Hopwood & Byrnes v The Queen

[1998] HCATrans 354

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A28 of 1998

B e t w e e n -

TIMOTHY PAUL HOPWOOD

Appellent

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A29 of 1998

B e t w e e n

MARTIN FRANCIS BYRNES

Appellant

and

THE QUEEN

Respondent

For Mention

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 OCTOBER 1998, AT 3.11 PM

Copyright in the High Court of Australia

__________________

MR T.A. GRAY, QC:   May it please the Court, I appear with my learned friends, MR K.V. BORICK and MR G.B. HEVEY, for the appellants.  (instructed by Haarsmas Lawyers)

MR B.R. MARTIN, QC:   If the Court pleases, I appear with my learned friend, MR R. PERROTTA, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

HIS HONOUR:   Yes, gentlemen?

MR GRAY:   Mr Hevey is going to deal with this matter, your Honour.

HIS HONOUR:   Yes.

MR HEVEY:   Your Honours, the parties have come to an agreement which is a variation of the order that your Honour previously made on 17 September.

HIS HONOUR:   Yes, I have a copy in front of me.

MR HEVEY:   I wonder with my scrawl, whether it would be helpful if I read it.

HIS HONOUR:   No, it is all very legible, thank you.

MR HEVEY:   Okay, your Honour.  Those are the terms of the agreement between the parties, your Honour.  We would ask the orders and the notice to be made in accordance with those terms.

HIS HONOUR:   Yes, all right.  Now, one not totally unrelated matter is that the notice of appeal will obviously have to be drawn, gentlemen.  In listing the issues, I followed Mr Gray’s summary, but issue No 2 is really the most important one, is it not?

MR GRAY:   Yes.

HIS HONOUR:   That is to say, the entitlement of the Director to pursue appeals against sentence.

MR GRAY:   Yes, we will make that the first ground of appeal.

HIS HONOUR:   Yes, I think it might be wise.  The other matter that arises:  I would think that this appeal could be done within the confines of one day subject to any expansion of that that may be needed when it is apparent which Attorneys will be intervening and that may make it go over to a day and a half.

MR GRAY:   Yes.

HIS HONOUR:   Yes, thank you, gentlemen.

The Court orders that upon the undertakings given in each matter by counsel for the appellant, that:

(a)  the appellant attend the office of the Director of Public Prosecutions in Adelaide on Monday, 12 October 1998, and surrender his passport if it not be in possession of the Director of Public Prosecutions at that time; and

(b)  that on 12 October 1998 the appellant sign an undertaking to present himself to the Sheriff of South Australia at the Sir Samuel Way Building in Adelaide at 8.30 am central standard time on the day fixed for the hearing of his appeal and to remain thereafter in the precincts –

is it really the precincts of the court?

MR HEVEY:   I think it is “to remain there or in”.

HIS HONOUR:   Yes:

and to remain there or in the precincts of the court according to the direction of the Sheriff or otherwise directed by this Honourable Court.

Upon those undertakings given in each matter by counsel for the appellant, the Court orders in each matter that:

(1)  The warrant issued by the South Australian Court of Criminal Appeal in South Australian Supreme Court Action No 292 of 1997 which was stayed by order of Callinan J on 21 August 1998 and further stayed by order of Gummow J on 17 September 1998 be further stayed up to and including 5.00 pm central standard time on the day fixed for hearing of the appeal or earlier further order; and

(2)  The sentence be stayed until further order.

And the Court notes in each matter:

(1)  That there is an agreement between the parties that the appellant will be at liberty to apply to the Director of Public Prosecutions for the return of his passport for the purpose of overseas travel and in the absence of agreement between the parties the appellant has liberty to apply to this Court in that respect; and

(2)  The Court also notes that the parties agree that the sentence has not commenced to run.

Is there anything else?

MR GRAY:   No, your Honour.

HIS HONOUR:   Thank you, gentlemen.  I will now adjourn.

AT 3.15 PM THE MATTER WAS CONCLUDED