Jacques v The Director of Public Prosecutions
[2022] HCATrans 83
[2022] HCATrans 083
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A41 of 2021
B e t w e e n -
STEVEN JOSEPH JACQUES
Applicant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Application for special leave to appeal
KEANE J
GORDON J
STEWARD J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION
ON THURSDAY, 5 MAY 2022, AT 12.30 PM
Copyright in the High Court of Australia
KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.
MR S.A. McDONALD, SC appears with MS M.E. SHAW, QC for the applicant. (instructed by Patsouris and Associates Lawyers)
MR B.J. POWER, QC appears with MS S.E. HARBURG for the respondent. (instructed by Commonwealth Director of Public Prosecutions)
KEANE J: Yes, Mr McDonald.
MR McDONALD: Thank you, your Honour. The first matter I need to raise is that an extension of time is required for special leave. There is an affidavit of Mr Patsouris in support of that application at page 69 of the application book.
KEANE J: Is the application opposed, Mr Power?
MR POWER: Only in the sense that the ultimate submission of the Director is that leave would be futile if the grant of special leave is refused but no other basis is put forward.
KEANE J: Thanks, Mr Power. Mr McDonald, you can proceed on that footing.
MR McDONALD: Thank you very much, your Honour. I propose to commence by addressing what we have identified as special leave question 2, which relates to proposed ground of appeal 1(b). Then I propose to move to question 1 and then question 3. So, the first issue, question 2, relates to what the Court of Appeal described as a “signposts approach”, which was adopted by the Commonwealth Director of Public Prosecutions and was accepted and acted upon by the Court of Appeal. What is meant by the signpost approach is explained clearly at paragraphs 2 and 29 of the judgment of the Court of Appeal, so if I can perhaps take your Honours first to paragraph 2 at page 38 of the application book. You will see that their Honours said:
the Director further identifies several matters relating to the basis upon which the sentence was imposed.
That is the sentence of the primary judge:
The Director does not go so far as to submit that these constitute process errors in their own right, but rather that they tend to explain or demonstrate the manifest inadequacy of the overall sentence.
I interpolate that the language of “process error” is a shorthand that is commonly used – in South Australia, at least – to refer to the first category of House v The King error, what we might call specific or identifiable errors of principle. In paragraph 29, if I can take the court there, on page 43 of the application book – paragraph 29 starts with the proposition, which we respectfully submit is wrong, that:
The determination of whether a sentence is manifestly inadequate is a conclusion that requires repeating the sentencing task to determine whether the sentence fell outside the permissible range.
You will see there is a footnote there that indicates that this is a proposition that has now been accepted in a line of appellate cases in South Australia, starting with R v Peet, which was actually sentencing for a triple murder.
In our submission, it is not a matter of the appellate court repeating the sentencing task and comparing the two results, because that fails to recognise on an appeal against a discretionary decision that the court should not interfere on the basis of mere disagreement where judgments were open to the trial judge. That is so, in our submission, even if the accumulation of contestable discretionary judgments or evaluative judgments at steps along the way would ultimately have led the appellate judges to have imposed a markedly different sentence from what was imposed at first instance. “Manifest inadequacy” in the relevant sense is not merely a matter of comparing two sets of numbers and seeing that there is a big difference between them ‑ ‑ ‑
KEANE J: Mr McDonald, I note that their Honours in paragraph29 are referring to the practice of the prosecution. As they then go on to explain, it is a technique of advocacy and then they conclude by saying that technique:
assists in identifying whether a sentence is a product of idiosyncratic views –
and so forth. That does seem to be rather different from suggesting that the court is saying that this is a process that the court adopts. Rather, it is referring to the technique of advocacy that is being adopted and explaining how it assists the court in its task.
MR McDONALD: Well, can I perhaps then take your Honours to paragraphs 48 and 50 because, after going through the signpost, the court then comes to apply its own approach and, in my submission, again, there is a reference at the start of paragraph 48 to the fact that:
the Director did not allege any process error. Each matter identified above was raised as a signpost, contributing to the explanation for the asserted manifest inadequacy.
