Hopwood v The Queen, Byrnes v The Queen

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
Applicant
and
THE QUEEN

Respondent

Office of the Registry
Adelaide No A29 of 1998

B e t w e e n -
MARTIN FRANCIS BYRNES
Applicant
and
THE QUEEN

Respondent

Applications for a stay and application for expedition

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 AUGUST 1998, AT 10.04 AM

____________________

MR T.A. GRAY, QC: If your Honour pleases, I appear with my learned friend, MR G.B. HEVEY, for the applicant Byrnes (instructed by Stephen Haarsma) and with my friend, MR K.V. BORICK, for the applicant Hopwood. (instructed by Hume Taylor)

MR C.J. KOURAKIS, QC: If your Honour pleases, I appear with my learned friend, MR R. PERROTTA, for the respondent on both applications. (instructed by the Commonwealth Director of Public Prosecutions)

HIS HONOUR: Yes, Mr Crown.

MR GRAY: If it was convenient to the Court, we were going to suggest that both applications be heard at the same time.

HIS HONOUR: Yes, there is no problem with that.

MR GRAY: If the Court pleases, I read two affidavits. In the Byrnes matter, A29, it is the affidavit of Stephen John Haarsma, sworn 14 August 1998. Now, your Honour, there are ten exhibits to that affidavit and I tender those before the Court.

HIS HONOUR: I have not seen those exhibits. I have read the affidavit. Do we have those in Court? We do not have the exhibits. Are they other than formal documents?

MR GRAY: Your Honour, we suspect it is in the latter category. Your Honour would have seen the reasons from the CCA.

HIS HONOUR: I have read Justice Olssen’s reasons with whom the other judges agreed.

MR GRAY: And our special leave outline, if I can describe it as that, which is about an 18 page document in which our special leave grounds are amplified?

HIS HONOUR: I have not seen that. Do we have that? Yes.

MR GRAY: They form exhibits. They are the principal exhibits that your Honour, I think, would be concerned with. We have a complete set of exhibits available to the Court which we can provide, if that would assist.

HIS HONOUR: That might be convenient, yes, thank you. If you will just give me a few minutes, I will look at these quickly. I wonder if perhaps I just might ask Mr Kourakis a question.

Mr Kourakis, I can give this application a date on 9 October in the Sydney sittings. I do not know whether that affects your attitude or not.

MR KOURAKIS: Your Honour, it will not affect the attitude as to the stay. If the Court has the time available then I am sure, subject to just checking that the DPP can be ready generally, that should not be a difficulty. But as to the question of the stay, the real difference, I think, will come down to, with respect, this, that the Director of Public Prosecutions’ attitude is that the most appropriate remedy, if there is concern about time spent in custody unnecessarily, is bail after the applicants submit to the jurisdiction. If they return to the jurisdiction, they can make their bail application and the time at which the Court and the parties can hear the application will be a relevant factor, amongst others, in any such application.

I think in my submissions the real difference between the parties actually comes down to that and the intimation is that every time they will be helpful but it is likely that there will still be that real difference between the parties as to the appropriate course, being a stay, which will allow the applicants to remain overseas pending the outcome, and the position of the Director which is that, in seeking to take advantage of the criminal appeal processes of the country, they should be here and under its jurisdiction and subject to a bail order, more particularly.

HIS HONOUR: I will tell you what has been exercising my mind. The test, certainly by single Justices of this Court, is a fairly stringent one for applicants, but this case is a little unusual in the sense that the terms of imprisonment are relatively short. If a person were to serve six weeks or something of that order out of an eight months term it is a very high proportion of the sentence if, in fact, the applicant has a success on the application for special leave and the appeal, assuming that there is one.

MR KOURAKIS: If your Honour pleases, the two submissions that are made to that is that the concern about the six weeks being a large proportion of the term can be dealt with by an application for bail. Bail is, with respect, a very appropriate remedy to deal with those circumstances because guarantors can be required, conditions can be set, persons are well aware of the consequences and their responsibilities. It is an important feature of this case, if your Honour pleases, that for a period of about two weeks there were warrants out and issued in South Australia for commitment to serve the sentence imposed by the Court of Criminal Appeal and the applicants remained overseas.

HIS HONOUR: Just repeat that, I am sorry.

MR KOURAKIS: For a period of about two weeks the warrants were issued and out ‑ ‑ ‑

HIS HONOUR: And not stayed?

MR KOURAKIS: Not stayed, and the applicants remained overseas. Given the best of intentions now, and they are expressed in the affidavit of their solicitor, the Director’s position still remains that if they wish to avail themselves of these proceedings, the appropriate thing to do is to return to Australia, make the bail application, and factors such as that raised by your Honour will weigh heavily on any bail application that is made, together with any other important factors that may appear. But it is the remedy for the problem that is the real difference between the Director and the applicants on this application.

HIS HONOUR: Yes. Thank you, Mr Kourakis.

Mr Gray, let me ask you this, and Mr Borick could perhaps consider this also. How long would it take for your clients to return from overseas? Say I were to accede to Mr Kourakis’ submission, if I were - and I have no view about the matter at all at this stage - but if I were to accede to it, it would probably be upon the basis that I would grant a stay for long enough to enable your clients to return from overseas and make their application for bail, and I would impose a condition in those circumstances - and I have not

prejudged the matter, I assure you - in those circumstances I would impose a condition that the application would have to be prosecuted expeditiously and on 9 October.

MR GRAY: Yes. Can I answer your Honour in this way: my client will be ready to prosecute the matter on 9 October or earlier, so there is no difficulty in our giving an undertaking and to prosecute the matter then. In regard to the format, your Honour, there is physically, as I understand it, no difficulty in having either applicant, both applicants, return to the country and to then deal with the bail application. The problem arises in this sense that both of them, as the affidavits disclose, are professional men involved in work, in particular dealing with matters in Russia and in Papua New Guinea and if they come back to this country and remain here as one of the terms of bail, then that would preclude them following through that work. But there is no practical impediment in what your Honour suggests. So that if your Honour, at the end of argument, was minded to the view that the appropriate way to deal with this matter was by hearing in October an application for bail and a date fixed for that and their return by that date, in practical terms, as I understand it, subject to formal instructions, that would not cause any practical difficulty.

HIS HONOUR: All right. Thank you, Mr Gray. I have read the outlines of submissions, by the way. Did you want to say something, Mr Kourakis?

MR KOURAKIS: Just to confirm, if your Honour pleases, that the Director would be in a position to proceed in October. I also wish to make it clear that the Director’s position is that that application for bail should be made before October and pending the outcome of the hearing in October.

HIS HONOUR: Yes, I understand that.

MR KOURAKIS: If your Honour pleases.

HIS HONOUR: Yes, Mr Gray.

MR GRAY: Your Honour, could I also, just in the formalities, read the affidavit of William Fletcher Taylor, that is in regard to the Hopwood matter, also sworn 14 August 1998, and tender the five exhibits attached to that affidavit. Again I inquire from the Court whether your Honour has that document.

HIS HONOUR: I have the document and I have actually seen this one, I have read this one. I have not seen the exhibits. They may be here but again, I think I am familiar with the basic factual background to the matter.

MR GRAY: Thank you, your Honour. If we need to have resort to those exhibits, I have available a copy to tender before your Honour.

HIS HONOUR: Thank you.

MR GRAY: Your Honour, that is the affidavit material on which my clients rely. Your Honour, we accept, as our outline on the stay sets out, that we must show exceptional circumstances. Now, your Honour, there are a number of exceptional circumstances in these matters but there are two that stand out very starkly as being most unusual and very grave. Could I identify both those matters immediately.

The first, your Honour, is that the applicant Byrnes has been sentenced on the basis of a charge on which he was acquitted. In our researches we can say to the Court that that appears to be unprecedented. I will show your Honour on the face of the judgment how that is plainly demonstrable in a moment.

The second exceptional matter, your Honour, that stands out very starkly is that the CCA did not have before it in the record or the books of appeal, application for leave books, the sentencing submissions put to Judge Lunn at first instance. They simply were not part of the record. Likewise, the court did not receive any submissions from the defendants as to penalty in the sense of anything put in regard to, in the light of any review of law, imprisonment against fine, term of imprisonment or suspension, any particular, nothing on suspension.

HIS HONOUR: I had difficulty understanding that because was not the appeal the entire appeal - it was the Court of Criminal Appeal in South Australia, was it not - the entire appeal was an appeal with respect to penalty, was it not?

MR GRAY: Yes. Could I go back just one step. Your Honour is quite correct, the process was in regard to penalty only. But under the South Australian procedure, there was an application for leave. There is no right of appeal on penalty. It was an application for leave. And the requirements of the court in South Australia, following a special ruling of a court of five, is that what is called the Everett principle, Everett v The Queen, is to be strictly applied. The Everett principle has two aspects to it, one of which is the court has an obligation to separately and distinctly consider the leave application.

So both my learned juniors who appeared below, in their written outlines, took the point that they wanted a strict application of Everett and wanted the leave application dealt with separate and distinctly and ruled on, and those written submissions are before the Court. The court announced that it proposed to embark on a different course. That was to hear the leave application and the arguments on the appeal at the same time.

HIS HONOUR: That seems to be a very convenient thing to do because the latter issue, obviously, influences the former, whether leave should be granted, the prospects of ‑ ‑ ‑

MR GRAY: The matter proceeded. The court heard out the argument and then reserved. No indication was given by the court as to what it proposed to do. It had these options: it could have refused leave, end of the matter; it could have granted leave and refused the appeal, end of the matter; it could have granted leave and allowed the appeal and remitted the matter for sentence to the single judge; it could have granted leave, granted the appeal and theoretically sentenced itself. Now, that latter matter would require it, we would say as a matter of simple fairness, to hear submissions in regard to penalty, either by adopting what was said before.....before it or by hearing further submissions or, we would say, both; further submissions in the light of their rulings on the law. They did not have either the earlier submissions or any further submissions. They proceeded to sentence in a vacuum on the sentencing submissions.

Now, we say that represents - and I will come to the reasons why in a moment. That is the fact of the matter. That is what happened. And when Justice Prior in his short judgment says there was no evidence before the court to justify a suspension, he is quite right, because there simply was no material at all put on that topic before the court in any shape or form. So the miscarriage of justice that we say has occurred here is that these men have been sentenced, first offenders, professional men, sentenced to imprisonment in a situation of double jeopardy without the court hearing any submissions as to penalty and, in particular, suspension of sentence. Again, under South Australian law and practice, the court has a paramount duty to avoid a custodial sentence if there is another course open.

So that is why we say this is a very exceptional case. Defence counsel who were there and were not aware of what the court was going to do and had, through their written submissions made their protest, in the sense of saying Everett must be applied, deal with the application for leave. Both the defendants were out of the jurisdiction at the time and not before the court. So we say that that is, with respect, a rather parlous circumstance in the administration of justice. We say a demonstration of that to the court would justify the matter being reviewed by the High Court.

Then the next question is: why did it occur? When we come to the reasons why, if the Court pleases, there are some difficulties and subtleties. If the court, in our respectful submission, had applied Everett, as we say it was bound to do, this could not have happened because the court would have heard leave as a separate and distinct matter, ruled, and then stage 2 would have proceeded on notice that that was what was going to happen. Even if it was a case of adopting the earlier argument, at least there would be a staging.

HIS HONOUR: But I thought you told me that the court indicated that the course that it proposed to adopt, which was to have in effect a rolled-up hearing of both the leave issue and the substantive issue.

MR GRAY: Yes, it did.

HIS HONOUR: So your clients were on notice, rightly or wrongly - rightly or wrongly with respect to the court’s procedure - that that was the procedure the court intended to follow.

MR GRAY: Yes, that is so. That happened on the occasion. Neither of the defendants were in the jurisdiction and the court said they were going to proceed in this way and Mr Borick said, well, if the court has decided, we accept that. It was contrary to the written submission. Mr Hevey was not called on to address that point at all.

HIS HONOUR: But, Mr Gray, with all due respect, this sounds a little bit unconvincing. You knew - or counsel must have known that there was a real prospect that when the Court of Criminal Appeal handed down its judgment the court may then have resolved the Everett question, as it were, against your clients and may have then proceeded - or could be expected then, in view of the intimation earlier, to proceed to penalty.

MR GRAY: Yes. Your Honour is quite correct and this may be counsel perfection. The appeal books, for example, do not have the sentencing submissions in them. So consequently ‑ ‑ ‑

HIS HONOUR: I also have to say to you that at the moment I find a little unconvincing the argument that the Court of Criminal Appeal did not have before it the sentencing submissions to the District Court judge because surely all of those matters were canvassed in the submissions to the Court of Criminal Appeal.

