Kolalich v The Director of Public Prosecutions (New South Wales)

[1991] HCATrans 198

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SllS of 1990

B e t w e e n -

RICHARD KOLALICH

Applicant

and

THE DIRECTOR OF PUBLIC

PROSECUTIONS (NEW SOUTH WALES)

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
GAUDRON J

McHUGH J

Kolalich 1 7/8/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 AUGUST 1991, AT 12.26 PM

Copyright in the High Court of Australia

MR K.G. HORLER, QC: If the Court pleases, I appear for the

applicant/appellant, Mr Kolalich. Appearing with

me, MR S.J. ODGERS. (instructed by O'Connor

Bellamy)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR w. ROSER, for the

respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

MASON CJ: Yes, Mr Horler.

MR HORLER:	Your Honours, for the assistance, we hope, of the Court in the hearing of this application we
have prepared and now hand up an outline of certain
submissions that we rely upon and we have exchanged
those with a similar set with the solicitor.

MASON CJ: Thank you.

MR HORLER: 

Your Honours, before I come to the brief point

or points in this leave application it is necessary
for me to take the Court to a couple of matters of

chronology.  The decision which led to the appeal

to the Court of Criminal Appeal was the decision of

Mr Justice Sully on 13 February 1990. That is to

be found at pages 6 and following in the appeal

book. In that regard the present applicant, my
client, was successful and obtained a stay order in
respect of the ex officio indictment for murder

which had been found following upon the committal.

The Director of Public Prosecutions appealed

against that decision of Mr Justice Sully and that

matter came on for hearing in New South Wales in
the Court of Criminal Appeal in March and after
reserving for about eight or nine days the court,

on Friday, 16 March 1990, gave its decision, one judgment being the judgement of the whole of the

court. The judgment of the Court of Criminal

Appeal is in the appeal book at pages 27 and

following.

Application for leave to appeal to this Court

was put on by the present applicant's new

solicitor. We are out of time. We need an order

from this Court enlarging the time. The

explanation for our delay is to be found in the

affidavit of Mr Bellamy, our instructing solicitor.

That is also in the appeal book and he sets out, in

some detail, the delay not occasioned by him or his

client. And that, Your Honours, is to be found in

Mr Bellamy's first affidavit. That begins at

page 49 in the appeal book, that is the affidavit

of Graham Valentine Bellamy sworn 31 October 1990.

Kolalich 2 7/8/91

He sets out, and it might be useful to draw

your attention to it now, in paragraph 2, a

relevant summary of the chronology from the date of

the alleged offence, and in paragraphs 3 through to

6 inclusive, that is pages 50 to 51 of the appeal

book, he describes the course of the matter from

the time he received instructions, and we would ask

for the indulgence to proceed in this application,

although we are out of time, relying upon those

matters set out in those paragraphs of the first of

Mr Bellamy's affidavit. I do not know whether it

is opposed and I am afraid I have not raised it

with the Solicitor as to what their attitude is.

MR MASON:  Our attitude is to oppose the substance of the

application rather than the time aspect of it.

MR HORLER:  I will say no more on that aspect unless

required to do at the moment.

MASON CJ: Yes, you may as well proceed, Mr Horler.

MR HORLER:  And, Your Honours, while I am dealing with

Mr Bellamy's affidavit, that is as convenient a

place to take the Court, briefly, and I hope

succinctly, to certain relevant matters of

chronology. Could I ask Your Honours please to be

good enough to look at Mr Bellamy's first

affidavit, that is the affidavit of 31 October 1990

beginning at page 49 in the appeal book and in

paragraph 2 with successive Roman numerals he sets

out from 29 September through until the Court of

Appeal hearing, certain relevant dates. I will not

go to them or say anything in amplification unless

I am asked to. But there is the span of dates up

until the Court of Criminal Appeal decision of 8

and 16 March 1990. That is found on page 50 at

page 2 of that affidavit.

Your Honours, you will see from the appeal papers and the appeal book that the present

applicant, Mr Kolalich, was originally charged and

came before the magistrate at Glebe in the

committal proceedings over some four days on a

charge of murder.

He did not give evidence. He was represented

by_counsel and during the course of it we say, and

indeed the magistrate so held, that in respect of

an incident which had occurred in licensed premises

in King Street, Newtown, being an inner Sydney

suburb, at about 3.30 one morning there was a

violent incident on any view of it which caused the
death of the deceased.

Now, sufficient to say that during committal counsel and solicitor then appearing ior the

Kolalich 3 7/8/91

defendant in committal, made out what we say was a
case that brought Mr Kolalich's committal and his
defence within section 23 of the Crimes Act in New

South Wales which provides for the statutory defence of provocation.

Now, I should say that the defence of provocation in New South Wales under the Crimes Act

is available only in charges of murder, not

otherwise in respect of aggravated assaults. There

is much criticism from the judgment of the court

charging that both the magistrate, and indeed

Mr Justice Sully when he made the order granting

the stay, seemed to have ignored that fact.

What we say, and this is really the nub of the

submissions that bring us here, is that when the

magistrate set about the functions which he was

charged with under the Justices Act in New South

Wales, and in particular section 41(2) and

section 41(6), that it was entirely appropriate for

him to consider whether it be at 41(2) which in the

shorthand is the point of time when the no case

submission is made, and/or at 41(6), it was

entirely appropriate for the magistrate at

committal to consider the potential defence of

provocation given the function that he was charged

with.

Indeed, we would say in further support of

that, that had he not considered the potential

defence of provocation as provided for in murder

charges under section 23 of the Crimes Act he would

have been failing in his duty.

I stop myself there to go ahead jumping over

for the moment the judgment of Mr Justice Sully

when he granted my client the stay application.

True it is, and it is trite law, that the question

of what may amount to provocation is ultimately a jury question. We have not come here to argue to

the contrary. But the fact that in the jury trial

if the charge was still murder that it was a jury

question, subject to the directions given by the

trial judge, does not mean that it was

inappropriate for the magistrate at committal to

direct his mind to that defence, because at 41(6)

and arguably at 41(2) of the Justices Act a defence

that would be available for consideration by the

hypothetical jury acting reasonably and charged as

to legal principles, was a matter that the

magistrate was entitled, and further, must

consider.