Then, in paragraph 50 – this is their conclusion. Although they have done it by setting out the DPP’s submissions up to that point, there is really no further analysis in addition to the setting out of those submissions, because at paragraph 50 it says that:
It may be that no one signpost the Director identified in this case could be said to amount to a process error in sentencing. That is not necessary to decide. Together, however, they had a compression effect on the final sentence by reducing it to well below that which was appropriate for offending of this scale and seriousness –
So, in our submission, what they have done is to effectively accumulate their disagreements at each point with what the trial judge did, but without finding that what the trial judge did at those points amounted to specific error and has effectively accumulated ‑ ‑ ‑
KEANE J: That is because they are not addressing specific errors, they are looking at various indications that, taken together, support the conclusion that they then reach – which is that the head sentence was manifestly inadequate – the complaint at all times being the manifest inadequacy of the sentence. Whether one likes the approach or not, it does at least have the benefit of offering some explanation for the conclusion so that it is not simply just an exercise of impression or instinct.
MR McDONALD: In our submission, your Honour, what it amounts to is saying that a series of non‑erroneous judgments that were open to the trial judge – when you accumulate them – have resulted in a sentence that is very different from what the Court of Appeal reconsidering the task for itself would have done – and then concludes that that difference amounts to demonstrating manifest inadequacy.
But if each of those steps that are said to support it was not itself an error of principle, then you actually have an explanation, consistent with principle for why the Court of Appeal would have reached such a different sentence, whereas we would respectfully submit that the second category of House v The King error is really a category where you cannot identify what specific error occurred but the inference has to be drawn that there was some error of principle that has affected the outcome.
What has happened in this case is they have identified a series of disagreements. The DPP has expressly disavowed the idea that any of those amount themselves to specific error – but between them, those errors or disagreements effectively explain why such a – a much lower sentence was imposed by the original judge than the Court of Appeal thought was appropriate. The explanation lies in…..that were properly open to and in the province of the trial judge – the sentencing judge, I should say.
Can I just perhaps give your Honours a couple of instances of the sorts of errors their Honours referred to. The first one that I take your Honours to is at paragraph 43. There is a reference there to:
the discounts given for the guilty pleas -
in relation to the two:
‘money laundering’ offences -
being 33 per cent and 35 per cent and they were identified:
as contributing to the ultimate manifest inadequacy -
but not suggested that those discounts were themselves wrong in principle or outside of the range of appropriate discounts. The Court of Appeal does not note this, but the trial judge actually noted that in relation to those two counts the pleas were entered at the earliest opportunity which is why they are higher than the court might otherwise…..respect for discounts for a guilty plea.
The effect then was, effectively, sentence discounts on those two counts that were within the trial judge’s range of discretion are then accumulated with – and to take another example – the use of concurrency in the sentences which, again, is not to have been a specific error. So, you are sort of accumulating these disagreements with – or a feeling that this was on the high side and you add up each of those with the result that the outcome is then very different from what the Court of Appeal would have done, but without demonstrating – either demonstrating specific error – which was specifically disavowed – or without demonstrating an outcome error in the sense of an error that reflects an error of principle even if it cannot be identified.
STEWARD J: Mr McDonald, before you go on can I ask you for clarification purposes - you took us earlier to paragraph 29. Preceding paragraph 29 is a quotation at paragraph 28 of Buttigieg and there is a summary of principles there. Do you accept those principles as being correct or do you challenge them?
MR McDONALD: Your Honour, we do not accept that the appellate task properly “requires repeating the sentencing task to determine whether the sentence fell outside of the permissible range”. It is not a matter of repeating the sentencing task because in doing that you will fail to give the proper deference, if that is the right word, to the trial judge’s own judgments made – that are explicable as within principle.
STEWARD J: That is the observation in 29. What about the expression of principle that is quoted in 28? Are you challenging the ‑ ‑ ‑
MR McDONALD: I have…..
STEWARD J: Yes, sorry, I might have misled you before, I apologise.
MR McDONALD: No, sorry, I thought you were referring to footnote 9 in paragraph 29.
STEWARD J: No, no, the quoted expression of principle there – is that something you challenge?
MR McDONALD: No, we accept that statement of principle, your Honour.
STEWARD J: All right, thank you.
GORDON J: Mr McDonald, while you are interrupted, do you propose to deal with question 1?
MR McDONALD: I am about to go to that now, your Honour, so if I might move to that. This relates to the question of whether the non‑parole period fixed was manifestly inadequate, and the way that the Court of Appeal addressed that issue. In our submission, the reasoning – the way the Court actually reasoned in this case is inconsistent with the statements of principle that one finds in Hili v The Queen and Barbaro v The Queen, which we have referred to and set out a couple of those statements in our special leave written application at paragraphs 14 to 16.
