said, if the appellant was only shown to have been involved at one end of the illegal operation, namely the disposal of the vehicles, rather than being involved in the obtaining of the vehicles by theft or receiving, the change in identity of the vehicles and their subsequent disposal ‑ ‑ ‑

GLEESON CJ:   But hang on, there is no doubt that he must have either stolen or received them.  He did not dispose of them merely as an agent, did he?  Your client owned the vehicles when they were sold, did he not?

MR BYRNE:   They varied.  They were in his possession.

GLEESON CJ:   Did he suggest that he did not own the vehicles when he sold them?

MR BYRNE:   It varied according to each individual vehicle, but there is no question that they were in his possession, ownership perhaps put to one side.  They were in his possession when they were sold by him.  Sometimes he said he had purchased them himself and on‑sold them.  Other times he sold them on behalf of Reynolds.

GLEESON CJ:   Well, now, assuming, as you are doing, that he was guilty of disposing of them, knowing them to have been stolen, and that he disposed of them in the capacity – he represented himself to the purchasers to be the owner – how would a conclusion of guilty on count 3 be consistent with innocence on both counts 1 and 2?

MR BYRNE:   Your Honour, it may have been that when the vehicles came into his possession he was not aware that they were stolen, which would have entitled him to a verdict of acquittal on the receiving charge, but that when they were in his possession he became aware of their dubious status, the fact that they were stolen, and then disposed of them.  It is all a question of the time at which he obtained the relevant knowledge.

HAYNE J:   On the case as run at trial were differential verdicts a real possibility?

MR BYRNE:   Not on the way in which the case was run, no.  Although a jury may have been less likely to accept the proposition that this appellant never found out about the status of these vehicles, the fact that they were stolen.  They may be less likely to accept that proposition than they would they proposition that at the time he received them, he did not know of their status as stolen vehicles.  If he received not knowing that they were stolen, became aware of their stolen status and then disposed of them, he would have been entitled to an acquittal on the second charge, but convicted on the third.

KIRBY J:   That would be a more likely possibility with one or maybe two, but once you get up to five that becomes more difficult.

MR BYRNE:   Yes, I accept that.

GLEESON CJ:   Because the theory behind that is that in the case of the first one he bought it from Reynolds; having bought it from Reynolds, he then found out it was stolen, and then sold it knowing it was stolen.  Then he bought another one from Reynolds.

MR BYRNE:   If there was a conclusion in relation to the first vehicle in time that he disposed of it with the necessary knowledge, then, obviously, that would have a damaging impact on the question of his knowledge at the time he received any vehicle subsequently, but I should emphasise, of course, and I appreciate your Honours are all aware of it, that his case was consistent as it affects each of the vehicles and consistent thoughout the time he was associated with the vehicles that he did not know when he came into possession of them or at the time he disposed of them of their stolen status.

Your Honours, there is just one further matter, if I may.  The questions that were asked in relation to the section 165 direction, can I just clarify that at the trial proceedings the section 165 unreliability direction was sought on the basis that the evidence of the witness Reynolds disclosed a lack of recollection, an inability to recall significant aspects of the evidence, the events that occurred so many years ago.  When the matter was before the Court of Criminal Appeal, it was put on the basis that the section 165 direction should have been given on the basis that even on the material that was before the learned trial judge, there was sufficient to conclude that the man Reynolds may have been criminally involved to the extent that an accomplice-style direction should be given.

The position now with all of the extra material, and, in particular, the fact that Mr Reynolds has given evidence to police in the record of interview - that is part of the appeal papers - the facts that were presented in his sentence proceedings and the material in that letter of comfort, that there was a much stronger, and, indeed we would submit, a very strong case for giving a direction under section 165 on the basis that the man Reynolds was, indeed, criminally involved.

KIRBY J:   Yes, but does that take it very far?  First of all, Justice Simpson refused leave to run that point.  I do not quite understand how her Honour did that given her holding on the first point, but what would it have mattered that you got a strong direction from Judge Rummery saying that the jury should look with close scrutiny at the evidence of Mr Reynolds because they might think that he was the mastermind in this?  Even if it had that, would that not have planted in the jury’s mind what one suspects they were already thinking, “They are a pair of crooks.  They are both in it together.  We are not concerned with Mr Reynolds.  We are not trying Mr Reynolds.  We are only trying this man”?