The fact that ultimately at the trial, if it

got that far, it would be a jury question did not

prevent the magistrate from so considering that

Kolalich 4 7/8/91

aspect made out by the defendant's counsel in his

cross-examination and the fact that the magistrate

adopted that method of reasoning has attracted much

criticism, as you will see throughout the judgment

of the Court of Criminal Appeal in March of 1990.

It is convenient for me to take you briefly, if I

may, to some aspects where, we say, there are

fallacies in the reasoning.

BRENNAN J:	Can I just ask you what is the function of the magistrate under 41(2) and (6), and I draw your
attention particularly to the words "an indictable
offence"?
MR HORLER:	Yes.
BRENNAN J:	I took your argument to be that a magistrate has

to consider elements of the offence charged before

him.

MR HORLER:  Yes.

BRENNAN J: But with a view to determining what?

MR HORLER: Whether or not there is material evidence

available capable of satisfying the jury of the

commission of an indictable offence. Now, that

has, and continues to create difficulties. In

answer to what I apprehend Your Honour's question

to me, is this: a magistrate cannot be required,

and after the event cannot be criticized in a forum

such as this, because he has not specified the

indictable offence which he says there is a

sufficiency of evidence to send the defendant

forward.

What happened in this case - and all you have

are the two pages of the magistrate's decision

at 41(2) - is that the magistrate at committal,

having to focus on - it was not a seminar after

all - the possible indictable charges committed him
for trial on a charge of manslaughter.	Now, to

answer Your Honour's question completely, he did

not have to do that. He could have said, "I find

there is sufficient evidence capable of satisfying

a jury that you have committed an indictable

offence". However, he did, as indeed do the

majority, may I say, but not all of the magistrates

in New South Wales, commit him in respect of a

particular nominated indictable matter, namely

manslaughter, taking into account, as we say he was

entitled to and must, the available defence of

provocation, a partial defence, that reduces murder

from manslaughter, but in summary, in answer to

that question, Your Honour, he committed him on

manslaughter under the Justices Act 41(2)

Kolalich 7/8/91

and (6) - more particularly (6) - he did not have

to nominate a particular indictment.

BRENNAN J:  So the statutory function is to commit for

trial?

MR HORLER:	Yes.
BRENNAN J:	And then he may add, if he wishes, "on a charge

of"?

MR HORLER:  Yes, Your Honour. That has to be logically so

on looking at the subsection, yes. Nevertheless,

the important role in the criminal justice system -

and that is why we say there is a point of general

interest here relating to the administration of

justice in New South Wales that having considered

the material, the cross-examination and the strong

defence of provocation, he committed him for trial

on a count of manslaughter. Shortly thereafter,

and it emerges in another chronology, the Director

of Public Prosecutions did as that office was

entitled to do, found an ex officio indictment on

the basis of murder and it was a stay in respect of

a trial predicated on that indictment that brought

Mr Kolalich before Mr Justice Sully and,

subsequently, to the Court of Criminal Appeal.

I think I have to answer something that you have not asked me, with respect, because I

anticipate it coming from my right. The fact that

the magistrate had found there was an indictable

charge available against Mr Kolalich, although he
did not have to, as I have conceded to Your Honour,

does not avail my friend to say, "Now, well, look,

he could have just sent him for trial.", and saying

out of this affray in this restaurant in the small

hours, "Clearly some criminal indictable offence

has been proved. I don't know what. I'll leave it

to someone else to sort it out.", which would have

been unsatisfactory but theoretically he could do

by letter a few weeks later, "We say this is	that. He found manslaughter. "No", says the DPP
murder. We do not tell you why.", and that is
relevant to the abuse of process point. We say,
inferentially, "You, magistrate, got it wrong, it's
now murder and we say the benefit that we're
entitled to have had been put on trial for
manslaughter, no other reasons having been advanced
to suggest that that was an inappropriate charge,
that there was an abuse of process as a result of that."

Might I just go briefly to some aspects of

what we say are the fallacious reasoning in the
judgment of the court in their reserve judgment of

Friday, 16 March 1990. That, as I think I have

Kolalich 6 7/8/91

told Your Honours, begins at page 27 in the appeal

book and, in particular I want to take the Court,

if I may, briefly, to portions of that which is to

be found at pages 37 and 38 in the appeal.

At the top of 37 there is some general remarks concerning provocation and the limits of that

statutory defence confining it to murder. We are

faced with the clear terms of the statute and have nothing to say in relation to that. But, at about

line 24, on page 37, this occurs:

Furthermore, it is plain that, by the terms of

s 23, it is reserved to the jury to determine whether the act or omission causing death was "done or omitted under provocation".

So far, we have no quarrel, nor could we have any

quarrel, with that observation. We say it is not

the whole of the picture because the argument then

proceeds, and I pick it up at line 26:

That is not a decision which the law reposes in the committing magistrate.

Now in a sense, in that elliptical way, that is

right, but it is not the whole of it because the

magistrate cannot, nor did he presume in this case,

to say that the defence of provocation is provided

for by section 23 is made out. It was a matter

appropriately for him to take into account and that

is what he has done.

So what occurs on page 37 at line 24 is to

misascribe, if there is such a word - to ascribe to
Mr Waller, the magistrate, a process of reasoning

(a) that he did not undertake and (b) the result of

which was a proper decision for him to come to at

committal. It goes on:

That is not a decision which the law reposes
in the committing magistrate.	Not only is

this the clear provision of s 23, giving the

language of the section its ordinary meaning.

It is also the historical function of the

constitutional tribunal which determines guilt

in contested cases of homicide, the jury.

To that we say, as far as it goes it is

correct because it identifies what is a motherhood

proposition in the criminal law, namely,

provocation is that the jury and that the trial

judge must so direct the jury and identify those

actual admissions or conduct which might constitute

provocation.

Kolalich 7 7/8/91

Having said that, we say that the argument was

fallacious in that it ignored the slightly

differently skewed way in which the magistrate at

committal did and should have treated that

evidence, and that without more for the charge to

be elevated post-committal from manslaughter to murder without any reasons being advanced which

would bring it into the narrow exceptional cases
where an ex officio indictment might lie, therein

lies the abuse of process and there are important
questions, as I have already said, and it is in

Mr Bellamy's affidavit and and it is in our grounds, that bear upon and touch upon the

administration of criminal justice in the State of

New South Wales.