The essential core of the principle in Hili is that an appeal court is not to approach consideration of a sentence appeal on the basis that there is an a priori percentage range as a percentage of the head sentence into which the minimum period for serving custody should normally or always fall. In this case, we submit that that is exactly what the Court of Appeal did, and could I take your Honours to paragraph 51? That is on page 48 of the application book. The formative reasoning, in our submission, is made quite explicit, because the Court says:
The facts that the judge found to speak in favour of the respondent’s rehabilitation tended to recommend a non‑parole period that reflected his efforts towards rehabilitation, but one that sat in the recognised range in order to meet the punitive and protective purposes of punishment.
So, in our submission, that is an error of principle that is directly contrary to those statements in Hili and Barbaro and, in our respectful ‑ ‑ ‑
KEANE J: Mr McDonald, is this really just a question of terminology, though? You do accept that, in sentencing, one does have to try to ensure that like cases are treated alike, where they are truly alike because otherwise one is not giving effect to the notions of equality before the law, which is surely of importance?
MR McDONALD: Absolutely, your Honour. This Court has said, on a number of occasions, that the way to do that is to look at the application of principles rather than the identification of a range and the idea that sentences ‑ or, in this case, the percentage of a non‑parole period must fall within the range.
Another example is the case of Pham 256 CLR 550 where Justices Bell and Gageler said it was an error to treat patterns of past sentences as defining the boundaries of the proper exercise of the sentencing judge’s discretion. In principle, it is absolutely right that when you apply principles you will tend to produce outcomes that obviously will fall within particular ranges as a matter of…..emerging from the proper application of principles.
STEWARD J: Mr McDonald, is it possible that the language in 51 was intended to reflect the expression of principle in the quote from Buttigieg at paragraph 28 where the court says that one of the roles of the appeal court is to see:
if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’ -
Are they not just not referencing back to that expression of principle with which you earlier said you did not have a problem?
MR McDONALD: In my submission, no, your Honour, because what they are really doing - firstly, they are addressing specifically the non‑parole period here and they are addressing the proposition that a non‑parole period is to fall within what they call the recognised range. Perhaps I should take your Honours to the quote, also in paragraph 51, which perhaps does not necessarily fully help me but, there they say:
The need for punishment and protection would generally result in non-parole periods of between one half and three quarters of the head sentence.
That is a perfectly reasonable - appropriate statement of principle. But then they say:
Where in that range, or in special cases where outside that range, the non‑parole period is fixed will depend on a realistic balancing -
They are already, in the quote, fixing that as the outer parameters. So, although in a sense the range is properly arrived at by proper principles, they then turn that on its head by taking it as the starting point within that range as the limit of the proper discretion.
KEANE J: But that is because there is nothing to suggest that the approach that they have adumbrated in the first sentence is not applicable here.
MR McDONALD: Well, obviously, we did and do disagree with that. But the point that I am seeking to make is that it is – this is, in my submission, what Hili stands for – an error of principle to begin with an a priori range as opposed to beginning with principles and applying them to the facts and seeing where you end up. To say, well, you had to fix a non‑parole period that was within the range of 50 to 75 per cent, in my submission, is that error of principle. Now, it is conceivable that one would end up with a similar sentence, but, in my submission, they have not, in effect, done that task correctly. What they have done is discard with the a priori approach.
May I, if the Court pleases, move to the final special leave question, which is question 3. It is a short one, but again it is one, in our submission, that is important in principle to ensure that principles relating to prosecution appeals are being applied and preserved, and that is that the Court of Appeal in this case never addressed the residual discretion to dismiss the prosecution appeal, as opposed to the discretion to grant permission to appeal. So, in South Australia ‑ ‑ ‑
KEANE J: Mr McDonald, as to that, can I ask you, was the Court of Appeal asked to consider the residual discretion, and more particularly I suppose, was a submission advanced to the Court of Appeal that there was reason in this case in terms of the considerations that explain the residual discretion, why it should be exercised in your client’s favour?
MR McDONALD: Can I say the written submissions to the Court of Appeal expressly identified both the permission discretion and the
residual discretion to dismiss the appeal. They did not, I think it is fair to say, clearly distinguish the applicant’s submissions, did not clearly distinguish between factors going to one and factors going to another, and that is obviously because many of the same considerations would apply. So, there was express reference and there is quotation from this Court’s judgment in Green. So, in that sense yes.