MR GRAY: The answer is they were. There were quite a lot of ‑ ‑ ‑

HIS HONOUR: I hear your junior say that but the fact is your clients were put on notice that they should make submissions with respect to the ultimate issue that was penalty and I presume they did.

MR GRAY: The answer is they did not.

HIS HONOUR: They did not make any submissions at all?

MR GRAY: The submission is put this is a case for a fine, not imprisonment, but nothing was put - perhaps I can pick something of a more neutral topic - nothing was put on the question of the suspension of the sentence, nothing at all, not a word.

HIS HONOUR: It may have been a very deliberate choice. Counsel will often refrain from mentioning a compromise course, which perhaps suspension is, as a matter of tactics. It is better to take a much more robust line and simply say there should be a fine and nothing else. We have all done that, Mr Gray, I suspect.

MR GRAY: Your Honour, can I say this. Your Honour’s comments are, with respect, obviously most pertinent and if need be, they become a critical point, I think there would need to be affidavits filed if they could assist the matter. Could I just perhaps move a little, your Honour, and indicate another problem. There is a decision in New South Wales of Parker v The Queen. It is a Court of Appeal decision. I think Justice Kirby may have presided. We set out the relevant matter in our special leave outline. I do not know if your Honour ‑ ‑ ‑

HIS HONOUR: Let me just find that, Mr Gray. Is this Applicants’ Combined Summary of Argument?

MR GRAY: Yes, it is.

HIS HONOUR: Yes, I have that.

MR GRAY: Your Honour, this particular matter is dealt with on page 6, the detailed argument. It starts at 3.4 and 3.5 is the quote from Parker’s Case. If I could ‑ ‑ ‑

HIS HONOUR: You rely on the words “and expressly on an appeal from a non-custodial sentence”?

MR GRAY: Yes, your Honour. Could I just pass your Honour a copy of Parker. Your Honour would find the reference at page 296 in the judgment of President Kirby as he then way.

HIS HONOUR: What does the South Australian court do about this? What is its practice?

MR GRAY: We are not aware of the matter coming up directly, except in this case where it did not happen, and one of our grounds for special leave is we have an apparent conflict between the CCA in Byrnes and Hopwood and the CCA in Parker. But if Parker’s Case represents the correct statement of the law, then plainly that did not happen. At no time did this court indicate that it was contemplating sentencing, itself, the accuseds to imprisonment. We say that that is, as it were, the starting point in regard to procedural fairness.

HIS HONOUR: What the New South Wales Court of Appeal was dealing with there, of course, was a failure by a trial judge. You are dealing with a different situation. You have a different situation when you have a Court of Appeal which has clearly indicated, I take it, that it wants to hear submissions on penalty. There may be a distinction, Mr Gray.

MR GRAY: Yes. Your Honour, one does get down to perhaps some subtlety, but the argument before the Court of Criminal Appeal, which I have read and instructed about, essentially involved detailed analysis of points of law, mixed law and fact. Most of it was a discussion about the issue of loss and whether loss was sustained at all, whether it had been proved, and the causation and nexus test. The majority of time was spent, for example, arguing about whether interest was a head of loss and the court’s approach to an earlier single judge decision. They were the types of issues being discussed. And the reference to imprisonment and fine gets but barely a mention. There is no doubt that the Crown were there seeking imprisonment, but in terms of the court saying, we want you to understand that we are intending to sentence ourselves and we are contemplating a custodial sentence, that, on my reading and my instructions, did not appear or occur. So, at the pragmatic level, what is put forward by Parker’s Case did not happen.

Your Honour will see, under this particular section, that the matter was compounded a little below because Judge Lunn having heard quite substantial submissions, then said, “I am going to take an unusual course, gentlemen. I am going to announce what I am likely to do and that is a fine, not imprisonment.” In the court below, although matters of imprisonment were discussed and submissions put, on the question of suspension nothing came forward. Indeed, I am instructed - I do not practice in that jurisdiction myself - but I am instructed it is quite often the case that submissions as to suspension occur after the judge has said he is going to imprison. Then the question becomes, well, should it be suspended or not? That just did not happen.

So this case has had a long and unusual and regrettable history and it appears to continue. It seems to be dogged with bad luck. But the fact of the matter is, for whatever reason, CCA has proceeded to imprison without having before it or hearing submissions as to penalty in any substantive way. And we say that - we can talk about the reasons for that - at the end of the day it does represent, for whatever reasons, we would say, a very arguable case in the administration of justice and a very exceptional case.

When one couples that with the court proceeding on the basis that there was a conviction, when there had been an acquittal on a very significant matter, the Court, we would say, would be deeply concerned and we would say this is plainly arguable. October should proceed and there should be a stay until then. That is really our short point, but I do want to develop the other submissions.

Could I just identify to your Honour why we say with confidence that the court proceeded to sentence on a count where there was an acquittal?

HIS HONOUR: Yes.

MR GRAY: If your Honour could take up the reasons of the CCA. I am not sure whether your Honour has those. They are exhibit 1 to Mr Haarsma’s affidavit.

HIS HONOUR: Yes, I have actually read it. Yes, I have that.

MR GRAY: Now, background, your Honour. There were charges against both Hopwood and Byrnes against 229(4) of the Code, this is the South Australian Code, and that was their improper uses of their positions as a director to gain an advantage, and that was an advantage to Jeffcott, and ultimately they were convicted of those following the first High Court hearing. Then Byrnes was charged on two further counts. One count was of furnishing misleading information to directors contrary to 564(1) and the other count, and a separate count, was furnishing misleading information to the Stock Exchange. Now, on the former, ultimately there is a conviction. On the latter, there was an acquittal. So on count 3, misleading the Stock Exchange, an acquittal. On page 1 of the reasons the court correctly identifies the conviction by Byrnes on two offences.

HIS HONOUR: Yes, I see that.

MR GRAY: But on page 2 in the third paragraph the court correctly identifies, “also a conviction of Byrnes pursuant to the third count which is not now relevant”. That is the one where there is the acquittal. It did not interfere with the conviction of Byrnes on the section 564(1).

HIS HONOUR: Whereabouts is that? I am sorry, Mr Gray.

MR GRAY: In the third paragraph on page 2. On 21 April that court ‑ ‑ ‑

HIS HONOUR: Yes.

MR GRAY: And that appears to be identifying the acquittal on the third count at that point. So all, at the moment, no matter for concern. But on page 5 this appears at about point 4 on the page, the paragraph, “The second count about Byrnes related to the furnishing by him of misleading information both to the directors of Magnacrete and the Australian Stock Exchange concerning the Vicksburg arrangement. Once again, it was a deliberate and blatant offence committed by an experienced commercial lawyer. ” That is wrong. The second count was confined to misleading directors. The third count was misleading the Stock Exchange. What the court has done in that paragraph ‑ ‑ ‑

HIS HONOUR: Is run them together.

MR GRAY: It has run them together and as far as the court’s mind is concerned, Byrnes has committed this deliberate and blatant offence of misleading the Stock Exchange.

HIS HONOUR: Are the offences discussed anywhere else later on in the judgment?

MR GRAY: No, thereafter there is simply reference to “offences” and “committed” ‑ ‑ ‑

HIS HONOUR: What I am really asking, is there something which might perhaps be regarded as a cure to that misstatement?

MR GRAY: No, there is not. My learned friends, in their outline, identify at page 12, and that paragraph relevantly appears to pick up a sequence of events, starting at about point 3. The Vicksburg transaction is referred to - or Vicksburg is referred to in paragraph 3, 8 ‑ ‑ ‑

HIS HONOUR: Page 12?

MR GRAY: Page 12. Does your Honour see the section starting, “It is to be remembered”, about point 3 of the page?

HIS HONOUR: I do not know whether I have different pagination. It is a paragraph beginning?

MR GRAY: There is a reference in brackets to a case of Rowlston v Kenny and then there is a paragraph “So it is that, in the instant case”. Then there is a paragraph, “It is to be remembered”. Can I pass your Honour another copy? Does your Honour see the paragraph, “It is to be remembered”?

HIS HONOUR: Yes.

MR GRAY: Now, my learned friends have identified this page and this sets out a sequence of events that unfolded. Your Honour, the charge about the misleading the Stock Exchange related to information touching on Vicksburg. This sequence of events, your Honour, picks up Vicksburg in paragraphs 3, 8 and over the page, paragraph 10. So perhaps I might just explain to your Honour a little about the transaction and the way ‑ ‑ ‑

HIS HONOUR: I think I have a broad understanding of that from the reasons.

MR GRAY: Your Honour, if I might be very brief then. There were two issues of interest to the public. One was a proposed reverse takeover and the other was a convertible notes issue, and the two were linked. Vicksburg played an important part in that process and the Stock Exchange had an interest in it because of their regulatory role in regard to 3J3. This matter triggered 3J3 requirements in regard to takeovers because of conflicts, and they also had received some complaints from the public about matters. They had a regulator’s interest. They called for a report about the facts and that was provided. That report went to this Vicksburg role and what has been described as a joint venture or subadroiting position. So this was a charge that was saying against Byrnes, you have misled not only your fellow directors but you have misled the public through the Stock Exchange. And that is obviously, with respect, an aggravating factor in the circumstances. It is one thing to say there is a dispute, a board of directors, and somebody has acted - the processes are right but the means are not right. That is one thing. It is another thing to say you have misled the public in regard to the - which obviously comes to the correctness of the 80s

This letter was about giving information to the public. Byrnes was acquitted on that. It was said that he had not misled the public. This court proceeds on the basis that he had. Now that is, we say, on any view material and for a justice of the court to describe it as a blatant offence indicates the court has proceeded with the wrong state of mind about the facts.

Now, if that is fairly arguable, with respect, we would say the High Court would be bound to hear the matter fully, bearing in mind that double jeopardy - and this is my client’s only opportunity for review of a custodial sentence imposed for the first time by CCA ‑ we would say that the administration of justice would cry out for the Court to hear and explore this matter.

So that is why we describe those two matters as exceptional. They are most unusual and we say that we make out a strong case on both. Attempts to say in some way that the court watered down the effect of that obvious serious error on page 5 cannot be made out. The Court would have to be left with a grave disquiet about the matter, sufficient to say we have real prospects for special leave in this case.

On the other point, your Honour, I accept entirely your Honour’s comments about what happened in the court below but we say, on the face of it, Parker’s Case and its requirements were not met and that raises a very important and serious matter in the administration of justice.

Can I just say, your Honour, another matter about special leave. It does appear that it is important that if CCAs are going to sentence themselves and put people on double jeopardy on imprisonment for the first time, that it is very important there be clearly established procedures about fairness laid down for guidance throughout the country. It is a very important matter when CCAs do that. Now, I think I would be repeating if I went over those grounds any further.

Could I move, if your Honour pleases, to the other matters. We have said the other matters are not so stark. By saying that we do not say they are any less important. What we have described as the Everett principle and its application, can I just turn to that for a moment. The Everett principle has two aspects to it: the first a separate and distinct consideration of leave; and the second, the test the court applies when it goes about that task. The High Court has said that it is only in the rare and exceptional case that there can be a grant of leave and that that is an obligatory matter.

Now this court, your Honour, the CCA, departed from the Everett test in three respects. It failed to give separate and distinct consideration to leave to appeal. It merged the process over the objection of my learned juniors. It did not impose the test of “Is this one of the rare and exceptional cases?” It imposed a test of “Is this one of the relatively rare”, it added the word “relatively” which must on any view water down the test.

If your Honour turns in the reasons to page 14, your Honour has Everett being referred to in the third paragraph.

HIS HONOUR: Yes.

MR GRAY:

As has been said by the High Court on several occasions it must always, firmly, be borne in mind that applications such as those now before the court necessarily place the respondent in double jeopardy. That being so, leave to appeal ought only to be granted in relatively rare and exceptional cases.

Now, your Honour, there is a difference between “the rare and exceptional” and something called “relatively rare and exceptional”. The word “relevantly” imposes a gloss on the test.

If your Honour looks at the test in Everett your Honour finds it at page 299 at about point 6 on the page:

should be exercised only in the rare and exceptional case.

So our submission, your Honour, is by - the concept of relative to what? The word “relative” must have some work to do.

The third error they make, your Honour, is the phrase “firmly be borne in mind” because that is the language of discretion. You bear it in mind and you weigh it in your discretion, whereas the High Court makes it an obligation.