There is one other, with respect to them,

flawed area of argument. Page 38, if Your Honours

would be so kind, following on in the appeal book,

at the bottom of the page at line 24 the following

occurs:

The result is that the magistrate's

"decision", to the extent that it determined
that the respondent should not be committed

for trial on a charge of murder but only

manslaughter, was misconceived in two

important ways.

We say, reciprocally, the Court of Criminal Appeal,

with respect, misconceived it and that the approach

taken by the magistrate was one he was entitled to

and, indeed, one he was bound to follow. Now, let

me try and identify, if I may, briefly, what we say

the flaws in the argument ascribing something to

the magistrate were. At the bottom of 38:

First, it overlooked the fact that the

provocation which the magistrate personally

considered to justify conviction only of the

lesser offence is available in the limited

class of case only where the person charged is

on trial for murder.

Now, that is true but again that, with respect,

involves some blinked view by the Court of Criminal

Appeal in New South Wales in this case as to what

the_magistrate's function was, and you have already

have the benefit, if it be, of my submissions in

that regard.

Now, secondly it is said, this is at line 5, I

am on page 39:

Secondly, it overlooked the fact that bys 23

of the Crimes Act, the decision of whether or

Kolalich 7/8/91

not the provocation alleged warranted such a

finding is reserved by law to the jury.

It is really the same point. True it is that the

trial judge must so direct, explain what the law is

and what the available admitted evidence might be.

Having acknowledged that truism it is not a

criticism to make of the approach taken by the
magistrate in relation to the committal and that no

other reason having been advanced the only

inference one can really draw is that by the

presentation of an ex officio indictment for murder post committal that, in effect, without the benefit of hearing the other side, the DPP was availing

itself is really of some appellate procedure

against a decision they did not like properly taken
on available material under the Justices Act
discharging his function, that that was a proper
course for the magistrate to take and in the
absence of any material, what Mr Justice Sully
says, that is the DPP not condescending to favour

the accused with any material as to why it was said

that the elevation of the manslaughter to murder

was appropriate, that there was an abuse of

process.

We do not say that any particular individual

was involved in some malevolent act, but we say

that in relation to the administration of criminal
justice, that result and that committal, in the way

in which it occurred, having produced that result,

that what the Court of Criminal Appeal has done is

to misunderstand, in a serious way, the nature of

the procedure and requirement of the magistrate at

41(2) and 41(6).

BRENNAN J: But in a sense this is all rather beside the

point, is it not? I mean, it was not an

application to correct the committal order so that

he was committed for murder. That was accepted as

being a committal for manslaughter or, more

accurately, it was accepted as being a committal.

Now, the question is whether, by the addition of the words "for manslaughter" by the magistrate,

that in some way some vested right was then

conferred on the person committed.

MR HORLER: - I cannot say it was a vested right, Your Honour,

ancf I do not say that. What I was trying to put,

in terms of an unofficial de facto appeal procedure

is that, there being an absence of any material or

evidence at any stage from the Director of Public

Prosecutions to explain or justify the return to

the charge that had put this man in the dock, he
then being charged with murder when he was brought

before the magistrate at committal - he could not

be just in the dock as a result of a general

Kolalich 9 7/8/91

awareness of some criminality, he was charged with

murder and, true it is that at the end of the day

the magistrate did not have to commit him on a

specific charge.

The only inference, we say, is available is that the OPP, aggrieved by that result, has in

effect used its clear powers - and we do not come

to quarrel at that either, nor can we - to present

an ex officio indictment. What is really happening

is an appeal, which is not provided for in law, by an aggrieved OPP, against a decision which it does

like, of the magistrate to commit him on that

charge. That was the proposition.

McHUGH J:	Mr Horler, I just have some difficulty with the procedure. Could I just put to you what my
thinking is about the matter. This was an
information for murder and when the magistrate
reached the section 41(2) stage he had to determine whether there was evidence capable of satisfying a
jury beyond reasonable doubt that the defendant has
committed that indictable offence.  Now, that
question had to be answered yes, did it not?
MR HORLER:	Yes.
McHUGH J:	The magistrate was then required to proceed to

the 41(6) stage and, having regard to the evidence of provocation the magistrate was entitled to take the view - well, arguably entitled to take the

view - that a jury would not be likely to convict

the defendant of murder.

MR HORLER:	Yes.
McHUGH J:	He then should have discharged the information in

relation to murder and then recharged the defendant

with manslaughter, should he not?

MR HORLER: Logically, yes.
McHUGH J:	And that is the way it is usually done, is it

not?

MR HORLER: With respect, Your Honour, whose experience

before Your Honour was on the bench would be wider

than mine, but it is not always done that way. It

is blurred. That process that Your Honour has

identified must be logically correct when you

thread your way from 41(2) to 41(6). I am leaving

the intervening subsections to one side because
they do not matter for the moment, but that is what

should have been done but it is rarely done in that

logical way.

McHUGH J: It used to be done.

Kolalich 10 7/8/91

MR HORLER:  Yes, and it was not done by Mr Waller and I

would have to concede that you need a bit of work

to follow the blurred way in which this procedure

was followed out because I am reminded that the

decision, not murder but manslaughter, was first

articulated by the magistrate at 41(2) but it

repeats itself and clarifies itself at 41(6) after

the formalities of the intervening subsection when

the defendant was told he could give evidence and

did not do so and so on. The answer is, logically

yes, but it is rarely done. There is some view

and, perhaps, folklore that the discharge may, in

fact, given an unintended benefit to the defendant

and some magistrates are nervous about doing it in

that way.

McHUGH J: Well, it is a long time since I appeared in a

committal proceedings but that was the way it used

to be done, not really in relation to murder but in

relation to other offences.

MR HORLER: Yes. If not (a), but (b); I discharge you

on (a) and put you up on (b). It is done but it is

not widely done, but that is emperical evidence

from the bar table and not worth much.

BRENNAN J: What happens then, do they start the proceedings

de novo?

MR HORLER: If we succeed here, I just did not catch - - -

BRENNAN J:  No, I am just trying to follow the procedure

which - your answer to Justice McHugh. You put

forward as being, as I understood it, the ideal

procedure?