There was no, I think, specific submission put that this should be dismissed in the exercise of the residual discretion as opposed to the permission discretion. All of the factors advanced were advanced as relevant to the exercise of each of – both of those two discretions, but they were separately identified, although, as I say, not always kept separate in the way that the submissions were put.
As to the directions in the court below, they did not make express reference to the residual discretion, but what they did do is set out the three stages which was in the context of talking about how double jeopardy could be relevant to a grant of appeal, set out the three stages that were recognised by Justice Bampton in the case of Faber, namely, permission to appeal, then whether or not the appeal should be allowed – which, in our submission, is plainly a reference to the considerations relating to the discretion – and then thirdly in resentencing. The conclusion, obviously, is that double jeopardy can be relevant to each of the first two of those stages, but not the third.
KEANE J: Those considerations do appear to be reflected in the passage from Buttigieg, which is set out at paragraph 28 of the court’s reasons.
MR McDONALD: Your Honours, I accept that in considering the permission to appeal discretion, the same factors would be considered and that the court did consider those in relation to the exercise of that discretion. The question is whether, having granted permission to appeal, the residual discretion to nevertheless dismiss appeal despite finding error still exists and although the same considerations might have been relevant, we have set out, in our submissions – I see that I am out of time – but we have set out the factors that we would say are relevant to that exercise.
The point really is just that if the Court did not embark on that exercise at all in this case, then its task was not completed. If it needs to do that, it has not done it. If it was to do it now, obviously, there are very strong factors that would favour the exercise of the discretion in my client’s favour – in particular, that he is now well past the original non‑parole period. I think I had better stop though, given the time.
KEANE J: Thanks, Mr McDonald. Yes, Mr Power.
MR POWER: Thank you, your Honours. If I could deal with the residual discretion point first? At paragraphs 24 to 28 of the judgment of the court below, there is significant discussion of Buttigieg [2020] SASCFC 38. The reason why that is significant is that in Buttigieg and, in particular, at the passages identified in footnotes 3 to 6 of the judgment of the court below, the factors relating to the residual discretion are fully articulated. So, there is, perhaps, in a shorthand way but in the judgment of the court below, a reference to the principles of residual discretion that are discussed in Buttigieg.
Buttigieg itself refers to Green and is essentially a case squarely falling within the residual discretion area. What occurred in this case, as with Buttigieg, is that those factors were considered in the permission phase. In South Australia, the way in which the permission phase is exercised is after a full hearing. So, it is not a case where there is a staged process where there is permission, on a limited range of factors, then a full hearing and then some separate consideration.
In this case, it was expressed to be within the permission phase but, of course, that is after a full hearing of the appeal was heard and it was in circumstances where all of the factors relevant to the residual discretion are discussed. The term “residual discretion” does not appear in the judgment, but the expression of it in terms of what factors are relevant are fully expressed in the judgment itself.
It is in fact directly contrasted to Buttigieg, where it said in 27 that there were some factors that were comparable to Buttigieg, however there were differences, and those include that at the time the court was considering the matter the applicant was not yet released from prison. Further, of course, the applicant was somebody who had previously served a not insignificant period of imprisonment.
So, in our submission, the residual discretion was fully dealt with, and it would not have been dealt with any differently, could not have been, given the process, had it been done twice. So, in relation to that ground, it is submitted that no error is shown simply by expressing that phase to be occurring in the permission phase rather than separately identifying it and doing it under the heading of residual discretion.
In regards to the signposts issue, the point we make is that on an appeal against sentence, whether by a defending applicant or by a prosecutorial appeal, there is the potential to allege specific error and manifest excess or manifest inadequacy. However, if one is to assert specific error, it has to be an error. It cannot be a matter of saying too much weight was given to a particular factor.
Our submission is that these signposts that were identified were all matters of weight and categorisation of facts. There was no changing of the underlying facts and so none of them could, in fact, have amounted to specific error, but in any event, they were not treated as specific error and ultimately the court determined that the sentence imposed was very significantly lower than proper sentencing principles would indicate should have been imposed.
The extent to which that process of – what is described as an advocacy technique – of going to underlying factors, facts in the sentence, and then looking at how the learned sentencing judge had approached them in sentencing remarks can be useful because it can tend to indicate where the discretion may have miscarried by, in a sense, pointing the appeal court to the important aspects of the case and making submissions about how – were the principles properly applied, how they should have been treated.