HIS HONOUR: Whereabouts is that, Mr Gray, in Justice Olssen’s judgment?

MR GRAY: It is at the start of paragraph 3 on page 14.

As has been said by the High Court on several occasions it must always, firmly, be borne in mind that applications such as those now before the court necessarily place the respondents in double jeopardy. That being so -

and then the “relatively rare”. The High Court says at page 299 about point 5:

Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize.....only.....the rare and exceptional -

HIS HONOUR: But that is bearing it in mind, is it not, recognising it? It is fairly semantic, that one, I think.

MR GRAY: If that one is semantic, your Honour, we accept that it is capable of that interpretation, but the word “relevantly”, your Honour, is plainly a gloss.

HIS HONOUR: That is a better point, I think.

MR GRAY: Your Honour, an explanation for what has happened we think lies in a case of Cadd. If I could pass your Honour The Police v Cadd. It is a decision of a special bench of five of the Supreme Court of South Australia. I can confine your Honour’s attention, I hope, to one page which is page 159 in the judgment of the Chief Justice and Justices Duggan and Mullighan agree with his comments and probably the other two do as well. At page 159 the Chief Justice says, about point 3 of the page:

The difference lies in the emphasis in Everett upon leave to appeal being granted only in “the rare and exceptional case”. That requirement appears to impose a further restriction, which presumably applies only when deciding, even on an appeal as of right, whether to interfere with a sentence under appeal.

Then his Honour goes on to suggest that Everett is too harsh.

HIS HONOUR: Yes, I see what you mean. It is really suggesting a different test from the one that Everett imposes.

MR GRAY: Yes. Then at the foot of the page ‑ ‑ ‑

HIS HONOUR: Just let me read this, Mr Gray.

MR GRAY: Yes, certainly.

HIS HONOUR: There does not seem to be any qualification of that kind in Everett, does it?

MR GRAY: No, there is, and ‑ ‑ ‑

HIS HONOUR: And in fact the problem about what the Chief Justice says may be - I am only putting it as a possibility, but it may be that it does not take account of the fact that appeals do not come to us very often, particularly against sentence. The supervisory jurisdiction on sentencing is almost exclusively exercised by State courts and it is to State courts that the principles expounded in Everett are really directed, I would have thought. That seems to be the position, does it not?

MR GRAY: Yes.

HIS HONOUR: In your case, does the Court of Criminal Appeal say anywhere that - do any of their Honours say that they have been influenced by this statement of the Chief Justice?

MR GRAY: Yes, they do.

HIS HONOUR: Where is that?

MR GRAY: Your Honour has the transcript of submissions.

HIS HONOUR: I wonder if you can direct me to it in the reasons - Justice Olssen’s reasons.

MR GRAY: No, not in the reasons. It was put during argument by Justice Prior who was the presiding judge. In the course of argument ‑ ‑ ‑

HIS HONOUR: But look, you cannot get too much out of that, Mr Gray, because there is a debate between you and me which does not reflect in any way at all what I am going to decide or what I may decide in this case.

MR GRAY: The only matter is that what Justice Prior said was, in the course of argument to Mr Martin, who led for the DPP, that “Aren’t we bound by Cadd’s Case?”, and reference is made in particular to Chief Justice Doyle’s remarks.

HIS HONOUR: What did Mr Martin - that is the Director of Public Prosecutions ‑ ‑ ‑

MR GRAY: Mr Martin said that he was not familiar with that but if Cadd’s Case was relevant, obviously it bound this CCA. So what ‑ ‑ ‑

HIS HONOUR: Let me ask you this: is there any indication in the reasons for judgment in this case that the Court of Criminal Appeal - is it the Full Court or the Court of Criminal Appeal?

MR GRAY: It is the Court of Criminal Appeal.

HIS HONOUR: The Court of Criminal Appeal was in any way influenced by Cadd’s Case?

MR GRAY: There are two indications. On the face of the judgment the use of the word “relevantly” has been introduced for a reason and that rather picks up the approach of the Chief Justice. In the course of submissions the presiding judge has specifically referred to Cadd’s Case and spoke in language of it binding this court - that is the CCA in Hopwood and Byrnes matter. We say the use of the word “relevantly” in the judgment is a very clear indication and the court was aware of Cadd because they referred to it specifically during argument. I can take it no higher.

HIS HONOUR: All right.

MR GRAY: In Cadd’s Case, after that quote, your Honour, Chief Justice Doyle does say, at the foot of the page:

Nevertheless, unless the High Court indicates otherwise I consider that this Court must apply the principles in Everett.

Then he goes on to say:

I add that in my opinion ‑ ‑ ‑

HIS HONOUR: Let me just read this. Thank you. Justice McHugh, what did he decide in Everett?

MR GRAY: He gave a separate judgment in Everett, your Honour.

HIS HONOUR: Does he reach the same conclusion?

MR GRAY: He, ultimately, your Honour, I think did, but in the process expressed this - he agreed in the result but in the process had this dicta of no different import.

HIS HONOUR: With all due respect, what Justice McHugh said is undoubtedly right, is it not?

Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction.

MR GRAY: Yes.

HIS HONOUR: I will just read it. I do not know whether Chief Justice Doyle is departing in any way from Everett’s Case, however. His Honour seems to me, at the top of page 159, simply to be debating the question. Then he comes to a fairly clear conclusion, I would have thought, that Everett’s Case applies.

MR GRAY: Yes, but nevertheless we would say ‑ ‑ ‑

HIS HONOUR: You go back to the word “relatively”.

MR GRAY: What he has done, if the Court pleases, is to in effect register, in a sense, a protest in the intermediate court, saying that we see problems with Everett at our level but we are bound by it and it is really inviting, your Honour, a reconsideration, we would say.

HIS HONOUR: And that has been said by other intermediate courts too, Mr Gray, on occasions about the High Court.

MR GRAY: But then, your Honour - I am sorry to trouble you - back to the page again, the last sentence at the foot of the page before the heading:

I add that in my opinion the restrictions expounded in Everett on prosecution appeals do not apply in relation to an appeal against a non-custodial sentence.

Now we say, your Honour, if that is referring to a circumstance where there was a fine below but imprisonment was open, that that is wrong. If it is talking about when the only penalty might be ‑ ‑ ‑

HIS HONOUR: It is talking about the conclusion, rather than the process.

MR GRAY: Yes. Now, your Honour, what could be greater double jeopardy than a fine below and a gaol on appeal. So if one was looking for an Everett case which cried out for protection against double jeopardy, it is that case. What we suspect has happened, and this is surmise, your Honour, is that CCA No 4, the Hopwood and Byrnes CCA, is aware of this, is aware of - that it could be unhappy with Everett and has not applied Everett because it has taken literally the Chief Justice’s last sentence and, as a result, it has imposed this gloss or this new test, the “relatively rare” test - and we say “borne in mind” is a discretion rather than an obligation, and that is the explanation of what has happened.

Now, your Honour, we would say that in terms of prospects of special leave, that is what we have to address at the moment, with respect, that the High Court, we would say, would be attracted by reviewing this matter for two reasons. There is this, if I can say, rumble of concern at the intermediate court level about the way in which Everett might affect their role, but secondly, Chief Justice Doyle in that last sentence is suggesting a restriction that we say is utterly inappropriate.

HIS HONOUR: Do you know - you may not have had time to look at it ‑ do you know whether any other intermediate courts of appeal have expressed views about Everett’s Case? I ask that because, as you know, the High Court, in deciding whether to grant leave, is sometimes influenced by diversity of views in intermediate courts of appeal.

MR GRAY: Our researches, and I do not claim to be exhaustive, have not thrown that up. I did make some inquiries of Queensland counsel and I have been informed that in the Code State that there is a common practice of hearing the leave to appeal and the appeal at the one time.

HIS HONOUR: Yes, that is why I was not surprised in a sense at what happened.

MR GRAY: No. My inquiries indicated your Honour would not be surprised at that.

HIS HONOUR: Of course in the old days, when the High Court itself ‑ when all, I think, appeals - criminal matters were subject to leave, had a practice of hearing, in effect, the substantive appeal at the same time as the application and, in practice, nobody ever got special leave - or rarely got special leave unless they could demonstrate that they were likely to win the appeal. Leave, I think it might have been, then. So it is not a practice that strikes me as odd because the two questions bear upon each other so much anyway.

MR GRAY: Indeed. If the Court pleases, that may be a reason for there being, in a sense, an amelioration of the strict words of Everett, because that certainly, as does Neal’s Case before it, certainly speak of a distinction and separate consideration. Your Honour, it may be that the argument is heard as one, the court then rules on leave and then asks for further submissions in the light of that ruling. And they would presumably be short. But Everett does invoke a discipline of separate and distinct consideration.

HIS HONOUR: But not necessarily separate and distinct hearings, Mr Gray.

MR GRAY: No. But, your Honour, on these reasons, one cannot find any separate and distinct consideration of leave to appeal. It merges in the reasons, as your Honour has seen.

HIS HONOUR: Where do they deal - do they mention leave to appeal, their Honours?

MR GRAY: Your Honour, at page 14 Everett is addressed and then the conclusion is at really page 14, having referred to that paragraph of Everett:

The factors already referred to combine to indicate that the sentencing process miscarried in a manner which demands that this court grant leave to appeal and review the sentences imposed afresh.

So, in one paragraph, they simply wrap the whole lot together and it is difficult to say there was, on these reasons, that there was a separate and distinct consideration.

HIS HONOUR: All right. I will ask Mr Kourakis what the matter of principle was in this case. Not now, but I was just foreshadowing that. I do not want to interrupt you.

MR GRAY: I am indebted to your Honour. Your Honour has our point on Everett. It would be wrong for me to go further. We would say we have established good prospects on that ground for this Court to grant special leave. The remarks of Chief Justice Doyle below, we would say, would be a matter that would greatly interest the High Court and indicate there was some prospect.

Can I move to the next issue and I will attempt to be short, the issue of loss. In the outline of argument, your Honour, the special leave outline, we address this at page 8, paragraph 3.20. The issue arises, your Honour, under the South Australian Criminal Law (Sentencing) Act. Section 10 speaks of a number of matters the court should have regard to and one of those is “any injury, loss or damage resulting from the offence”. That has its comparable provision, I think, in every other jurisdiction. It is in identical terms in the federal Crimes Act.

Now, our first point is that the court failed to interpret the statute or identify the test. What the court did - and your Honour will find this in the reasons at page 11 ‑ ‑ ‑

HIS HONOUR: One of the problems with corporate collapses, of course, is that it can be extremely difficult sometimes to identify with precision not only the quantum of the loss, and if it seems unlikely that it is in fact known, there would be no loss, but also it may be impossible to say that one cause was greater than another. I mean, a corporate change in the financial climate overall, but it might be that a change in the financial climate has caused a particular result in relation to a particular company because that company is especially vulnerable because of what the directors have done.

MR GRAY: Yes. And in a sense Judge Lunn at first instance approached it that way and spoke about a greater vulnerability. He could not identify a dollar loss but he was confident and made a finding there was some loss. The Court of Criminal Appeal found that he, in effect, seriously understated that position. So that is the issue ‑ ‑ ‑

HIS HONOUR: But on any view, Mr Gray, there was a substantial loss as a result of this, was there not?

MR GRAY: We have a debate there, if the Court pleases. It is put in this way, if I could - the charges were confined to some transactions between December and February. The charge in the particulars were a discrete closed period and they described some discrete transactions. Essentially that involved, as far as Magnacrete was concerned, a guarantee and, applying Wardley’s Case, that there was never any loss under that guarantee, never crystallised it, so ordinary common law principles, no loss.

The loss was said to arise from a different transaction in May. The argument for the Crown was that there was a link between the earlier transactions described in December to February and the subject of the charge and this later loss in May. We have a point that we say if you are going to identify and gaol people over loss, you must in some way particularise it in the charge. If you want to say the loss was occasioned months later in different transactions, that must be identified in particulars.

HIS HONOUR: But it is not an element of the offence.

MR GRAY: No, it is not.

HIS HONOUR: It might be right, if the Crown is going to rely upon it as a factor in imposing penalty, for the Crown to have to identify it, I can see that, but if it is not an element of the offence, I do not see why it has to be identified in the information or the charge in any way.