MR HORLER:  I am agreeing with Mr Justice McHugh that,

logically, if you are going to nominate a particular indictable matter that is how, logically, it should be done and I am agreeing with

Mr Justice McHugh that it is sometimes done and not

always done, but when it is done in the way in

which the Judge has reminded me, it does not start

de novo, it is a form of words similar to those

used by Mr Justice McHugh. In relation to

charge (a), you are discharged, however, and then

following the language of 41(6) in the New South

Wales Justices Act, "however" - and there is the

gear change - "I commit you for trial upon

charge (b)". So, Your Honour, it does not require
anything more than a form of words not very

different from that which I have announced.

McHUGH J: It probably should, having regard to the rules of

natural justice. I can remember being irritated a

could of times at the bar when magistrates would

commit you on a lesser charge, in effect, when you

Kolalich 11 7/8/91

were not really given the opportunity to address on

it.

MR HORLER: Yes. Theoretically, yes, and I suppose that

would require intermediately for the magistrate to

say, "Well, Mr Prosecutor, do you rely upon all the

evidence that was in respect of charge (a)", but

there is an artificiality about that which I think

we would all recognize.

Your Honours, those are typical of the wrong

approach which, with respect, we say informed the

whole of the Court of Criminal Appeal approach.

You have, in summary, the submissions. We say it

is a matter of general importance because it is

just not confined to the particular concerns of

Mr Kolalich but does touch upon the limited use of

ex officio indictments. There is the unresolved

matter of leave, we being out of time. Unless

there is any other matter, I do not wish to say

anything further.

McHUGH J: There is just one other point which perhaps I

can - - -

MR HORLER:  Yes.

McHUGH J: Section 41(6) has been changed since I was at the

bar. It was changed around 1985 or 1986, I think,

was it not?

MR HORLER: In the wake of Wentworth v Rogers, No 400, it

did get changed?

MCHUGH J: Yes.

MR HORLER:  Your Honours, we have here copies - we have

somewhere - of - if Your Honours do not have before you the current - 41(2) and 41(6), would that be of

assistance? Your Honours have it?

MCHUGH J: Yes.
MR HORLER:	Your Honour, yes, it did change but nothing in respect of those changes touches upon what we have
come to argue. Those are my submissions.
GAUDRON J:	What orders do you seek if you are successful?
MR HORLER:	I answer in the alternative and a bit of

chronology:  Mr Justice Sully made an order

staying. That is the order we would want

reinstated. In the alternative, with the

expression of the view of this Court, to go back,

to remit it to the Court - - -

Kolalich 12 7/8/91

GAUDRON J: Yes, because you do not seem to have dealt with

whether or not a stay was an appropriate order in

the circumstances.

MR HORLER: That is true, but maybe that is something we

have all overlooked, but it does not seem to have

loomed large - - -

GAUDRON J: Well, the Court of Criminal Appeal did not have

to deal with it, of course, in the way it

approached the matter.

MR HORLER: Well, Your Honour, we have something to say on

that on the second page of our submissions on

page 2 paragraph 4(a), (b) and (c). If

Your Honours please.

MASON CJ:  Thank you, Mr Horler. The Court will adjourn now

until 2.15.

AT 12.56 PM THE MATTER WAS ADJOURNED UNTIL

LATER THE SAME DAY

UPON RESUMING AT 2.33 PM:

MASON CJ: Yes, Mr Solicitor.

MR MASON:  I have a brief outline of our submissions.

MASON CJ: Thank you. Yes.

MR MASON:  Your Honours, we submit that it is wrong to

suggest that the Director of Public Prosecution had

any duty to give reasons for the decision which he

took and to suggest that his failure to be bound by

the magistrate's view of the matter was even

presumptively the basis of an abuse of process.

The question of bad faith was rejected by

Mr Justice Sully, at page 11, and the issue

therefore became one of whether the magistrate

having formed the view on the facts that he had

before him that the jury were likely to accept that

the matter would be reduced from murder to

manslaughter because of provocation, whether the

Director of Public Prosecutions was bound by that

in the sense that his disagreement with it amounted

to an abuse of process.

The Criminal Procedure Act section 4(2), which

is set out at page 32 of the application book,

confirms that which, in our submission, the common

law would establish that the power to .issue an

Kolalich 13 7/8/91

ex officio indictment is not controlled by the fact

that committal may have been on a different or

lesser basis.

In the passage from Gr~ssby's case, which is

referred to in paragraph 2 of the submissions,

there is a statement by Your Honour

Mr Justice Dawson with which the rest of the Court

agreed - 168 CLR 1, at pages 13 and 14, at the very

bottom of the page that:

The Attorney-General or Director of Public

Prosecutions is not bound by the decision of a magistrate to commit or not to commit a person for trial. An indictment may be filed whether or not the accused has been committed for

trial upon the charge contained in the

indictment, indeed, even if the accused has

been discharged in committal proceedings.

Your Honours, it is not on our list but if I could just ask the Court to note that in a recent

decision of the New South Wales Court of Appeal van

Lieven v Stewart, (1990) 21 NSWLR 52, at pages 55

and 68, the members of the court there said that

the proper course for a director, who is unhappy

with a discharge of a person on committal, is not

to appeal to the Court of Criminal Appeal but to

exercise the power of presenting an ex officio

indictment.

McHUGH J: But a lot may depend upon the facts,

Mr Solicitor. Take a case where at the 41(2) stage the magistrate acquits of a murder charge but then

recharges the accused in relation to manslaughter

and as a result the accused goes into evidence.

MR MASON:	Yes.
McHUGH J:	Now, for the DPP to prefer a murder indictment in

those circumstances might well constitute an abuse

of process, the accused having prejudiced himself,	in the sense that he exposed himself in relation to
the lesser charge, having been discharged of the
more serious charge?

MR MASON:  An accused could be in that position - I see what

Your Honour is putting, that he did that in

reliance upon the fact the murder charge had not

been satisfied.

MCHUGH J: Yes.

MR MASON:  I would submit that that would be, as it were -

that decision would be made against the background

and the knowledge that the attorney or the DPP has

the right to present an ex officio indictment, or

Kolalich 14 7/8/91

to put it another way the decision of the
magistrate does not foreclose the right of the

jury, in a proper case, to consider the charge

preferred by the Crown and, in my submission,

whilst I would accept there maybe a situation, I

would not accept that every time the scenario you

put to me that would occur.