MR BYRNE:   Well, that view may have been open.  With respect, we cannot say that that would not have been open to the jury, but the only basis on which we put it is this, that the explanation that the appellant gave for his possession of these motor vehicles was one which, in effect, implicated Reynolds.  Reynolds’ version of events was, “Well, I had nothing to do with it.  What the appellant says about that is not true and, therefore, you should accept what I say about the truth of the position and rejecting the appellant’s version”.  If the jury had been given a strong warning, as the circumstances, in our submission, justified, about the scrutiny with which they should examine Mr Reynolds’ evidence, the position may have been different.

They may have said, “Well, we are not prepared to accept the word of a person who is criminally involved to rebut the explanation that is given by the accused”.  There was no other evidence to rebut the accused’s explanation apart from the evidence of Reynolds.

CALLINAN J:   Mr Byrne, in the letter at page 316 the two detectives state, in the first paragraph on that page:

the prisoner is assisting us with our inquiries . . . involving the theft and conversion of Ford motor vehicles, on a widespread basis.

You put weight on that, and I suppose you would contrast that with what appears at page 27, where Reynolds said that there were only seven vehicles involved in the charges that he faced.  Is that right?  You say that there is such a contrast that, had the jury known that ‑ ‑ ‑

MR BYRNE:   Your Honour, that evidence on page 27 relates to the charges that Reynolds personally faced.

CALLINAN J:   Yes, I know that, but if you look at page 316, you would think that, although he may only have faced seven charges, he was acknowledging participation in a much more widespread range of criminal activities than seven.  Is that right?

MR BYRNE:   Yes, certainly, your Honour, yes.

KIRBY J:   I still do not understand how that lifts the letter of comfort into something critical to your client, who was only charged with five.

MR BYRNE:   Your Honour, if there was a widespread operation, as the evidence establishes or the new evidence establishes, it went far beyond these five in which ‑ ‑ ‑

KIRBY J:   But what does that matter?  Your client is the only one before the jury.  It is only in respect of his guilt that the jury has to pass its verdict.

MR BYRNE:   It meant that, for a start, I suppose, there were other people involved in a widespread operation involving the theft of Ford vehicles in the central west.

KIRBY J:   But so what, to the extent that that is established that - again, you are on the tightrope.  That makes it the possibility that you are one of this widespread net.

MR BYRNE:   Not necessarily.  It may well have been that the jury looked at it and said there are other people actively involved in stealing Ford motor vehicles in the central west on a widespread scale.  It might have been one of them who stole this vehicle, not the appellant.

KIRBY J:   But your client was the only one in possession of the motor vehicle.

MR BYRNE:   But he obtained possession in each case from Reynolds and Reynolds knew about the racket which presumably involved more than one person, more than Reynolds himself.

KIRBY J:   Now, let me get this clear.  In the five vehicles, my understanding was that your client obtained possession and took it to Reynolds to change the identity of the number plate of the engine.  Is that incorrect?

MR BYRNE:   No, with respect, your Honour.  What the appellant’s case was and has always been that he obtained from Reynolds vehicles in a running condition which it later transpired had had their identities changed, by Reynolds presumably or by people acting with him.  The appellant’s case was, from beginning to end, “I obtained vehicles in a running condition suitable for sale and when I obtained them I didn’t do anything to change their identities.  I didn’t do anything to them at all.”  The things that were done to them were done by other people and one of these other people, it now turns out, is knowingly involved or knows about a widespread racket in the central west involving Ford motor vehicles.  Now that is supported ‑ ‑ ‑

KIRBY J:   Not only that.  Knows about it, was himself, by his own admission, involved in the racket and stood to suffer more serious, and as we know now, a full‑time custodial sentence, and it was in his interest to minimise his involvement and to blame others.

MR BYRNE:   Yes, exactly.