MR GRAY: Can I put it this way. We would like to debate that. We accept that is thoroughly debatable, but ultimately, this is the issue that leads to imprisonment. This is what is critical in the Court of Criminal Appeal’s mind and one would expect, on those circumstances, it to be, we would say, particularised and proved. Now, we accept that on loss there are cases that talk about there is no need for strict evidence. But we say that ultimately there has to be loss proved. There is a vigorous debate below and, ultimately, for reasons we set out, there was no loss proved. But we start off by saying, your Honour, that the CCA did not identify - did not interpret the statute and did not identify the test. The words they used were that they approached section 10 and the words in a “broad colloquial sense”, in a “broad common sense practical overview”. Now, we say that is the language that is not apposite to criminal matters. That is our first point.

Our second point, your Honour, is that in the criminal sphere there is a different test on nexus or causation than civil. In the Royale Case in the High Court, and Hallett’s Case in the South Australian court, the test is one of a substantial or significant and subsisting cause. At common law, March v Stramare, the test is from a common sense point of view was this a cause. Ideas of substantial cause, proximate cause, material, overriding cause are just out.

HIS HONOUR: It is Justice McHugh in Royale who talks about a significant - it might even be significant contributing factor or significant cause.

MR GRAY: The words, I think, are substantial and significant. Now, your Honour, that is not the language of the common law. So we say that this court, that is CCA No 4, did not apply the Royale test. It has applied something else.

HIS HONOUR: I do not know whether you can take it that the High Court has necessarily settled what should be the test in criminal law. There is a matter that has been argued before us from Victoria where there was a very live question and Royale was much debated. It is reserved. I think Justice McHugh - I think another Justice of this Court agreed with him, I am not sure ‑ but I do not know whether the other Justices expressed the same view. Is it the woman who went out the window?

MR GRAY: I am not sure, if the Court pleases. Can I put it this way. I am thoroughly familiar with the common law position and Medlin is a case which I argued in the Court, and when I consider that and contrast it with the language in Royale, I see a distinct difference and my submission is there is a distinct difference. One cannot fit the Royale test and the Medlin and March test together. They are different.

And your Honour, this court, that is CCA No 4, spoke in terms of a broad common sense practical overview and spoke in essentially language of “Was it a cause?”, and it never posed the question, “Was it proven to be a substantial and significant and subsisting cause?”

HIS HONOUR: I just wonder whether the ratio, however, is not at page 12 where the court said:

The important consideration is that the unlawful and improper conduct of the appellants setting in train a series of events which, from the outset, placed Magnacrete at a financial risk which ultimately materialised in a financial loss to it.

Now, if that is the ratio, it may be that identification of a precise amount was not an essential ingredient of the decision.

MR GRAY: We would say that in one sense that is a statement of conclusion. The question is what test has the court applied to reach that conclusion. Has the court asked itself the question, “Was it proven that there was a substantial subsisting link?”

HIS HONOUR: It may not have had to if it satisfied itself - if the judges satisfied themselves that the company was placed in a situation of risk which materialised in a financial loss unspecified.

MR GRAY: Yes.

HIS HONOUR: Anyway, I understand what you are saying.

MR GRAY: So we say that, again, it is not the occasion to be so convinced of our own points to say they are going to win, it is a matter of submitting to your Honour that we have real prospects of success on special leave. We say that this question of loss and the differing tests and the complexities of this matter, we would say, might find itself attractive to some members of the High Court hearing special leave.

HIS HONOUR: Let us assume you are right about that, Mr Gray, and you got special leave. You might not necessarily get bail at that point.

MR GRAY: No, we ‑ ‑ ‑

HIS HONOUR: There are some quite strong statements, they all seem to be single Justice statements, but some very strong statements by, for example, Sir Gerard Brennan in Chamberlain - I do not know whether you have looked at that ‑ which would suggest that in these sorts of matters, his Honour was speaking about bail, you really have to show that your prospects are very good or your prospects are good of ultimately winning, not just of getting special leave but of ultimately winning, that even then your clients could only remain out of prison if it could be demonstrated that their prospects were very good and their rights on appeal would be effectively destroyed. I have not put it precisely, but that is the sort of thing that is said.

MR GRAY: We accept that, and we accept we must show an exceptional case. But could I suggest a ground of distinction between that and other cases and this, your Honour. We are not aware, on our researches, of a case where there has been imprisonment imposed for the first time by the CCA with no other right of review but to come to this Court. Chamberlain’s Case, of course, involved a trial, an intermediate court and then to the High Court.

HIS HONOUR: Some would say that Chamberlain’s Case is not an ornament to the legal system, anyway.

MR GRAY: Yes. And the other cases, your Honour, do not fall into the category of this case where we say this is our only right of review. Now, in the papers your Honour has seen a reference to the Human Rights Convention. I do not want to labour that, but it does suggest that a basic right is for a person to be able to have at least one review of a custodial sentence as a basic right. When we come to the Court and say, with respect, this is a strong case for special leave, we say in the administration of justice this Court would be most loath to not allow a grant of special leave when this is our only opportunity of review. First offenders, professional men, gaoled, and if we cannot have a review, they will be gaoled without any review. In our High Court special leave ‑ ‑ ‑

HIS HONOUR: Just before you do that, can I tell you the passage I had in mind from Chamberlain. It is 153 CLR 514 at page 519:

However the test may be formulated, in practice the grant of bail pending an application for special leave to appeal to this Court will be more restricted than the grant of bail by courts exercising a general statutory power when there is an actual appeal pending.

His Honour then discusses that and says:

But there is another factor of more general and more fundamental significance.....Mrs Chamberlain challenges the verdict upon which her conviction and sentence are founded: if the verdict were to be set aside, the formal conviction and the sentence would be quashed; if the verdict stands, so must the conviction and sentence.

And these are the words:

To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted.

Now, that is a single Justice, but his Honour, in a series of cases, seems to have applied the same approach.

MR GRAY: We say this, if the Court pleases. We take that as a ground of distinction. In the case at bar, your Honour is concerned with nothing that takes away from the verdict. The point that we say Justice Brennan, as he then was, was making was that the stay would ‑ ‑ ‑

HIS HONOUR: I take that point.

MR GRAY: The other point of distinction, in the first passage your Honour read, about the fourth line, the words “where there is an actual appeal pending”. That is our point here, that we do not have an opportunity to appeal and, therefore, this is a very exceptional case. That is our point. It is none the better for being repeated. But we say it is distinguishable for those reasons.

There are two other matters, if the Court pleases. In our High Court special leave outline we say there are a number of other sentencing errors and they are grouped together. I do not want to labour those. They are set out - they really start at page 12, paragraph 3.36. There are some matters of predetermination both by the way the court conducted itself and then by some remarks made, and we have set those out. Even allowing for robust exchanges, your Honour, for counsel to be told that the court does not give a continental is, we say, too much.

HIS HONOUR: But there was no challenge, there was no application to disqualify.

MR GRAY: No, there was not.

HIS HONOUR: And there is Vakauta v Kelly. I must say Vakauta v Kelly always seems to me to be perhaps a little hard on counsel, suggesting that they have to behave a little better than the judge hearing the case, but leaving all of that aside, that appears the law, that you must challenge it, and you must challenge it at an early opportunity.

MR GRAY: Yes. We do not rely on that in isolation but we do indicate that that was a robustness that went too far.

HIS HONOUR: It was just an exchange, was it not?

MR GRAY: Yes. The other sentencing errors then commence at 3.39 page 13. I do not want to stay with those, but one that does stand out as being, we say, a little extraordinary is page 14, paragraph 3.40, suspension. We say that Justice Prior, who was the presiding judge, and in his judgment when he says this rather has reversed the test. The rule is you only imprison as a last resort if you can possibly suspend whereas his Honour has said, “For this offence, suspension is an exceptional circumstance”. And we have set out there the local cases, a case of Reg v Kruger, that puts the correct position.

HIS HONOUR: I thought the judgment was the judgment of Justice Olssen.

MR GRAY: At the end of the judgment there are two short judgments: one Justice Prior, two paragraphs, and one paragraph of Justice Williams. Perhaps, your Honour, on the last page your Honour will find Justice Prior’s judgment ‑ ‑ ‑

HIS HONOUR: Yes, I have read it.

MR GRAY: We just say that that approach of suspension is fundamentally wrong. His Honour has completely reversed the position.

Then could I leave that outline and just raise the final point, your Honour. We say that something new has developed to our attention and it is the authority or the locus of the Commonwealth DPP to initiate the application for leave process. Could I very briefly sketch what becomes a complicated argument. This is an old Code matter ‑ ‑ ‑

HIS HONOUR: Companies Code?

MR GRAY: Old Companies Code, it goes back to 88 or thereabouts. And it is an offence on the face of it against the South Australian Code, a State offence, to be heard in a State court and processed entirely as a State matter. The entitlement to seek leave to appeal on sentence is reposed then, I think, in the Attorney, and later the DPP in the State, by the Criminal Law Consolidation Act of South Australia. So one would say that is entirely, on the face of it, a State matter. How is it that the Commonwealth DPP could prosecute and later seek to exercise an application for leave to appeal on sentence?

HIS HONOUR: It is my impression that the Commonwealth DPP was prosecuting a lot of these matters. That does not make it right, but in fact I think that was happening, was it not?

MR GRAY: Yes. I did not want to delve into the prosecution side at the moment. I am happy to concentrate just on the application for leave to appeal. It could achieve that in one of two ways: either by delegation or in some way as of right.

HIS HONOUR: What happened in Queensland here, a matter that I was in, we were prosecuting State and federal offences and I got a commission from both the State and the Commonwealth to prosecute them. So that I was able then to sign an indictment myself that had both Commonwealth and State offences in it.

MR GRAY: I cannot answer your Honour what has happened here, but when it gets to the appeal stage we have sought particulars from the Commonwealth DPP as to the basis of their authority, and we have asked for any instruments of delegation to be provided, and the answer has been, there are no delegations availed of. What it is said is the Commonwealth DPP as of right can exercise the application to seek leave to appeal. So in terms of the possibilities, we can narrow it down. They have relied in their outline on three sections, and three sections only. They rely on ‑ ‑ ‑

HIS HONOUR: The Judiciary Act, have they?

MR GRAY: Yes, they do. They rely on section 91 of the State Corporations Law, section 9(7) of the Commonwealth DPP Act, section 68(2) of the Judiciary Act and they refer to Rohde’s Case. Now, your Honour, that process is designed to demonstrate that this is a federal offence and that they are entitled to exercise an application to seek leave to appeal because it is a federal offence. That is the logic of that analysis. I want to take your Honour to Rohde’s Case if I could, just to identify in particular the discrete point. I hand your Honour a copy of Rohde’s Case. I am sorry it has been copied on the side and it is slightly small, but the passage I wanted to refer to your Honour is in the judgment of Justice Brennan at page 127 because it encapsulates exactly the point we make, and the other members of the Court do not differ from this. It is the paragraph commencing, “Section 567A(2) of the Crimes Act”.

HIS HONOUR: Yes. Let me just read that passage. Is there any doubt that it was a State offence?

MR GRAY: There is no doubt it was a State offence. The question becomes ‑ there is, your Honour, some deeming provisions that my learned friends had not relied on yet that I can take your Honour to. We are not quite sure how they are going to develop their argument, and so far they have not relied on the deeming provisions. But your Honour would have seen ‑ ‑ ‑

HIS HONOUR: Rohde’s Case does not assist them really. I cannot see that. It is where the Director has instituted a prosecution for an offence against a law of the Commonwealth, he might exercise such rights of appeal. All right, I understand what you are saying.

MR GRAY: It is the words “but it does not purport to apply”. Justice Brennan has drawn the contrast between the Commonwealth offence and the State offence and the critical words are:

but it does not purport to apply to that officer -

that is the Commonwealth officer -

the provisions of the State Act which prescribe the procedure to be followed by the State officer in exercising his power with respect to State offenders.

If your Honour deals with Rohde’s Case, your Honour will find in the other judgments, if I can just indicate to your Honour in the joint judgment of Chief Justice Gibbs and Justices Mason and Wilson, your Honour will find it is replete with explicit references to laws of the Commonwealth. It is at page 123 point 2:

following his conviction in Victoria for an offence against the laws of the Commonwealth.

Next paragraph, about point 5:

indictable offences against the laws of the Commonwealth.

Every judgment, your Honour, is replete in limiting Rohde’s Case to an offence against the laws of the Commonwealth, because what it is saying is 68(2) of the Judiciary Act allows the federal Attorney and the federal DPP the rights to prosecute, and what other rights might exist, if the State court is dealing with a federal offence. But if the State court is dealing with a State offence, not so.