In the present case, the relevant facts are at

pages 39 and 40 and at line 18 of page 39 there is a summary of the facts which we would respectfully adopt, but here it was far from a sure thing that a

jury would have to be satisfied that provocation

was made out in this case. I know I have reversed

the onus but subject to that, if the Court would accept the submission that there was some delay, the facts were that the deceased hit someone and

then there was a scuffle. The deceased went into

the kitchen, was followed by the respondent, and

was there stabbed by the respondent. So, in our

submission, as - - -

DEANE J: But, are you not hurdling the question of

principle to get on to the facts of this case in

that, as I read what the Court of Criminal Appeal

has said, and as I read what you say in

paragraph 3, even if you had a case where the Crown

conceded that provocation was inevitably made out

and no properly instructed jury could convict of

murder that, none the less, the magistrate should

not confine himself to manslaughter and as I read

paragraph 3 of your submission, none the less, the

Crown should not confine itself to manslaughter.

MR MASON:  Yes. That paragraph is put, clearly I hope, by

way of an alternative submission because we are

saying in this case that there were alternative

bases, but taking that as the question of
principle, in order to convict of manslaughter

based upon provocation, the jury would have to be

satisfied of the mental element to be found in

murder and then if there was evidence of

provocation the Crown, if unable to rebut that

beyond reasonable doubt, the jury would - - -

DEANE J:  I follow that, but that is a problem with the

judgment in that if the judgment of the Court of

Cr1minal Appeal stands, rightly or wrongly, it will

establish the practice whereby the magistrates in

New South Wales feel that in any case where

provocation is raised they should not confine

committal to manslaughter.

MR MASON:  Yes.

Kolalich 15 7/8/91

DEANE J: Now, that may be right. It does not accord with

my understanding of an area where my understanding

is very limited.

MR MASON: 

The submission we put, Your Honour, is that the

provocation is a peculiar doctrine of the common
law which applies only in the case of murder, but
notwithstanding a dictum to the contrary in a case

called Holmes's case, it is now well established by

the cases referred to in paragraph 4 that the Crown

must establish all of the elements of murder

before, in effect, the question of provocation

comes in to play.

There must, in addition, be evidence suitable to go the jury of the elements of provocation, and

if there is, the matter then goes to the jury, and

whilst New South Wales law for a time reversed the

onus, it is clear now under the present section 23

that the common law position is that the Crown must

negate provocation, once there is evidence of it,

beyond reasonable doubt.

Section 23 in its terms, in our submission, does correctly support the Court of Appeal's

decision that he proper way in which to charge for
provocation is to charge with murder and to leave
the question of provocation to the jury, and it is

set out on page 36.

GAUDRON J: 

Does that mean that the OPP can never charge manslaughter where he is satisfied of provocation;

that he himself must always charge murder?

MR MASON: That is the submission, yes, Your Honour.

GAUDRON J: And magistrates must always commit for murder?

MR MASON:	No, the magistrate does not have to commit for anything. It would appear from section 4(2), which
is referred to on page 32, that the legislature
contemplated that magistrates might and probably
would commit for a particular charge, but section
42 does not appear to require that situation.

GAUDRON J: But in any event they cannot commit for

manslaughter and fail to commit for murder, in the

way that was done in this case?

MR MASON: Well, they cannot, by committing for

manslaughter, bring about a situation that - I

think, to answer the question that is being put to

me, it would never be improper for an indictment

for murder to be presented if there was a committal

for murder on this alternative proposition.

Kolalich 16 7/8/91

GAUDRON J: The question is, really: leaving aside no

specific charge, if there were to be a committal on

a specific charge, is it your submission that the
only specific charge which might properly be the

subject of a committal order in a case such as this

one was murder?

MR MASON:  Yes, it is, but I do have an alternative

submission on the facts of this case.

DEANE J:  Mr Solicitor, what if at the 41(2) stage the

magistrate was of the view that the evidence was

not capable of satisfying a jury that provocation

was negatived? Surely the only indictable offence

that remains at that stage is manslaughter; and if

he is making a ruling, should he not then direct to

the accused, who has to decide whether to embark on

evidence, that the indictable offence that he is

finding the evidence is capable of satisfying a

jury acting properly, is manslaughter.

MR MASON:  Your Honour, I do not accept that section 41(2)

requires the magistrate to have in mind a specific

and limited indictable offence.

McHUGH J:  But surely that flows from 41(1). He has to

discharge him as to the information then under

inquiry. Can that mean anything except the

information which is dealing with the offence upon

an information under section 21, brought under

41(1)?

MR MASON:  Can I answer that in two ways. We did, over the

lunch time, find two cases which clearly satisfied

the practice that Your Honour was referring to

earlier. Could I just give the Court the reference

to those? They are ex parte Williams (1928)

45 NSWWN 189 and ex parte McQuillan, (1932)

49 NSWWN 87, and in each case the court said that

if the magistrate decides in effect that the

offence charged has not been made out, the course

is to dismiss it but to recharge and to allow an

opportunity for further cross-examination or an

adjournment to follow if there is anything fresh

arising from it.

BRENNAN J:  Were the provisions then the same as they are

now?

MR MASON:  In so far as they use offence upon an

information, yes. Section 42(6) has been changed

following Wentworth v Rogers.

McHUGH J: 41(6).

Kolalich 17 7/8/91

MR MASON: 41(6), thank you. But the reference to an

indictable offence appears to have been there from

the beginning.

Notwithstanding that, in my submission, while

section 41(1) clearly has in mind an information

charging with a particular offence, 41(2) does not

require the magistrate to, as a matter of law, be

satisfied in relation to the particular offence

charged.

The doctrine of natural justice may, of

course, provide some limit upon the magistrate's capacity to, as it were, reformulate the charge, but -

McHUGH J: But so does subsection (4), because he has to be

asked what his answer is in relation to the

particular charge.

MR MASON: Yes. Well, subsection (4) flowing from

subsection (2) - and one of the questions is "Do

you wish to say anything in answer to the charge"
so presumably by that stage there has to be no

doubt as to what the charge is.

It would not, in our submission, have to be

the charge that was the subject of the original

information. It could be the accusation of which a

prima facie case has been shown when the magistrate

forms the view under subsection (2) that an

indictable offence has occurred and, presumably,

there would be no doubt at that stage what

indictable offence or offences the court has before

them.