It is not the case that there was an exercise of the sentencing discretion by the Court of Appeal simply putting aside the learned sentencing judge’s decisions based on specific error. The quote from Buttigieg, which has been identified by your Honour Justice Steward shows that there was, at all times, an appreciation that on this appeal, for leave to be granted – it is the quote at paragraph 28 of the judgment of the court below setting out was said in Buttigieg - why that is important is that it demonstrates that it is not the case that the court was simply substituting its view for that of the primary judge. It is, as has been noted - it includes that it will only be allowed where – or one of the reasons why it would be allowed is that the:
sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’.
So, it is not the case that the signpost approach has impermissibly added a ground of appeal that was not articulated in the appeal notice below.
KEANE J: Mr Power, Mr McDonald put in the forefront of his argument the first sentence in paragraph 29 at page 43 of the record to suggest that the Court of Appeal proceeded on an entirely erroneous footing:
The determination of whether a sentence is manifestly inadequate is a conclusion that requires repeating the sentencing task to determine whether the sentence fell outside the permissible range.
What do you say about that?
MR POWER: We would say that that, in fact, is a correct statement of what a court must do, bearing in mind what is said in the paragraph above, that is any sentencing task at first instance requires a consideration of the proper sentencing principles applied to the facts of the offence and subjective mitigating features that are present. Variations in the seriousness of the offence and the degree of mitigation will result in quite widely varying sentences, even for offences of the same type. The Court of Appeal, of course, in order to determine whether a sentence is so outside the appropriate range of sentences as to indicate:
an error of principle or would ‘shock the public conscience’ –
needs to take into account all of those features, that is the offence type, the particular seriousness disclosed by the offending and the matters in mitigation. So, in our submission, that is well expressed by saying that the task of the appeal court is to re‑exercise the – sorry, repeating the sentencing task. But then, that of course is not enough, because it is well recognised that it is not merely a disagreement as to outcome but, rather, as is said in the paragraph that immediately precedes this sentence, interference is only justified on a prosecution appeal in “rare and exceptional” cases. That is our answer to that sentence.
In terms of what can be called the “norm” issue, it is important, in our submission, to look at paragraph 52 of the court’s judgment, which follows paragraph 51 and the quote from the decision of Palmer, and what is noted in 52 is the court’s conclusion. It is noting that there was scope to impose a relatively lenient non‑parole period, but it emphasises that:
the circumstances of the offending and the respondent’s offending history required a non‑parole period that continued to place some weight on personal deterrence and gave sufficient emphasis to the seriousness of the offences.
Now, that entirely accords with the process that Hili has said is the correct one, and the conclusion is reached that a parole period of just below 25 per cent was not justifiable on any view and that was manifestly inadequate.
What we say in our written outline is that in paragraph 51 and the quote from Palmer, what is occurring is that there is an observation that in order to meet the punitive and protective purposes of punishment, outcomes will generally result, that is, there will be a relatively consistent outcome if those principles are properly applied, and such that it will generally result in – to turn to the quote from Palmer:
non‑parole periods of between one half and three quarters of the head sentence.
Now, it might be thought that that is dangerously close to assuming a norm, but it is submitted that it is different because in Hili there was an express assumption of a norm from which one subtracted or added. That is not what the court has said it has done here and it is, in our submission, a difference and not merely a technical one that it is open to the court in its experience in comparing with past cases that the consistent application of principle has resulted in an observable trend. It is our submission that that is what has been said here.
Both the applicant and the respondent agree that Hili – almost on its own face – applies to non‑parole periods. Both the applicant and the respondent agree that Hili does reflect the proper approach. There is no issue, in our submission, that needs to be determined in this case – provided the Court does conclude that our analysis of what is said, is a description of the proper application of principle will result in an observable trend and then in 52 it is not that there has been a conclusion that because it is not within the half to three‑quarters that, therefore, there must have been error. Rather, it is articulated in 52 as to why it is concluded that such a low non‑parole period was not justifiable due to the need to place weight on personal deterrence and sufficient emphasis on the seriousness of the offence.
Furthermore, it is submitted that that conclusion is undoubtedly correct, in 52, and that this Court would conclude that no miscarriage of justice has occurred by virtue of the court concluding that. Then, when one turns to the proper application of the residual discretion in the permission phase – and the recognition that it was only in very rare and exceptional cases that the prosecution did or would be permitted – there is no doubt that the Court of Appeal then applied the proper processes in determining what was the proper sentence after setting aside the manifestly inadequate sentence imposed at first instance.