So we say, your Honour, that is the nub of the problem. Now, we have, your Honour, in the light of the correspondence ‑ ‑ ‑

HIS HONOUR: But if that argument is right, where does the - I see what you are saying, yes. If your argument is right, it must apply to the prosecution itself, must it not, that the presentation - is it an indictment in South Australia or an information?

MR GRAY: An information.

HIS HONOUR: It does not matter - the information. Who signed the information in this case? It does not matter. It probably would be an officer of the DPP or Mr Martin himself, perhaps.

MR GRAY: Your Honour, could I say in answer to your Honour that the ramifications of this matter are possibly quite extreme, but very complicated and different sections ‑ ‑ ‑

HIS HONOUR: It might even raise a constitutional matter, you see. You might have to give the notice, and so on.

MR GRAY: It may well. Your Honour, and I might say that we have been wanting the Commonwealth DPP to nail their colours to the mast before we consider the implications of this. But can I say this, that there are different considerations and different sections that can touch the prosecution process from the appeal process - the leave to appeal process. Could I just briefly take your Honour to the way in which the point might develop?

HIS HONOUR: Yes.

MR GRAY: Your Honour, we had provided an additional special leave question and a very short outline of argument which I understand was faxed through to your Honour’s chambers. I can pass your Honour a further copy.

HIS HONOUR: Can I just ask Mr Kourakis something. Mr Kourakis, do you know who signed the information?

MR KOURAKIS: Yes, if the Court pleases. An officer of the Director of Public Prosecutions Office.

HIS HONOUR: The Commonwealth?

MR KOURAKIS: Commonwealth, yes.

HIS HONOUR: Thank you. I would have thought, if your point is good, it would apply, would it not - why would it not apply to the laying of the information?

MR GRAY: Your Honour, our tentative view, if the point is good, it carries right through but I cannot say that there are not different arguments that apply to the laid information, because of the structure of the legislation. But the right to appeal does have some unique features about it - the ability to seek leave to appeal has some unique features about it that makes it stand in a separate case.

HIS HONOUR: Your point in 13 would be relevant to what I have just asked.

MR GRAY: Yes, it is. Your Honour will see that on page 2 we pick up section 45 of the Corporations Act of the Commonwealth. That is not a section that my learned friends have given notice they rely on. We had anticipated they would but they have elected not to. Whether they change their mind, I am not sure, but we expected they will come to rely on section 45.

HIS HONOUR: That is right, is it not, there is a right to trial by jury in respect of a Commonwealth offence?

MR GRAY: Yes.

HIS HONOUR: An indictable offence. This was an indictable offence.

MR GRAY: Yes, it was.

HIS HONOUR: Were you offered a trial by jury?

MR GRAY: Yes. It started as a trial by jury and then changed to judge alone because of illness. A jury person could not cope and ‑ ‑ ‑

HIS HONOUR: The parties by agreement.

MR GRAY: Yes.

HIS HONOUR: And is that possible under South Australian legislation?

MR GRAY: Apparently. Judge Lunn granted an extension of time to apply for trial by judge alone and the matter was dealt with in a consensual way.

HIS HONOUR: Has anybody got Brown’s Case here?

MR GRAY: Yes. I might have given your Honour all the copies, I am afraid.

HIS HONOUR: I will give it back to you in a moment. Only a Court of five in Brown?

MR GRAY: Yes.

HIS HONOUR: It really raising a constitutional question, it is unusual for the Court not to have sat seven, is it not?

MR GRAY: Yes.

HIS HONOUR: Thank you.

MR GRAY: That is your Honour’s copies so they can stay with the Court. Your Honour, the other aspect of the matter that is also perhaps intriguing is that once the Commonwealth, as they have, have nailed their colours to the mast of Rohde’s Case, it follows they must be characterising this as a federal offence. Not only does that point follow, but then the question of what Sentencing Act applies follows. CCA below used the State Sentencing Act. There are, your Honour, attractively similar provisions in the Crimes Act but they are substantially different. When one analyses them carefully, there are subtle but significant differences. I would be happy to take your Honour through those if your Honour think ‑ ‑ ‑

HIS HONOUR: No. It does not strike me as appropriate to sentence somebody under an Act that does not apply, even if there is a substantial identity of provisions. It would hardly seem appropriate.

MR GRAY: But there are some, when one looks at it very closely, quite material differences.

HIS HONOUR: So another point that you have is that, on any view of it, if this was Commonwealth law, a breach of Commonwealth law, they should have been sentenced under the Commonwealth Sentencing Act.

MR GRAY: Indeed. So our argument ‑ ‑ ‑

HIS HONOUR: And they were not, they were sentenced under the State Act.

MR GRAY: Our argument really runs in this way ‑ ‑ ‑

HIS HONOUR: The reference to 10(e) seems to ‑ ‑ ‑

MR GRAY: It is a reference to the State Act. Now, our argument runs this way, that if my learned friends have a right to institute this leave to appeal process at all, it can only be in the circumstances as a federal offence. That is a necessary consequence of Rohde’s Case. If that is right, then other consequences follow and other errors then follow. We go right back to the problem ‑ ‑ ‑

HIS HONOUR: You say it miscarried one way or the other because if it was a federal offence they were wrongly sentenced because they were not sentenced under the federal Act. If it was a State offence the Commonwealth had no right to institute the appeal process and may not have even had a right to institute the whole of the prosecution process. It is very late to be taking that point, but even still it is a criminal matter, and that the right to trial by jury could not be waived.

MR GRAY: Yes. So that is where it leads. Now, I am happy to take your Honour through the principal sections just to identify how the point arises. If that would assist, I can be quite brief about it.

HIS HONOUR: Yes, certainly.

MR GRAY: Your Honour, could I start by passing your Honour a copy of the Criminal Law Consolidation Act. Could I pass your Honour just two pages. It is marked.

HIS HONOUR: There is section 352.

MR GRAY: We give your Honour the text of that section. Your Honour will see that the point we make is it is not the Corporations Law, it is a separate State Act and 352 identifies and draws a contrast between appeals as of right and appeals with leave and relevantly, your Honour, as far as penalty is concerned ‑ ‑ ‑

HIS HONOUR: That is (a)(iii), is it?

MR GRAY: Yes. So what the State legislation makes quite plain, your Honour, is that an application for leave is not as of right. It is in contrast as of right. I am underscoring that, your Honour, for some wording we come to in some later legislation.

HIS HONOUR: You say that the reference to Director of Public Prosecutions there must be the State Director?

MR GRAY: Yes, we do.

HIS HONOUR: And there is a State Director.

MR GRAY: There is a State Director.

HIS HONOUR: Is there a definition of “State Director” or “Director” in this Act, in the Criminal Law Consolidation Act?

MR GRAY: I cannot answer your Honour, I am sorry.

HIS HONOUR: There would be a statute setting out the officers ‑ ‑ ‑

MR GRAY: There is a special State DPP under State statute and we say that this is plainly referring to the State DPP.

HIS HONOUR: All right, yes.

MR GRAY: There is a Director of State Prosecutions Act. Now, I just want to draw the contrast, your Honour, with the language in the State Act of the right to appeal and something less than that, the ability to initiate the application for leave. Now, the next point, your Honour, is section 91, which is the section my friends rely on, of the State Corporations Act.

HIS HONOUR: I had an idea that there was some protocol between the States and the Commonwealth DPP about these matters.

MR GRAY: Yes, I cannot answer your Honour immediately on that. This is the Corporations - and the section your Honour is concerned with is section 91 that appears about four pages from the end. Conferral of functions and powers in relation to co-operative scheme laws. I may have given your Honour the wrong copy. Can I pass another - section 91.

HIS HONOUR: Yes. Let me just read that.

MR GRAY: Your Honour is concerned with 91(1)(a)(b) and with the definition of “enforcement power” under 91(5). Now, your Honour, the enforcement power, we say, does not include seeking an application for leave to appeal.

HIS HONOUR: Why would that not be part of the carrying on of a prosecution of an offence?

MR GRAY: Because, your Honour, the application for leave to appeal on penalty is a matter imposing double jeopardy. One would have to find an express statutory entitlement expressed in clear words and “carrying on a prosecution” we say is separate and distinct to seeking leave to appeal in circumstances where a strict interpretation is required.

HIS HONOUR: But your point is as narrow as that, is it not? I mean, 91(1)(a), the Code was part of the co-operative scheme laws, was it not, the Companies Code?

MR GRAY: Yes.

HIS HONOUR: And (1)(a) confers the same enforcement powers in relation therefore to the South Australian Companies Code on the Commonwealth Director of Public Prosecutions.

MR GRAY: Yes. And, in particular, your Honour, we say that the definition of “enforcement power” does not pick up a circumstance to allow double jeopardy and we rely on those cases of statutory interpretation where the clearest words are needed.

HIS HONOUR: I must say that I would regard the, tentatively, the prosecution - I am just thinking aloud to give you an opportunity to deal with it - but tentatively the prosecution process continues until the matter is finally disposed of.

MR GRAY: Yes. If the Court pleases, I am not in a position to really further debate that with your Honour or take your Honour to authorities but we do respectfully submit that there is - perhaps if I take the next point your Honour might see why we say this. Section 91(1)(b) says:

may, in relation to an offence against a co-operative scheme law, perform the functions and exercise the powers conferred on the Director of Public Prosecutions by the Director of Public Prosecutions Act -

not the Commonwealth -

as if the offence.....were an offence against a national scheme law of this jurisdiction.”

So that takes us, your Honour, to the Commonwealth Director of Public Prosecutions Act in section 9(7), which is a section that my learned friends have identified that they rely on. When your Honour goes to that your Honour will find that specifically deals with the matter of rights of appeal. Can I pass your Honour a copy of the Commonwealth Director of Public Prosecutions Act and I have it open, your Honour, at 9(7). It is an Internet print-out. Your Honour, 9(7) does not actually confer any powers at all.

Where the Director has instituted or taken over, or is carrying on, a prosecution for an offence against a law of the Commonwealth, the Director may exercise in respect of that prosecution, in addition to such rights of appeal (if any) as are exercisable by him otherwise under this subsection, such rights of appeal (if any) as are exercisable by the Attorney‑General in respect of that prosecution.

So in effect there is a linking provision. One must go elsewhere to find the power. Now, the Attorney‑General power is 68(2), the analogy power. So we say that those sections do not enliven a right in the Commonwealth DPP to act in the way that it has. That is the argument.

Your Honour, I am not in a position to detail it all before your Honour now but to identify and say it is fairly arguable. So, your Honour, we would say that your Honour’s point, is the enforcement power wide enough to cover it, when one bears in mind the principle of double jeopardy and the rigorous statutory interpretation, that it would not be read that widely and that, in a sense, your Honour, accepting my learned friends with their reference to 9(7) and then, in particular then to 68(2). So that is the argument.

HIS HONOUR: Yes.

MR GRAY: In terms of identifying the argument and saying to your Honour that that is a matter which might well attract special leave, we say that is the basis of it.

Your Honour, might I look at the cumulative effect of the various points. We say in this case that one can take each of our points one by one and look at the weaknesses of each point and we say when your Honour looks at it in a cumulative way we say that there are good prospects of special leave in this case, sufficient to enliven in the exceptional way the jurisdiction for a stay.

HIS HONOUR: Thank you, Mr Gray. Mr Borick, do you wish to add anything?

MR GRAY: I was leading Mr Borick, your Honour. Your Honour, the argument is put in regard to ‑ ‑ ‑

HIS HONOUR: Yes, I must say I understood them that way. I was not sure whether Mr Borick was separately representing his client. Thank you.

MR KOURAKIS: If the Court pleases. Can I address the particular points which Mr Gray has said warrant a grant of special leave in the order in which they were addressed by Mr Gray.

Your Honour, the first of those points relates to what was said to be an application of the principles in Everett which required a separate hearing and determination of the question of leave, followed by a formal pronouncement that the court was then moving on to the substantive appeal. It is the case that Mr Borick, who was counsel for Hopwood, in his outline asked that the Court adopt that approach and that formal separation of functions determining leave, then proceeding with the substantive appeal. However, right at the commencement of the hearing of the application the court said that it would proceed on the basis that it hears both together. Mr Borick specifically accepted that course as the course that would be followed and the acceptance by Mr Borick went without any contrary submission or protest by Mr Hevey then appearing for Mr Byrne. So in so far as there was any complaint that the formal functions should have been separated, then it is simply the case that the court has from time to time, including in this case, accepted as a matter of convenience hearing both matters together. That was specifically adverted to and finally accepted.