BRENNAN J:  Mr Solicitor, I guess, of course, it is in utter

ignorance in relation to New South Wales practice

under these provision but it strikes me that it is

curious in the extreme that if, in proceeding under

section 41, a magistrate comes to the view that he

is going to discharge an accused on the charge then

before him the accused is not then discharged once

and for all on that charge because he is only

before the magistrate on the question of his

custody. Now, once he is discharged of that he

cannot surely be kept in custody except on some

fresh charge?

MR MASON:	Yes.
BRENNAN J:	So if the magistrate then chooses to charge him,

as it were, from the bench or some alternative
charge, surely some justification for continued

custody must be shown in the form of new evidence.

But this seems to have been regarded as a practice,

if I understand it correctly, which treated the

Kolalich 18 7/8/91

whole as one simple proceeding although

ex hypothesi one would think, in principle, he must

have been discharged from custody?

MR MASON:  The cases I referred to speak about the

depositions to be tendered and used in the inquiry

in the substituted charge so there would - and I

perceive what you are putting to me - be formal

compliance with what is behind Your Honour's

question in that the evidence is freshly put before

the court subsequent to the amended charge.

BRENNAN J:  I can understand that there may be two separate

proceedings, both of them governed by this section.

What I do not understand is how this section can,

as it were, apply to proceedings which are but one,

where there is a change in the charge in the form

that is suggested there.

MR MASON:  And that "but one" in this case being murder.

BRENNAN J: Well, the charge of murder, yes.

MR MASON: That being the charge of the information.

BRENNAN J: Yes.

MR MASON:	Well, it is certainly clear that in this case the magistrate did not really do that. There are
perhaps two answers to Your Honour's question: one
is that it was not open and the magistrate really
reached the stage where he should have discharged
the person altogether; the second is that the
words "an indictable offence" have that flexibility
that I was putting. It is not so clear, in this
case, that the magistrate was as specific as is
suggested.  May I take you to page 3 of the
application book because what he said at the top,
this was after having asked, as it were, the 41(4)
questions and being told that no evidence was to be
called: All right, for the reasons that I have given I am not satisfied that a jury would not convict

on this charge of manslaughter.

And that is the 41(6) decision.

I will commit to trial.	I think I will commit
to the District Court.	It may be of course

that my decision is only an intermediate

decision, that some other decision could be

made by the prosecuting authority.

We would submit that clearly is an indication that

the magistrate was not intending to .foreclose the

right to do otherwise and it may be a question of

Kolalich 19 7/8/91

whether that was not the operative order.	He then
goes on, in the next paragraph:

The defendant is committed for trial before the District Court -

and there is no reference at that stage to what the
offence for which the committal was. So, on one

reading of what happened he did, following

Your Honour Justice Brennan's approach, confine

himself to the charge that was before him and

commit notwithstanding that he expressed his own

view as to the fact that he did not think that it

would go beyond manslaughter.

McHUGH J: Section 41A(l)(b) seems to be a legislative

recognition of the practice of magistrates
committing for trial in respect of an offence which

is not identical with that with which he was

charged.

MR MASON:  Yes, thank you.

DEANE J: It appears, does it, Mr Solicitor, that nobody

said what appears at page 4 of the book? Just

reading it I would have thought the magistrate said

that.

MR MASON:  I am sorry, I have not picked up what Your Honour

is putting.

DEANE J: The:

defendant is committed for trial on a charge

of manslaughter to the District Court,

Sydney -

or am I reading the wrong thing?

MR MASON:	Yes, about line 40?
DEANE J: Yes. Nobody, in fact, said those - - -

MR MASON:  Those words were not actually said. That is some

sort of court record of what goes before, in my

submission.

DEANE J:  It is not a matter of submission. Somebody said

it or somebody did not.

MR MASON:  Yes. Well, going by the inference I would get

from reading the transcript, I would so submit.

McHUGH J: Magistrates used to say that. That is what they

used to say.

MR MASON:	Yes.
Kolalich	7/8/91
DEANE J:	I mean, it is strange if some clerk was just left

to translate what the magistrate said about

Liliana Domoska into a formal condition of a bail

order.

MR MASON:  Yes.

BRENNAN J: Is there a stamp that they use in the

magistrates court?

Not any more.

MR MASON:  Your Honours, an additional case that was on my

friend's list, O'Neill, (1989) 46 A Crim R 394, a

South Australian case where a person was committed

for sentence on one charge and was indicted on a

greater charge and on the particular facts held not

to be an abuse of process for that having occurred.

Your Honours, in support of the submission in

paragraph 3, we rely primarily upon the wording of

section 23 which, as it were, encapsulates the law

on provocation in New South Wales.

McHUGH J: But, the magistrate has got a duty under 41(6),

and if he forms the opinion that having regard to

all the evidence before him or her, a jury would

not be likely to convict a defendant of an

indictable offence, then he or she is obliged to

discharge the information then under inquiry.

MR MASON:  Yes, and if the word "an indictable offence" in

the earlier provisions means "the specific

indictable offence", then what should have happened

here was a discharge followed, perhaps, by a

recharging of the accused with manslaughter. We

would submit that had that happened there would

still have been no abuse of process: (a) because

the OPP was entitled to take a different view; and

(b) because to take, as it were, the higher ground,

that is the only way in which manslaughter based on

provocation can properly be charged.

GAUDRON J:  Can I interrupt? I am confused, Mr Solicitor.

Do you concede in a case such as this that the

magistrate could discharge on murder and recharge

and commit on manslaughter?

MR MASON:  r think, Your Honour, it must follow from the

submission I am putting about the way the matter

must go to the jury, as it were, on the indictment

that neither could the magistrate discharge the

information if it is an information for murder, but

as long as the magistrate was satisfied, as he had

to be, that there was the mens rea for

murder - because you do not get to provocation

without that - then even if there was strong

Kolalich 21 7/8/91

evidence of provocation, the charge which could

have gone to the jury was one of murder - I submit,

murder only - and, therefore, the magistrate should

not have discharged that information.

McHUGH J: But if he forms the opinion that a jury would not

be likely to convict of murder, then he is obliged
to give effect to his opinion, is he not, by reason

of section 41(6)?

MR MASON: Well, here, certainly by way of one alternative,

I retreat to emphasize the words "an indictable

offence" as being the test for a discharge under
subparagraph (6). Therefore, unless he was of the

opinion that the jury would not convict of any

indictable offence, then the power to forthwith

order the discharge is absent.

