Laybutt v Glover Gibbs Pty Limited Trading As Balfours NSW Pty Limited

[2005] HCATrans 26

[2005] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S113 of 2004

B e t w e e n -

ROBYN VANESSA LAYBUTT

Applicant

and

GLOVER GIBBS PTY LIMITED T/AS BALFOURS NSW PTY LIMITED

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 FEBRUARY 2005, AT 11.55 AM

Copyright in the High Court of Australia

MR M.J. NEIL, QC:   May it please the Court, I appear with my learned friend, MR R.I. GOODRIDGE, for the applicant.  (instructed by Firths)

MR D.G.T. NOCK, SC:   May it please the Court, I appear with my learned friend, MR. R.C. BEASLEY, for the respondent.  (instructed by Leigh Virtue & Associates.

McHUGH J:   Yes, Mr Neil.

MR NEIL:   Your Honours, I would put the substantial questions as follows as being involved.  Is it the law in New South Wales that a plaintiff, uninstructed in the proper use of a machine, may only succeed at trial if he or she formulates for the jury the precise instructions that ought to have been given; or, may the jury, having the same knowledge of the machine as the defendant, infer the instructions that ought to have been given; and/or, may the jury find that the defendant should have given whatever instructions ought to have been given, especially where the defendant does not give any evidence at the trial of such matters; and/or, may the jury use evidence of the occurrence itself as a basis for finding negligence, especially in the absence of any relevant evidence for the defendant; and, under section 35A(b) of the Judiciary Act, the requirements of the instant case, such that we would wish, if we were granted special leave, to advance on appeal why there has been a miscarriage of justice where the plaintiff, who was not a mechanic but a bakery hand, has lost a large jury verdict and is subject to an order for costs of the 13-day trial and the proceedings in the Court of Appeal?

Could I take your Honours to the application book at page 207 where there is set out in the judgment of Justice Meagher four points.  His Honour starts at the end of page 206 saying:

In other words, at the end of the day, his Honour left to the jury to decide-

(a)      whether the defendant should have given the plaintiff instructions,
(b)      if so, what those instructions should have been,
(c)      whether those instructions would, if given, have been followed, and
(d)      whether those instructions, if given and followed, would have averted an unexplained event.

Not one word of evidence was given on any of these questions.

Could I draw your Honour’s attention at least to the bundle of materials which we have provided which includes certain transcript of the trial taken from the Court of Appeal appeal book and the last page of that material sets out a portion of evidence from a Mrs Brown.  Mrs Brown was the production manager of the defendant.  She did not know how to assemble this machine.  She did not know how to do it.  There was not called by the defendant Mr Sean Spackman, who was the team leader of the plaintiff and who told her what to do, and when she said she did not know how to do it, he said to her, “Just give it a go” – in effect, see how you go.  Those instructions or those directions – they were not instructions – were put to Mrs Brown in cross-examination by my learned friend, Mr Goodridge, at the trial.  At line 35, or line 0 on page 474:

If you assume that when Mrs Laybutt said to the supervisor “I don’t know how to assemble the doughnut machine”, the response was words “just try and work it out for yourself”, you wouldn’t consider that as proper or appropriate induction – proper appropriate task specific training, would you?
A.       Definitely not.

Q.       Definitely not?
A.       I was not aware of that.

There is direct evidence of wrongful, improper instruction having been given, at the very least, and that, in our submission, demonstrates where his Honour is wrong about point (a).  As to (b), (c) and (d), could I draw your Honours’ attention to some parts of the trial judge’s summing up to the jury which was criticised in the Court of Appeal but, in our respectful submission, was very correct and adequate.  At application book 63, particularly line 20, there is a reference by his Honour to the jury in which he points out this:

What I would suggest to you is that there is evidence from which you might formulate in your own judgment a conclusion that:  a person in the position of employer with the knowledge that it had about this machinery immediately before the incident, should have recognised that it needed to be the subject of an instruction and that if that instruction had been given, the injury would have been averted. 

GUMMOW J:   What would the instruction have been?

MR NEIL:   Your Honour, I am happy to grapple with that.  This is not a case of alternate system.  It is not a case of coming along to show that there was some failure and you need an expert, say, to show an alternate, reasonable, practical method.  This was a case of an otherwise safe system that, because of lack of supervision and training, produced a danger to the plaintiff.  She was told to do trial or error.