Your Honour, it is the case that the sentencing submissions before ‑ the transcript of those submissions before Judge Lunn were not in the appeal books and therefore not before the Court of Criminal Appeal. That did not stop counsel for the applicants canvassing all those matters which appeared simply from the face of Judge Lunn’s sentencing remarks, which were in the appeal book, which went to the question of whether the penalty of the fine was appropriate. It was a case where, with respect, two experienced counsels pitched their arguments on the basis that nothing other than a fine was necessary and therefore did not enter into the question of imprisonment or suspension. But it must have been well known to them that that was the question the court was considering, the procedure having been made clear at the outset, and the very application of the Director, of course, requiring or asking a custodial sentence, as did the outline.

HIS HONOUR: The Director expressly asked for a custodial sentence?

MR KOURAKIS: Yes, that was what was being asked for. If your Honour pleases, in the end, even in the submissions that were in the summary of argument made to this Court, all the submissions about suspension really come down to this, that given their previous good character, no other option but suspension was realistically available. But of course the good character was accepted all the way through, accepted by Judge Lunn, taken for granted as it is taken in the Court of Criminal Appeal, that the obvious point made that it is in offences of this kind that you will quite often find persons of good character, so it has a very limited ‑ ‑ ‑

HIS HONOUR: I must say I tend to find that a bit unconvincing. I mean it is almost like paying lip service to good character, is it not, in a sense? If good character means anything, it must mean something in all cases, I would have thought.

MR KOURAKIS: Having stood on both sides of the bar table, if your Honour pleases, I understand precisely what your Honour means about that comment, but all it is in the end, with respect, is a reflection of the attempt and where the balance comes down in balancing the deterrence necessary for these sorts of offences, both personal and general, when one comes to consider good character and it just that for those reasons it has the more limited effect in cases such as this.

But in any event, if your Honour pleases, for the purposes of the submissions I make, the submission is that it was the good character that ought to have led to suspension. That was well known to the Court of Criminal Appeal before it and taken into account. I should also say that in the course of submissions, as one might expect, there were therefore submissions about matters of antecedence and the like, both by counsel for the applicants and there were specific submissions by the Director of Public Prosecutions who appeared on the appeal, as to why imprisonment was necessary.

Your Honour, associated with the point about Everett and the nature of the hearing, there is a submission that procedural fairness was denied because the Court did not announce formally that it had granted leave and was therefore considering imprisonment and, accordingly, procedural fairness was denied in not requesting submissions on at least the particular question of suspension or not. Parker’s Case was relied on for that.

Your Honour, Parker’s Case was a case where a prisoner appealed to the County Court - I think it was the County Court - in any event the intermediate court there for review of a sentence imposed by the magistrate of the court at first instance, complaining that the sentence was excessive. The County Court interfered on the appeal but not to reduce the sentence as the prisoner had requested, but in fact to increase the sentence. The first inkling, as his Honour Justice Kirby pointed out in Parker, that anyone had that that is what the County Court was about to do was when the increased sentence was in fact pronounced.

HIS HONOUR: Yes, there is a case that went to the High Court from Queensland where the same thing ‑ ‑ ‑

MR KOURAKIS: Neal’s Case.

HIS HONOUR:Neal, the Aboriginee spitting case, I think it was.

MR KOURAKIS: It was simply that principle that was applied in Parker. That, of course, is very different to the case where the appeal is in fact one taken by the Director of Public Prosecutions seeking a more severe penalty and, accordingly, placing everybody on notice that that is what is sought and that is the matter that the court has to consider. Those differences and distinctions to which I have referred are made clear in, without taking your Honour to it, the judgment of President Kirby at pages 294 and 295 of the report in ‑ ‑ ‑

HIS HONOUR: Let me just find that again, Parker. Which page?

MR KOURAKIS: Page 294 from the foot of that page over to page 295. Your Honour will see the reference to Neal’s Case at the top of page 295. Your Honour, about halfway down that page at the paragraph numbered 2 the specific difference and distinction between increasing the sentence on the prisoner’s appeal and the case of an appeal by the prosecuting authority is drawn.

HIS HONOUR: That has to be right. The Director of Public Prosecutions comes along and says there should be a custodial sentence. It is all a question of notice. Once the Director or his counsel comes along and says that, then it must be at least a live possibility that that submission will be preferred to the submission of the respondent. I presume it is in the grounds of appeal and the notice of appeal. Do you have to set out orders sought in the notice of appeal?

MR KOURAKIS: No. It was not to the extent of orders sought, but it was clear that a custodial ‑ ‑ ‑

HIS HONOUR: A custodial sentence would be appropriate, something of that kind. In any event, you do not need to show me that. Once you tell me the submission was made, you make your point.

MR KOURAKIS: Your Honour, my submission is this, that it was clear that the Director was seeking a custodial sentence because only a custodial sentence would be appropriate for this sort of defendant. Once you have that, and then you have acceptance of the procedure where both leave and appeal would be heard together, then in effect what the applicants ask is that this Court give them a second chance over the course which their experienced counsel decided to adopt. In my submission, with respect, leave should simply not be granted for that.

Your Honour, just two brief incidental matters which are raised as to that. It is said that it was compounded because Judge Lunn advised that he was not considering a sentence of imprisonment. In fact he advised that quite some time after much of the submissions had been made, if not all of them, as far as I am instructed. But, in any event, that really comes to nothing because ‑ ‑ ‑

HIS HONOUR: How is Judge Junn’s view about the matter relevant, once it goes to - when I ask that, I should prefix it by saying that weight is, of course, accorded to the views of the primary sentencing court but, beyond that, the discretion is completely at large in the appellate court.

MR KOURAKIS: In any event, the submissions before Judge Lunn were before the Court of Criminal Appeal. The applicants by their counsel knew what they faced. It was for them to place the material or rely on such material ‑ ‑ ‑

HIS HONOUR: To make their own tactical judgments, perhaps.

MR KOURAKIS: If your Honour please, that is right. There is a suggestion, your Honour, that the Court of Criminal Appeal in the outline had a practice of requiring respondents to a Crown appeal to be present if they were contemplating sentence.

HIS HONOUR: Look, I am not impressed by that at all because notice has been given and no doubt there is reference in the submissions to the appeal court, what, to other cases in which custodial sentences had been imposed?

MR KOURAKIS: That is how Mr Martin closed, your Honour, by referring to such cases. In any event, the existence of such a practice is disputed. There would be a dispute about that if it came to it but, in my submission, for the reasons that I have just put it is not necessary even to go to that.

Your Honour, I next turn to the next complaint made which is to do with what is said to be a watering down of the Everett principle. Can I first deal with the suggestion that the Chief Justice watered down effectively Everett in Cadd’s Case.

HIS HONOUR: I think that is very much open to question, having regard to Chief Justice Doyle’s remarks lower down on the page where he says that the court is bound by Everett and, in any event, I am not satisfied that there is any linkage between what the Chief Justice said and what the Court of Criminal Appeal here did. There is no reference to that case. There is no reference to what Chief Justice Doyle said.

MR KOURAKIS: Your Honour, I might just inform your Honour of this. The exchange that my learned friend, Mr Gray, would have relied on was in fact an exchange about precisely your Honour’s inquiry as to whether another Court of Criminal Appeal had spoken about the application of Everett. There was such a case, a case of Barbaro from New South Wales where the Chief Justice had spoken about the application of Everett and it was the principles enunciated by the Chief Justice with whom Chief Justice Gleeson agreed in that case.

HIS HONOUR: Mr Kourakis, could I tell you what some of my tentative thinking is. The matters that are exercising my mind are that I think Mr Gray’s distinguishing of his Honour Sir Gerard Brennan’s remarks in Chamberlain and a number of other cases that followed - I think the distinction was well made by Mr Gray in this case and I would not feel so constrained in the same way as Justice Brennan was in Chamberlain and in that series of cases because of the points that Mr Gray has made on that issue. So that is exercising my mind.

I cannot see any basis for saying that the court was influenced by Chief Justice Doyle’s remarks even if I were to accept, which I do not, that his Honour was intending to depart at a State level from Everett’s Case. I am not greatly vexed by the use of the word “relatively”. I certainly do not think anything turns on the absence of the submissions from the appeal book, the submissions that were made to the District Court judge. I do not think anything turns upon the fact that the appeal court did not adopt a two‑stage process.

But I am concerned about the matter that I have just put to you. I think the distinction was well made and I am concerned about the shortness of the sentence and if in fact - and I have formed no view at all at the moment about the prospects of success of the application for leave to appeal ‑ but if it succeeded, I am very concerned that a person might end up serving a quarter or even a fifth of a sentence and then it be found out later that he should never have served any sentence at all. Now, I am not prejudging the application or anything of that kind, but it hardly seems to me to be in the public interest. It seems to me to be just adopting far too rigid an attitude. Can you apply your mind - I do not want to interrupt you if you think there are other submissions that you need to address to Mr Gray’s point. I think I have covered most of them, have I not?

MR KOURAKIS: Yes, your Honour.

HIS HONOUR: Was there anything else that - only the final point, the constitutional point, I think.

MR KOURAKIS: I might make some brief submissions about that.

HIS HONOUR: Yes, do that, if you do not mind.

MR KOURAKIS: The only other matter was really the test of causation. In my submission, in the end that would come down to a review of the evidence and a very strong finding of causation was found by the sentencing judge at any event. Although it is clear that the onus of proof must be different when one is dealing with a criminal statute as against a civil matter, the test of causation is still meant to be a common sense one, rather than a ‑ ‑ ‑

HIS HONOUR: I must say I was impressed by Mr Gray’s submission as to the distinction but I wondered whether it fell down, accepting that, - if I were to accept it - whether it fell down when you looked at the sentencing remarks by the Court of Appeal because it seemed to me that the emphasis was upon the exposure to financial risk as much as to, or perhaps even more than, the actual quantum of the loss.

MR KOURAKIS: That is a factor which makes the quantification, with respect, not as important and not really as to the point in cases of corporate collapse ‑ ‑ ‑

HIS HONOUR: It is so difficult in some of these cases. I mean, it might depend upon how diligent a liquidator is, the market can change, assets that people thought were worth a great deal of money, and sometimes, not by reason of any fault on the part of the people who are convicted, but change in the value of assets can occur. I suspect precise quantification in these sorts of cases is almost always impossible, which is a factor your way as much as it is Mr Gray’s way. It does cut both ways.

MR KOURAKIS: Yes. If your Honour pleases, there is the further submission that would be made and that is that the more stringent test for deciding causation in homicide will not necessarily be applied as the test for causation in a sentencing statute which requires the court to have regard to loss. And that is still another point of course that would, in my submission, be a difficulty in the way of Mr Gray.

Your Honour, can I deal with the first of the matters that your Honour asked me to address, being the Chamberlain matter. Can I make this first submission, your Honour. Intuitively it is easy to understand the concern that any court would have that because the sentence is short, by the time the appeal is heard it would in effect have been served but, on another level, the real concern is that any person has spent any length of time in custody unnecessarily.

HIS HONOUR: It is to be discouraged, is it not?

MR KOURAKIS: That is right. But with respect, your Honour, the same problem occurs when someone is serving a sentence of 20 years as a non‑parole period for murder complains that their conviction was wrongly imposed.

HIS HONOUR: The appeal process in that case is probably going to occupy perhaps a twentieth of the term of the sentence.

MR KOURAKIS: Your Honour, that is why intuitively one immediately feels greater concern for cases like this, but a year spent in custody by the person wrongly accused at all is as bad as a year spent by someone rightly accused but it just happens to be the sum total of their sentence. Your Honour, I do not take away from the obvious sense of what your Honour first said, but I am simply making the submission that the underlying real concern is that someone is spending one day, one week or months in custody more than they ought to have, but it is the case that those sentenced for longer times who complain that they ought not to have been sentenced at all are simply made to wait and cool their heels in the list as it comes up. Having said that, I accept that one none the less has an intuitive feel in a case where the sentence is short, that the appeal in a more direct way might be rendered nugatory. That is the first submission I make about that.

The second, your Honour, is this, that although Justice Brennan as he then was directed his comments in Chamberlain to the importance of not setting at nought the verdict of the jury, on the civil side the same sort of reasoning has been applied by other members of the Court in making the point that the judgments appealed to this Court are none the less judgments of the highest appellate or judicial authority in the States.

HIS HONOUR: But less and less so. On the civil side, I think there has been a change. I think that it is much easier to get a stay - I am not talking so much about this Court because in fact there are not many applications for stay made in civil matters to this Court ‑ but in practice, at intermediate court level I think it has become much easier to get a stay. The New South Wales Court of Appeal in a number of decisions has really made that point.