If, of course, he was of opinion that they

would not convict of murder but would be likely to

convict of shoplifting, there may well be all sorts
of obligations in natural justice to see that a
properly formulated charge was conveyed and the

matter, as it were, started afresh, albeit that the

transcript was re-tendered.

GAUDRON J:  Why is not negativing provocation, once there is

evidence of it, an element of proving murder? When

you have regard to the Woolmington principle, which

is now incorporated into the Crimes Act, as it

were, why would you think that a prima facie case

of murder is made out simply because the

intentional element is satisfied and the act

causing death is satisfied?

MR MASON:  The answer I would give is because the

reformulation of the common law of provocation in

New South Wales in section 23 speaks of it being on

a trial for murder, and so, illogical though it

seems, that is the straitjacket that Parliament has

cast provocation which, granted that it will result

in the only proper verdict being one of

manslaughter, the only proper charge is one of

murder.

Another way of putting it is that Parliament

has said, in effect, that that must be a matter for

the jury and, in that way, as it were, picking up

on the historical aspect of provocation, which

really was a method of tempering what was

otherwise, in the eye of the law, seen to be the

correct verdict.

BRENNAN J:	Is there a practice in New South Wales of asking jurors who return a verdict of manslaughter on a
trial of murder, and where provocation and absence

Kolalich 22 7/8/91

of mens rea are both raised, as to the ground on

which they acquit of murder?

MR MASON:  I cannot answer that from my own knowledge. May

I see if I can find out? My junior, who is a Crown

prosecutor, says from his knowledge, no, but I do

not know whether -

McHUGH J: In my experience they just always take a general

verdict.

MR HORLER:  We agree, inasmuch as anecdotal experience.

BRENNAN J: It raises difficulties for sentencing.

MR MASON:  Yes. Of course, the jury would be entitled to

reach their verdict by different paths, anyway,

so - - -

BRENNAN J: It is not a question of the jury being obliged

to answer the question, as to whether the jury

would wish to answer the question.

GAUDRON J:  One aspect of what you put, Mr Solicitor, seems

to be that the appropriate prosecution discretion in a case like this would either be not to charge

at all or to charge for murder.

MR MASON:  May I ask, you are putting to me, perhaps,

a - - -

GAUDRON J: Hypothetical -

MR MASON:  - - -stronger case where

GAUDRON J: No, in any case. Well, yes, perhaps -

MR MASON: Yes. Let it be assumed that it was an

overwhelming case of provocation. That certainly

is what I am putting in that alternative argument.

GAUDRON J: So, it is a departure from practice, is it not?

MR MASON:  On my instructions, no. On my inquiries the

practice has always been to charge with murder.

McHUGH J:  What about diminished responsibility, because 23A

raises exactly the same question about diminished

responsibility as 23 does with provocation. On

your submission, the magistrate could never commit

for manslaughter by reason of diminished
responsibility and the accused could not even be

indicted for manslaughter by reason - - -

MR MASON:  Yes, what I am saying must apply. The language

seems to be identical, yes, Your Honour.	I just
noticed 23(1) says:

Kolalich 23 7/8/91

the jury shall acquit ..... of murder and find

the accused guilty of manslaughter.

Section 23A tends to make the jury's alternative

function perhaps a little less obvious. If there

is:

Diminished responsibility ..... shall not be

convicted of murder.

McHUGH J:	He carries the onus?
MR MASON:	Yes, there is an onus and there is a liberty to

convict of manslaughter. So, perhaps, I answer too

readily. But in so far as it is the words:

Where, on the trial of a person for

murder -

that seems to be the critical factor in the Court

of Appeal's decision and, in my submission, there

would be the same and therefore the correct way is

to charge with murder.

GAUDRON J:  Can you accept a plea to manslaughter?

MR MASON: Certainly, yes.

GAUDRON J: Without a trial? On the mere presentation of

the indictment?

MR MASON:	Yes.
GAUDRON J:	Why is that?
MR MASON:	I have to say because -

GAUDRON J: If it is exclusively a jury question it cannot

be, you will have to say something else about 23.

MR MASON:  Yes. The words:

on the trial of a person -

really are not meant in their technical sense on

what I am submitting, they do not mean when you are

put upon the jury.

GAUDRON J: But if they do not have their technical sense,

in that context, why do they have their technical

meaning in the sense that you cannot take it into

account in formulating the indictment?

MR MASON:	Because they have got to be given some meaning and the meaning they are given, in my submission,
is they mean where a person is accused of murder.

Kolalich 24 7/8/91

GAUDRON J: Yes. Why does not one - yes, where a person is

accused of murder?

MR MASON:  Yes.

GAUDRON J: But I mean one can be accused of murder in all

sorts of ways?

MR MASON:  But not by an indictment charging manslaughter.

GAUDRON J: But I would have thought that what the words

were really intended to do was to overcome the

problem which outside - well in another context

might be, "It is a defence to murder."

MR MASON:  Yes.

GAUDRON J: Clearly, we are not dealing with a defence in

the strict term. What is being dealt with is a

matter that must be negatived by the Crown so you

do not talk about it in terms of "it is a defence",

what you do instead is use that formula:

Where, on the trial of a person for murder.

If it is intended to do more than that it does seem

to run into difficulties with the Woolmington

principle.

MR MASON:  I certainly am not suggesting that there is any

reversal of the onus. Section 23 clearly confines

whatever tinkering it does with the common law to

murder and there is a debate, in any event, whether

you can have provocation as a defence to other

forms of homicide or, indeed, other crimes. My

submission is that those words have to be given

some meaning in their present context, and the

meaning given by the Court of Appeal was correct.

DEANE J:  Mr Solicitor, you get a little support for your

global approach to subsection (6), do you not, if
you turn your mind to alternative offences?	I

mean, if the charge was larceny or receiving it

would create an absurd position if the magistrate

had to decide which was the more likely, and could

commit the accused for trial on one only.

MR MASON: Y~s, especially if as I understand the law to be

that the jury can convict even on just a

probability basis. Yes, thank you.

GAUDRON J:  I mean, if the magistrate were to form a clear

view one way or the other, then you are in a

different situation.

MR MASON:  You are if an indictable offence means a specific indictable offence and none other, or if it means

Kolalich 25 7/8/91

the offence charged and none other. On one of the

permutations and combinations of my submissions, I

submit it does not mean that.