KIRBY J:   But do you agree that by what was described as the unsporting submissions of the director that this is a great case about the proviso and not about due process or the Crown’s duties?

MR BYRNE:   Perhaps it has become so, but there still is a problem because there is a majority judgment of the Court of Criminal Appeal which, if it is not, with respect, corrected, might be seen to be the authority which guides the approach to be taken in cases of this kind.  In our submission, the approach taken by Justice Simpson was, where these circumstances exist, the correct approach, by looking first of all to see whether the failure to disclose the relevant information had the consequence that the trial proceedings were not fair, not looking to see can the appellant demonstrate that if this material had been available to him the result would necessarily have been different.  That really shifts the onus, in our submission.

KIRBY J:   Do you still lay emphasis on a matter which I read in your written submissions, that Justice Grove, by embracing how Justice Simpson dealt with the Evidence Act point, did not really deal with that point in the Court of Criminal Appeal?

MR BYRNE:   Yes.

KIRBY J:   That does not get you far though, does it, because ‑ ‑ ‑

MR BYRNE:   No, it is a criticism, with respect, of the judgment of the majority because it, in our submission – and we say this with respect – discloses that they have not had proper regard to what it was that Justice Simpson actually did.

KIRBY J:   Yes, pretty clearly, she did not have to deal with that because of her determination of the primary point.

MR BYRNE:   Yes.  Those are our submissions, may it please the Court.

GLEESON CJ:   Thank you, Mr Bryne.  Yes, Mr Cowdery.

KIRBY J:   It is not like you to be unsporting, Mr Cowdery.

MR COWDERY:   I am sorry to have deprived the Court of some sport this morning, your Honour.

HAYNE J:   I would not be so sure of that yet, Mr Cowdery.

MR COWDERY:   Perhaps the game has just changed a little, your Honour.  But we would certainly adopt the proposition that this is, in essence, a case about the proviso and not about the Crown’s duty of disclosure, principally.

HAYNE J:   Did that emerge at the leave application?

MR COWDERY:   Yes, it did, your Honour, and that was part of the Crown’s submission at that time as well.  I did not appear.  My learned junior appeared on that application.

HAYNE J:   I understand that.  It was part of the Crown’s submission, but did the Crown then, clearly and distinctly, acknowledge that there had been a breach of duty?

MR COWDERY:   Yes, your Honour, it did.

KIRBY J:   It is pretty hard in the light of your guidelines, which are public and to be applauded, to say otherwise, really.

MR COWDERY:   No, I would not seek to say otherwise, your Honour.  It is perfectly clear, in our submission.  There should have been disclosure; there was not.  The real issue, we would submit, is what consequences flow from that in respect of the conviction of the appellant on these charges and in respect of the way in which the appeal was disposed of in the Court of Criminal Appeal.

KIRBY J:   In any case, you have to show the miscarriage.  You say that is conceded and it is really for the prosecution to affirmatively establish the proviso.

MR BYRNE:   That requires, in our submission, the prosecution being in a position where they can satisfy the Court that the verdict of the jury would inevitably have been the same using the words this Court used in Wilde’s Case, and that simply cannot be said, in our submission, on this material.  We have also referred to an earlier judgment of your Honour the Chief Justice in a case of Frawley, which is a judgment of the Court of Criminal Appeal given in (1993) 69 A Crim R 208.

The particular reference is your Honour the Chief Justice is dealing with the application of the proviso at the bottom of page 223 in the final paragraph on that page and in the top part of page 224, and on the following paragraph on page 224.  It is a very heavy onus which is placed on the prosecution and it effectively has to show that the chances of acquittal on the evidence available were, as your Honour the Chief Justice said, effectively non-existent.  Now, that cannot be said, in our submission, on the facts of this case.

KIRBY J:   Justice Sheller would have applied the proviso in any case.  It just shows minds can differ on these things.

MR BYRNE:   Those are our submissions, may it please the Court.

GLEESON CJ:   Thank you, Mr Byrne.  We will reserve our decision in this matter and we will adjourn to 10.15 tomorrow morning.

AT 3.16 PM THE MATTER WAS ADJOURNED