MR KOURAKIS: If your Honour pleases, it does appear to be the case that stays are now granted not just to preserve the subject matter of the litigation but also where the consequences would be unjustly adverse or create undue hardship, and to that extent there has been an extension. But in terms of requiring something exceptional because it is none the less an appeal from the highest appellate authority of a State, that principle still remains good and that is the submission that I make in this case.

HIS HONOUR: Mr Gray says, of course, and this is another point that I did not repeat to you, but he says that if he cannot come here, he has got no appeal against a custodial sentence.

MR KOURAKIS: And, your Honour, the respondent concedes that that must be a factor which will influence the process of looking at whether to grant leave, not by applying any different test, as is, I suspect, suggested in the outline, but just in a practical way, for example, in the way which was illustrated in the case of Radenkovic 170 CLR 623. But that, your Honour, was an application for leave to this Court from a sentence imposed by the Court of Criminal Appeal for the first time and it appears that the High Court looked more closely, identified an error of principle and interfered, even though it might not have been said to raise something of public importance. So it simply is yet another consideration. Clearly the Court will consider that in cases such as this. I do not argue against that.

Your Honour, can I just briefly, before turning back to the real question which clearly your Honour is anxious to get to as to how to dispose of the matter in terms of the interlocutory application, can I just deal with the arguments as to the authority of the Director of Public Prosecutions and invite your Honour to look again at section 91 of the South Australian Corporations Act.

HIS HONOUR: I certainly would not be prepared to hold at this level that Mr Gray’s point is not arguable but my inclination is to think it is barely arguable, I must say.

MR KOURAKIS: All I was going to take your attention to ‑ there were two matters, but the main matter that I was going to bring to your Honour’s attention was that the enforcement powers in subsection (5) do not only refer to the conduct or carrying on of the prosecution but also to matters relating to it. If it does not come within the primary limb, in my respectful submission it must come within the latter.

HIS HONOUR: If the asked the defendant whether he was still being prosecuted during the appeal process, I think he would give you only one answer, would he not, in this case?

MR KOURAKIS: Yes. If not prosecuted, certainly persecuted.

HIS HONOUR: It is not over yet, he would be saying.

MR KOURAKIS: No. Your Honour, in any event, with respect it is apparent ‑ your Honour is now well acquainted with the arguments of both sides. Can I come back to the submission which I am anxious to put as forcefully as I can and that is this, that underlying the application for a stay is, with respect, almost a notion that the applicants can conduct this appeal by correspondence from abroad. The submission I put is that if they seek the indulgence of the Court as to an expedited hearing, if they wish to make use of the machinery, then if it not a matter of having a bet each way, with respect, they can come back to the jurisdiction, be placed on such bail as the Court considers appropriate and necessary to secure their eventual attendance, if it decides to grant bail at all, and that can then take place. A stay effectively means that if they decide not to ‑ ‑ ‑

HIS HONOUR: Let me ask you this, Mr Kourakis. If they did come back and they applied for bail, would you object to bail?

MR KOURAKIS: Your Honour, I - this is going to seem like a cop-out ‑ ‑ ‑

HIS HONOUR: It is an important question, Mr Kourakis, because it is something - let me assume for present purposes the answer would be you would oppose it. Let us assume you would oppose the grant of bail for present purposes. The answer would be, “Why, as a practical matter?”

MR KOURAKIS: With respect, your Honour, can I turn it round. If the Director of Public Prosecutions opposed bail two things will happen. The Court will either agree and not grant it, in which case it is clear that the reasons advanced were cogent and persuaded the Court. On the other hand, the Court might not accept them and will grant bail because that is the appropriate thing. In my submission, in the end it is for the Court ‑ ‑ ‑

HIS HONOUR: Oh, Mr Kourakis, the Director made submissions about sentence and the Director would make submissions about bail, whether it should be granted or not.

MR KOURAKIS: Yes, that is right.

HIS HONOUR: Yes, it is a matter for the Court, but it would be very unlikely that the Court would refuse bail if the Director did not oppose it. And then it would mean that the applicants here have really been brought back as an exercise, almost, in punishment as it were, in those circumstances.

MR KOURAKIS: With respect, not, your Honour, because even if the Director consented to bail, it would be on conditions and it would be on sufficient conditions to make their return more likely, including the most obvious, guarantees. If your Honour pleases, the submission I made and the proposition I put were discussed by his Honour Justice Cox in a single judgment of our State but it was one where, again, on appeal to the Court of Criminal Appeal, a custodial sentence was imposed for the first time and the prisoners sought a stay on the execution of the warrants pending the special leave application. I think, in fact, Mr Borick acted for these particular applicants, and for discretionary reasons connected with that case the application for a stay was refused. His Honour Justice Cox specifically discussed the question of whether bail or suspension - stay of execution were the appropriate remedies and for essentially the sorts of considerations that I put to your Honour now, came to the view that really it was bail that was the appropriate remedy because it could be fashioned to ensure attendance.

That, in essence, is the submission that I make to your Honour. It would not be unnecessary. They may, as a condition or within the conditions imposed, return. But it would be, for example, with guarantees and perhaps other conditions which a proper consideration of that question might fashion to ensure their return.

HIS HONOUR: There is support for a lot of what you are putting in Beljajev v Director of Public Prosecutions 173 CLR.

MR KOURAKIS: I think that was bail pending trial.

HIS HONOUR: Yes, it was.

MR KOURAKIS: But in my submission again, as to the exceptional nature of this Court granting bail and the like, the points are well made. But, your Honour, at this stage my submission is not even there because I am not going to take up your Honour’s invitation to formally advise of the attitude because I just cannot. My submission is simply that the most appropriate way of dealing with what I might call stays generally, on the criminal side, is bail. There are very few stays on the criminal side that have been relevantly sought. When execution was obviously the penalty for murder, there were some cases as to that. But generally, in criminal matters, the remedy sought pending application for leave to his Court is bail although, because of the special facts in Beljajev, an application for stay was also made. But that is to do with the hierarchy of the courts and which orders have been made by which court on granting and refusing bail. Bail was sought in the alternative in Beljajev. I simply say that just as a matter of approach on the criminal side, bail is the way to approach these matters.

If your Honour pleases.

HIS HONOUR: Just before you sit down, you said there was a case that came to this Court, the High Court, which did involve the first appeal, as it

were, against a custodial sentence. It began with R. What was the name ‑ ‑ ‑

MR KOURAKIS: Radenkovic.

HIS HONOUR: What is the reference to that?

MR KOURAKIS: Radenkovic (1990) 170 CLR 623.

HIS HONOUR: Do you have that there?

MR KOURAKIS: I probably do not, your Honour. It is a reference from ‑ ‑ ‑

HIS HONOUR: You do not have it, Mr Gray?

MR GRAY: I am not sure, your Honour. No, we do not have it, your Honour.

HIS HONOUR: You do not have anything further to say, Mr Kourakis?

MR KOURAKIS: No, your Honour

HIS HONOUR: Mr Gray.

MR GRAY: Your Honour, briefly in reply, my learned friend conceded that both defendants below sought a strict application of Everett. When the court said what it proposed to do, it is not correct to say that Mr Borick conceded that approach. What Mr Borick said was, “If the court has decided to do that, we accept it.”

HIS HONOUR: He had no choice.

MR GRAY: He had no choice and his written submissions had been put forward. So this is a case where the accused wanted strict Everett and sought that.

The second point, your Honour, suspension. Your Honour, there is much to be said in regard to suspension. One of the exhibits to Mr Taylor’s affidavit in response to Mr Hopwood attaches a 1993 medical report about his state of health.

HIS HONOUR: Mr Gray, I could not decide on suspension on an application of this kind. It is peculiarly a matter for a sentencing court, I think. I understand what you say and ‑ ‑ ‑

MR GRAY: Our only point was, your Honour, for my friend to say that the only relevant matter is good character is, with respect, not right. There is a lot that is available to put on suspension. One of the matters, your Honour, is that these men were fined and then there was a long delay before this matter of double jeopardy was finally activated. It was many months later. In that time, they have gone about matters ‑ and that is all relevant to suspension.

HIS HONOUR: But Justice Prior says that that delay was because they exercised their rights. He says they were fully entitled to, but that is the real reason for it.

MR GRAY: Your Honour is more concerned with the delay between the fines and the DPP appeal being heard. In that time they are off committing themselves offshore in regard to various matters. So we say, your Honour, medical matter, matrimonial matters, the way they were conducting themselves, all relevant to suspension and were not gone into.

Your Honour, the suggestion that the correct approach is that they come back and face up to bail we say is not appropriate. That is one avenue that could be followed. It does in no way negate the jurisdiction to grant a stay. The fact of the matter is that the court dealt with these defendants when they were out of the jurisdiction and it is not as though they have left the jurisdiction of the South Australian court because of this, they were out when they were sentenced. With an October date, your Honour, we say there is every argument for a stay rather than the bail procedure.

In a sense, my learned friend’s argument is a bit like a Catch-22 situation. He says you cannot have it both ways. We are not seeking it both ways. We say that we have enlivened a jurisdiction.

HIS HONOUR: Does the material show when your clients went overseas?

MR GRAY: I am instructed that Byrnes left in 1989 to pursue an overseas career, which is partly in London and partly Papua New Guinea. Mr Hopwood, in and out of the country for quite a long period of time, regard to offshore geological matters.

HIS HONOUR: Have they had to come back to the court? Have there been any ‑ ‑ ‑

MR GRAY: Yes, they have been back to the court ‑ ‑ ‑

HIS HONOUR: As a matter of obligation.

MR GRAY: On every time they have been required to attend, they have attended.

HIS HONOUR: Is that right, Mr Kourakis?

MR KOURAKIS: Your Honour, in court appearances, yes, but after the sentence was imposed the warrant for their commitment was extant for two weeks before any stay and they did not come back to be taken in on the warrant that was out for their imprisonment.

HIS HONOUR: Have you ever been to Russia, Mr Kourakis? Have you ever tried to communicate with anybody in Russia? It is totally irrelevant, I suppose, but I have just been there and it is not easy.

MR KOURAKIS: Your Honour, from some counsel who were in the War Crimes trials I am aware of the difficulties they faced, but presumably instructions to prosecute this ‑ they must have been.....so some contact has been had. I do not know how hard it is to book an Aeroflot plane out. But as to New Guinea, that is a completely different ‑ ‑ ‑

HIS HONOUR: There is not a telephone box on every corner there, either.

MR KOURAKIS: In New Guinea, according to the affidavit of Mr Haarsma, Mr Byrnes is a crucial adviser to the Papua New Guinean government on some pipeline. I do not imagine contacting him would be difficult, with respect.

HIS HONOUR: You may be a little optimistic in that regard. Have you ever been to New Guinea?

MR KOURAKIS: The continent and Europe are the limit of my travels.

MR GRAY: Your Honour, could I just say this. There was a short period when the warrant was out and that is dealt with in the affidavits. The explanation that is offered was that new leading counsel had been briefed and the view was taken that the outline - the points had to be worked through and that is the explanation for the delay.

HIS HONOUR: I am not very concerned about that aspect. Let me have a look at Radenkovic. Yes.

MR GRAY: Your Honour, having a brief glance at that case, we would say that that rather assists here, that if the Court were of the view,

particularly in regard to the count on which Byrnes was sentenced when he was acquitted, took the view there was something anomalous about this matter, just looking at the headnote, it would appear to support our position.

Your Honour, there was one final matter that I did wish to address and your Honour raised this question about the meaning of “enforcement power”. I did have the Seaegg Case bought into Court which I could pass to your Honour. It does throw, I think, a little assistance on the point we put. It is a case that concerned a prisoner who was seeking to appeal in regard to a Commonwealth offence and he had been tried and sentenced by the New South Wales court and the issue was whether he could exercise his rights of appeal. It was held that he was unable to appeal to the New South Wales Court of Criminal Appeal. That court had no jurisdiction. In the process of the court’s reasoning it does appear to be dealing with a rather analogous position about how it would read, in effect, the right to bring an indictable prosecution and it is suggesting a reading down, that is that those words do not carry with it the rights of appeal. One looks for separate appeal rights. So I simply by way of what might be available add that case to your Honour’s list of references.

Your Honour, at the end of the day by way of reply we say this, that the balance of convenience, with a 9 October date that we certainly are able to meet and my friend says they can, in the particular circumstances of this case and the unusual circumstances, lie with the defendants; that Chamberlain is distinguishable and this case has some very unusual unique anomalous features to it and we invite your Honour to exercise the jurisdiction for a stay. May it please the Court.