McHUGH J:  Mr Solicitor, do you accept that the magistrate

must identify the offence for which the accused is

committed for trial?

MR MASON:  No, I certainly do not. My submission is that

the section really contemplates that in the

ordinary course he or she would not.

McHUGH J: Well, how would you know how to fix bail? In the

case of murder bail would usually be refused.	In
the case of manslaughter it would probably be
granted.

MR MASON:  If it were critical, one can see why the

magistrate would need to condescend to

particularity, but if we were dealing with a whole

range of different ways of charging complicity in

involvement in a homicide or a number of

alternative technical charges of dishonesty, my

submission is that it is not a prerequisite to the

exercise of the magistrate's jurisdiction to commit

that the magistrate formulate the charges with the

precision that a Crown prosecutor would in finding

a true bill.

McHUGH J: That may be but nevertheless surely it is an

inquiry under 41(1) which itself goes back to 21.

If you lay in information that a person is

suspected of committing an indictable offence, and

then under 41 you have a hearing on the charge of

that indictable of f·ence, surely that is what he is

committed for trial on, the offence that is in the

indictment, or in the information.

MR MASON:  You are not saying that and none other, that is

the point where I am seeking to disagree.

McHUGH J:  He might be put up on other charges.

MR MASON: In my submission, in effect, once, as it were, he

is committed for trial on anything within the

realms of natural justice within the concept of the

hearing that has gone before, once he has been

committed for trial bail matters are dealt with

separately and the formulation of the particular

charges for which he is to be indicted, under the

practice, are determined separately and

subsequently, not just as a matter of drafting the indictment but also as a matter of considering the merits of whether to put the person for trial

anyway.

Kolalich 26 7/8/91

McHUGH J: But it sounds extraordinary that somebody would

be committed for trial, sent out to Long Bay and

somebody said to him, "Now, what are committed

some general charge". for?", he said, "I'm sorry, I don't know, it's just

MR MASON: Well, it would obviously be a fair guess that he

was committed for the offence for which he was

charged under 41(1), but not necessarily.

GAUDRON J:  He is going to charged again under 41(4), is he

not- - -

MR MASON:  Yes.

GAUDRON J: - - -at some stage? For the procedures in

41(4), (5) and (6) to be followed there must be a

charge again at that stage?

MR MASON:  Yes, but not necessarily encompassing each and

every permutation and combination of what he may be

guilty of or said to be guilty of. I appreciate,

from Your Honour Justice McHugh's example earlier,

that one can think of a situation where the person
thinks, "Well, they've only got me on this one.

Well, I will go in the box and see what happens.", but in the ordinary course we would say that nothing in the language of section 41 requires the

matter for which he is charged, either under 41(1)

or under 41(4), to be the matter or the only matter

on which he is committed for trial.

DEANE J: But what if he is charged with 20 offences of

robbery with violence and 20 offences of larceny
and the magistrate finds that no jury is likely to
convict him on any but one charge of larceny, is
the submission that the magistrate simply says,
"Well, after all this hearing on these 40 charges,

I find that there's evidence on one charge of

larceny and that's good enough, you're committed

for trial"?

MR MASON:  No. Well, certainly at the 41(4) stage he would

be entitled to know which one he is looking at.

DEANE J: Assume, in your favour for the argument, that he

passes the 41(2) stage in relation to the 40 and it

is-when the 41(6) stage is reached that the

mag1strate said, "The jury would obviously throw

out 39 of those charges"?

MR MASON:  Then, as to the one that is - the magistrate

would clearly formulate in the course of the

reasons he actually gave the one that was left and

identify it.

Kolalich 27 7/8/91

DEANE J: But he would be acting wrongly if he said, "I

discharge you on 39 of these and commit you for trial on the fortieth", because is that not the implication?

MR MASON:  If he indicated which 39 were swept away, and

said, "I commit you on the remaining one", he would

not be acting wrongly but as long as it is clear

which one is left he does not need to formulate

like an indictment the different legal permutations

and combinations of the fact situation that is

left.

DEANE J: Then it follows from that answer, does it not,

that the argument you are putting as to the
magistrate acting wrongly is confined to the case

of murder/manslaughter.

MR MASON:  Oh, yes. The acting wrongly in committing him

for manslaughter, based on provocation - - -

DEANE J: Because the Court of Appeal's reasoning seems to

apply to any case where the decision is for the

jury.

MR MASON: Well, I would submit that that should be read

subject to the context, which is the section 23A

provocation context.

BRENNAN J:  Mr Solicitor, in section 41(6)(a), at the end of

it, there is a reference to discharging the accused

as to the information then under inquiry. I notice

that there is a reference to an information under

section 21 in section 41(1). Is there any other

information to which the 41(6) reference might

apply, other than the information in 41(1)?

MR MASON:  No, there could not be, as I would read it,

Your Honour.	It must be the information then under
inquiry.	Of course, there may have been

amendments, as it were, in the course of the

committal, but subject - - -

BRENNAN J: Yes, subject to whatever power of amendment

justices have.

MR MASON:  Yes. It would be the one referred to in 21 and

41_(1).

BRENNAN J:  And in the case of multiple offences, is there

case to join in one information multiple offences?

MR MASON:  The answer is, yes, I would submit. Can I just

check? No, there would be separate informations.

BRENNAN J: Separate informations.

Kolalich 28 7/8/91

DEANE J:  You can have more than one information in the one

document?

MR MASON:  Yes.

BRENNAN J: If you have separate informations, the problem

which you discussed with Justice Deane has to be

read, as it were, distributively.

MR MASON:  Yes, and so he would identify the ones that were

being struck out and leave the one that was there,

so the person could say, "Well, what have you been

committed to trial for?" "The one that is left",

but non constat, in our submission, that the
magistrate has to commit him on that basis or that

the trial or indictment has to be formulated in the way of the original information, because there will be a fresh information when the person is indicted

for trial.

MASON CJ: Is a separate summons issued in respect of each

separate information?

MR MASON:  At the committal stage or the trial stage?

MASON CJ: At the committal stage.

MR MASON:  I think the answer is yes. With that limited assistance to the Court, those are our submissions.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Horler.

MR HORLER: There is nothing on which I wish to reply, thank

you, Your Honour.

MASON CJ:  The Court will consider its decision in this

matter.

AT 3.23 PM THE MATTER WAS ADJOURNED SINE DIE

Kolalich 29 7/8/91