GORDON J: Mr Power, may I ask a question about that last submission?
MR POWER: Yes.
GORDON J: In relation to the residual discretion and its application in the permission phase. Accepting that it is, in South Australia, dealt with, in a sense, at the one time, is it not ordinarily usual for a Court of Appeal to go on and address what I will call the residual discretion separately – as a separate condition in its reasons? So, for example here, you see from their reasons that they deal with the permission stage – as you properly recognise - at the top of page 49 of the application book. I ask that for two
reasons. I think, as you accepted as part of your submissions, there may be different considerations to the residual discretion as separate from the permission stage.
MR POWER: Yes, that is so, but when the passages of the Court of Appeal that we referred to – that is paragraphs 23 through to 28 – it is clear that the permission phase really focused on the need to establish the matters that relate to the residual discretion. By this time of course the judgment is being written after having heard the full appeal. So, our submission is that that the permission phase and residual discretion can involve different considerations. But here, the court clearly did address the residual discretion factors and it does not matter whether it was done at the permission stage or later if all of those factors were properly considered. What is said at 53 is:
This is a clear case for a grant of permission –
which we read as referring back to that analysis at 23 to 28.
KEANE J: Thanks, Mr Power. Anything in reply, Mr McDonald?
MR McDONALD: Thank you your Honour. Just very briefly. Firstly, your Honour Justice Keane referred to the first sentence of paragraph 29 and we would just add that it is also further down in that paragraph where the court refers to identifying signposts to assist the court in its notional sentencing task. The reason we emphasise that is because it means that the court in doing this task is looking for what the DPP submits would be an appropriate approach – if you like – at first instance, if the matter was free of what the sentencing judge had done.
That has the problem of allowing the Court of Appeal to simply substitute its own view for the facts or the findings of the sentencing judge. An example of that is where the sentencing judge in this case found that rehabilitation and the steps towards rehabilitation were resoundingly demonstrated, with the consequence, as the sentencing judge found, that the need for personal deterrence was greatly reduced.
The Court of Appeal, in our submission, would have to find that that finding and assessment was wrong in principle, or alternatively, if in doing its notional sentencing task, would need to accept and act on the view of the trial judge in relation to that finding, because that is classically within the province of the trial judge.
To the extent, then, that the Court of Appeal’s ultimate different sentence would simply reflect its difference of opinion, but not a difference of principle, then you are outside of the residual House v The King stage,
which is to look at whether the result bespeaks an error of principle, not just mere disagreement but even emphatic disagreement.
In relation to the last point that was being made about the residual discretion, I understood my friend to concede that there could be different considerations in principle at the two distinct stages of the permission and the residual discretion. If that is right, then it means that it cannot be suggested that the residual discretion and the permission discretion have genuinely merged. They are two separate stages, and in principle they both need to be carried out. It is clear in my submission that in this case, the second of those stages – the residual discretion – was not completed at all, and so the effect of that is that task ‑ ‑ ‑
KEANE J: But is that not because, on your side, there was no suggestion that there was a factor germane to the residual discretion that had not been addressed in considering the factors relevant to permission?
MR McDONALD: Well, in our submission, it is a matter for the prosecution to demonstrate that it should not be exercised, but it is whether or not – it was mentioned, it was raised as a matter of principle the court does need to address and positively find that the residual discretion should be exercised in favour of allowing the appeal. So, in my submission, the outcome of it is that, in principle, it had to be exercised, and that is so whether or not it is differently or separately addressed in terms of whether it should be the same factors or different factors in relation to the permission discretion.
If it has not been addressed, it means that the task, the appellate task remains incomplete, if you like. The court should be required to exercise the discretion, and as I have said, the position now would clearly be very much more favourable to my client, if the Court was required to proceed to complete its task. If the Court pleases.
KEANE J: Thanks, Mr McDonald. The Court will adjourn briefly to consider the course it will take in this matter. Adjourn the Court, please.
AT 1.13 PM SHORT ADJOURNMENT
UPON RESUMING AT 1.24 PM:
KEANE J: Without endorsing the approach adumbrated in paragraph 29 of the reasons of the Court of Appeal, this Court considers that the appeal foreshadowed by the application does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. The application is dismissed.
Adjourn the Court, please.
AT 1.25 PM THE MATTER WAS CONCLUDED