HIS HONOUR: Mr Kourakis, I am informed that the Court could hear this application on 11 September. There is no reason why the Director should not be ready by then.

MR KOURAKIS: No. I will get some instructions in a moment, but the reply to the summary of argument might only reach the applicants very shortly before the hearing.

HIS HONOUR: I would impose directions about all of that.

MR KOURAKIS: Can I just have a moment, your Honour?

HIS HONOUR: Yes, certainly. Just while Mr Kourakis is doing that, you have made an application for expedition too, have you not?

MR GRAY: Yes, we have, if the Court pleases. We did wish to make an oral application today to amend the special leave grounds to include the attack on the authority of the DPP to.....process.

MR KOURAKIS: If your Honour pleases, there are two reasons why the Director would not be ready by the 11th. The first is simply a matter of choice of counsel who has had the conduct of the matter, which was the Director himself. He is absent overseas, contactable, but still absent until the 14th. The second problem really arises from what my friend Mr Gray has just said, and that is that the amendment to the application for leave and the fact that they raise the jurisdictional point will take some further time to answer in terms of the reply. But they are the two reasons.

HIS HONOUR: I am not impressed by the second because I would give directions. Mr Martin, is he on vacation or what is the position? I can understand why Mr Martin would want to argue this matter himself. I can readily understand that.

MR KOURAKIS: He argued the matter before the Court of Criminal Appeal ‑ ‑ ‑

HIS HONOUR: I can understand why - it is an important matter and he is the Director, I can well and truly understand that.

MR KOURAKIS: Your Honour, I understand that he attending a conference overseas, but whether that is now finished or what, I do not know.

HIS HONOUR: Are you certain he cannot be back in time?

MR KOURAKIS: I am not certain of that. All I know is that his planned return date has been 14 September. We would have to make some inquiries.

HIS HONOUR: The 14th would be a Monday, would it not?

MR KOURAKIS: Yes, I am told.

HIS HONOUR: He would not want to get off an aeroplane and start arguing this.

MR KOURAKIS: I do not know if the 14th is the date on which he goes back to the office, whether he is back before I just do not know. So the 11th is the Friday, in that case.

HIS HONOUR: It cuts two ways, in a sense. At the moment I am minded to grant a short stay for a number of reasons. I have not formed a concluded view about that. In any circumstance I would grant some stay because these people are overseas and there would have to be some stay. If you start talking about a stay here, when one of the people is in Russia, I think realistically you have to be speaking about 10 days or something like that, probably. I do not know. Perhaps less for Mr Hopwood in New Guinea, but you are talking about a week at least, perhaps a little more, and you come very close to 11 September. There really is not any point, I would not have thought, in worrying about four or five days, something in that order, which would be involved if the matter were coming on on 11 September. It is not the applicants’ fault. I am not suggesting it is your fault either, or Mr Martin’s fault, but it is not because of anything the applicants are doing that the matter cannot come on on 11 September.

Let me make myself clear. If the matter was going to come on on 11 September I really do not see how anybody could object, in the circumstances of this case, to a stay until that date, bearing in mind that there has to be some sort of a stay in this case, as a practical matter. So if you are talking - what is the date today, 21st - you are talking 18, 19 days. They are going to get a stay of seven, ten days anyway. Nobody is going to argue about a difference of nine days. Now, if in fact the applicants through no fault of their own cannot have the case heard on 11 September, it seems a little hard to say, well, because of the Director’s own internal arrangements ‑ which I do not criticise in any way at all - but because of them the matter cannot be heard until October and therefore they cannot have a stay and they have got to come back and they have to apply for bail, you understand what I am putting?

MR KOURAKIS: Your Honour, with respect I do. When one gets on the slippery-slide of that sort of process, though, it will become a couple of weeks and maybe six weeks, that my submissions ask that your Honour step back a moment and say that these persons were prisoners under sentence, decided not to start arrangements for coming back on 1 August in the hope that they might grant the sort of stay your Honour has intimated you might grant. Having decided not to come back to answer the warrant on that chance, and having reached this day it is now said that they should get another week or two if everyone can make the effort to give them an expedited hearing. Then if they cannot give them the expedited hearing, then the applicants, who are prisoners under sentence, can stay abroad even longer and perhaps await the final outcome of the application.

HIS HONOUR: The problem about your unavailability - and again I am not being critical, you please understand that. Mr Martin’s commitments ‑ it is entirely proper for him to have the commitments he has - but the fact of

those commitments does mean, if your views were to be accepted, your submissions were to be accepted, that these people might serve a term of imprisonment which will occupy quite a long proportion or quite a substantial proportion of the total sentence imposed upon them.

MR KOURAKIS: With respect, your Honour, it would not mean that necessarily.

HIS HONOUR: Because they can apply for bail.

MR KOURAKIS: It would mean simply that they would have to come back from abroad and enter into the same sort of arrangements that all other sentenced prisoners seeking the leave of this Court are required to enter into. And that is a bail agreement, a bail undertaking. That is all that my submission entails.

HIS HONOUR: Yes.

MR KOURAKIS: Assuming the Court considers it right that they be given bail. If the Court considers that there are reasons for not granting bail, then my submission simply entails that they come back from abroad to be imprisoned where the Court hearing the application thinks they ought to be, pending the determination of their application. If the Court pleases.

HIS HONOUR: Thank you, Mr Kourakis.

HIS HONOUR: I have before me an application by two persons for a stay of the execution of warrants issued as a result of the imposition of terms of imprisonment upon them by the Court of Criminal Appeal of South Australia. The applicants have applied to this Court for special leave to appeal.

It has been held by his Honour Justice Brennan in Beljajev v Director of Public Prosecutions that the jurisdiction to grant a stay should be recognised as extraordinary and that applications seeking to invoke that jurisdiction should not be made simply in order to secure the intervention of this Court in the preservation of a status quo. There is no doubt that the jurisdiction is an extraordinary one and should not be exercised lightly.

I was able to offer to the parties an early hearing of the application for special leave, that is an opportunity for the application to be heard on 11 September in Melbourne. Had it been possible for the parties to avail themselves of that opportunity, the position would have been that the period for which an exceptional stay would have been required would have been very short. I say that because, as both of the applicants are overseas and have so far responded on all occasions to any requirement that they be present, it would be likely that I would have granted them some stay in any event to return to Australia.

The principal reason why the matter cannot be heard on 11 September is because, understandably and perfectly appropriately, the Director of Public Prosecutions, who would wish to argue this matter personally, cannot be available to do so.

The principal submission made by the respondent to this application is that this Court should not exercise a supervisory jurisdiction in respect of interlocutory matters in the criminal process and, in particular, should not be concerned with such matters as bail which are peculiarly matters for the State courts; that an application for bail would be a much more appropriate way for the applicants to proceed than to make an application for a stay and that, accordingly, the applicants should return to Australia and then make their application for bail.

There are some unusual, indeed, exceptional features about the case. Unless the applicants can induce the High Court to review the penalty imposed by the Court of Criminal Appeal, the applicants will be effectively denied any appeal against the custodial sentences imposed upon them. The sentences are short and any term served in prison would represent a substantial proportion of those sentences. The application and any appeal, if the application for leave is granted, do not seek in any way to impugn a jury verdict and the matter could be brought on expeditiously.

In all of the circumstances of the case I am minded to grant a stay, but not a stay until such time as the applications for leave can be heard.

Let me outline what I have in mind. I am minded to order expedition and to make such orders as will enable the matter to be heard in Sydney on 9 October. I am also minded to give directions with respect to the filing of outlines of argument and the like but I am disinclined to grant a stay extending beyond 18 September next. If I grant a stay until 18 September and order expedition so that the matter be heard on 9 October with appropriate directions, that would give the applicants an opportunity to return to Australia and make their applications for bail.

Now, gentlemen, that is what I would propose. It would seem to me that it would be appropriate also that I give some directions, preferably as a result of agreement between the parties, as to the filing of arguments and the like. I wonder whether it might be possible for you to draft some orders based upon those indications and perhaps return them to me. Is that possible, Mr Kourakis, Mr Gray?

MR KOURAKIS: Yes, I would think so.

MR GRAY: Would your Honour have in mind having those after lunch?

HIS HONOUR: Whatever is convenient, Mr Gray.

MR GRAY: Yes, that would be convenient.

HIS HONOUR: I am just wondering when do you gentlemen have to get back?

MR KOURAKIS: I am starting to be concerned about that. My flight is at about 3 o’clock, 3.15.

HIS HONOUR: Is there any reason why you cannot try to agree and not even appear. I do not see why you would have to appear. If you cannot agree, I will make the orders myself, but it is much better, I think, that you do them by agreement.

MR KOURAKIS: I suspect we could.

MR GRAY: I see no difficulty with that, your Honour. Could I just say this, your Honour. If my learned friend is going to make inquiry of Mr Martin and it did turn out that he was available for 11 September, we ourselves would urge that and I just wondered whether inquiry could be made because your Honour has offered a date and at the moment it did appear to me that my learned friend was not fully instructed as to Mr Martin’s movements.

HIS HONOUR: I do not think Mr Martin’s movements should be impeded in this area. I really do not. He has been to a conference, and no doubt a conference in furtherance of his duties. The date that I did offer you is fairly soon and you might be in a similar position yourself some time, Mr Gray, that it is just a little too soon for comfort.

MR GRAY: Yes. The other aspect of the matter is to whom the bail application would be made. Would your Honour see that as being appropriate to your Honour or would your Honour see that as appropriate elsewhere?

HIS HONOUR: I do not know, Mr Gray. It is a matter for you. I am not going to give you advice on that.

MR GRAY: It is just that your Honour has had the advantage of being now at least seized of some of the material by background and there is an efficiency, but your Honour, we will make application ‑ ‑ ‑

HIS HONOUR: Is there any agreement as to which court - it has to come here, does it not?

MR KOURAKIS: Your Honour, in my submission it would be more appropriate to hear it in this Court, yes, and with respect, your Honour, I would have thought the most important thing is to go before a Justice who is available when the applicants return, so there is no delay.

HIS HONOUR: Exactly.

MR KOURAKIS: And we would be obviously happy to co‑operate with that.

MR GRAY: We will see if your Honour draws the short straw.

HIS HONOUR: I am the duty Judge this week. I dealt with it on the duty Judge - I do not know when I am next duty Judge. If it comes before me, of course I will hear it, but you will get a much more experienced Judge if you go before one of the other members of the Court.

MR GRAY: If your Honour pleases. We will make the appropriate inquiries and if it falls your Honour’s way, or at other ways, so be it. We will follow the usual procedure.

HIS HONOUR: All right. It is clear enough what I have in mind, is it not? There is no need for you to appear again, either of you. If, in fact, there is no agreement, I will make the orders myself. If there is agreement, there may have to be some minor moulding of the orders but I do not think there is any ambiguity about what I have in mind, is there?

MR GRAY: No. Your Honour, we will, I suggest, fax through to your Honour’s chambers the proposed minutes of order that are agreed to by counsel and we will incorporate in that the timetable that we think is achievable and then if your Honour approves that, then your Honour makes the order. Otherwise we will accept your Honour’s directions, of course.

HIS HONOUR: What do I actually stay, Mr Kourakis, the execution of the warrants?

MR KOURAKIS: Yes.

HIS HONOUR: So the order will be for a stay of the execution of the warrants until 18 September - I think that is the Friday after Mr Martin gets back, so if he wants to argue the matter he can, because obviously they will have to make their application and have it dealt with by the 18th, and that would give Mr Martin time if he wanted to do it himself, would it not?

MR KOURAKIS: Yes.

HIS HONOUR: And it would certainly give him time to give instructions anyway, even if he does not want to argue it himself.

So there will be an order for the stay of the execution of the warrants until the 18th, or other order, I suppose.

There will be an order that the matter be expedited, to be heard in Sydney on 9 October.

I will also give you leave to amend your application, Mr Gray, for special leave. You can then prepare a timetable, bearing in mind the matters I have said.

MR GRAY: Your Honour, I will speak to my friend immediately after we adjourn and we will get our agreement. I will then undertake the preparation of the minutes for his approval and if not in your Honour’s chambers this afternoon, certainly early next week.

HIS HONOUR: Yes. I suppose I need formally to order now in any event that there will be a stay until 18 September of the execution of both warrants.

Is there anything further then?

MR GRAY: No, your Honour.

AT 12.40 PM THE MATTER WAS CONCLUDED

[1998] HCATrans 299

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Sentencing