We would submit, your Honour, particularly where the jury has as much knowledge as the defendant, that the jury is entitled to infer from its own knowledge of the machine and looking at the exhibits, what ought to have been done.  In this case, there was plenty of evidence by the plaintiff and she was cross-examined by counsel for the defendant, Mr Nock, on two possibilities:  that she had not either taken some lugs and fitted them into the channel where the outer sleeve should fit or she had just let it slip.  She said, “I didn’t let it slip deliberately”, and it was plain as day that what she had not done, because she did not know how to do it, was to fit the lugs into the channel.  The jury was entitled to say, on that evidence, that what has not happened here is she has not been told how to fit the lug into the channel.

Take a motor car.  It is all right to drive a car if you know how to but if you have never driven a car - or in a factory, drive that forklift or cherry picker - if you have not been shown how, it is all right to say, “Put it into gear”, but if you do not know how to put it into gear, there has been a failure of the training or the instruction. 

This judgment tends to suggest, and will be taken no doubt, as an endorsement of the proposition that for these sort of cases you have to come along either with an expert or you fail, or, alternatively, you have to provide to the jury chapter and verse when it is obvious to them.  Further, I would submit, your Honour, the jury is entitled to infer in this type of case that whatever instruction would have done the job should have been given, even if you can never work it out, especially where the defendant comes to trial and does not say what the instructions would otherwise have been.

McHUGH J:   But what is your answer to paragraph 9 in Justice Meagher’s judgment:

The central difficulty in the case lay in the plaintiff’s inability to explain what instruction were needed, or could have been given, a difficulty which can only have been exacerbated by her evidence that the machine’s operation was a matter of “common sense”.

MR NEIL:   She learned by trial and error later on how to do it and the way – it is perfectly obvious, your Honours.  We have put photographs in the materials.  How else would you do it?  If a plaintiff does not know what has gone wrong but the defendant does, and that is why we put Haslbauer on the list that repeats the Fredrichberg decision, that the jury can take evidence of the occurrence itself as bespeaking negligence if ‑ ‑ ‑

McHUGH J:   It can take notice of the occurrence when it is under the control of the defendant.  In this particular case the occurrence is under your control so Haslbauer and Fredrichberg have nothing to do with this case.

MR NEIL:   Your Honour, with respect, we would submit this was entirely under the control of the defendant, entirely.  The defendant said to this lady, who was not trained for this job – it was not even her job, she was not a mechanic, she was not a reassembler – “Try and see if you can do it”.  She complained that she did not know how to do it.  She was told, “Give it a go, see how you go”.  She was pitched into a dangerous situation, all under the control - in our submission, the occurrence then that occurred, she had not got in to the lugs properly, it fell and hit her hand, bespeaks negligence which the jury can take account of.  Unfortunately, perhaps, it was not drawn to the attention of the Court of Appeal necessarily in that way, but this judgment, in our submission, if it stands, will tend to override inappropriate cases, Haslbauer and Fredrichberg.

McHUGH J:   I do not think so.

MR NEIL:   It is a very sparse judgment.

McHUGH J:   There are not too many principles of law involved in this case and bold as the New South Wales profession is, I do not think they would be asking the Court Judges to apply a Court of Appeal judgment to overrule High Court judgments. 

MR NEIL:   Your Honour, what this judgment is, in effect, saying is that unless you bring some evidence, even if you do not know what the precise problem was, and it is in the purview of the defendant, unless you bring a witness, such as an expert, to say this, this and this, the jury cannot deal with it.  I was going to take your Honours next to the important passage allied to 63,20 of his Honour, at 66, at the end of the page, about 35, through to 67,15.  True it was that by then his Honour is talking about contributory negligence but he is re-emphasising a point he made:

you can assume quite reasonably that the employer must have known as much about this piece of machinery as you now know, you would not be entitled to make the same assumption about the plaintiff -

who did not know as much, as the jury found out at trial, and as the defendant always knew:

You have hade the benefit of long and detailed examination of the component parts of this particular piece of machinery of a kind that is reasonable to assume would have been equivalent to the knowledge that one could reasonably expect the employer to have had of that piece of machinery through both familiarity and the need to install it and explain it and indeed put it together.

That is not necessarily the level of knowledge that you could reasonably expect of the plaintiff.

In those circumstances, it is our submission that all the four points in Justice Meagher’s judgment and Justice Meagher’s paragraph 9, have failed to give consideration to, or recognise, that a jury in law, in our submission, may infer, particularly where they have as much knowledge as the defendant, and particularly where they are entitled to infer that the plaintiff at the time did not have as much knowledge as the defendant, that the case at least gets to a prima facie level and that is the difficulty with the judgment.  The judgment below has simply said no case to answer.

In our submission, it is completely wrong and is not supportable and that is why I raised the requirements of the instant case because it is a gross miscarriage, in our respectful submission.  We would certainly want to argue that in full detail, ultimately.  But what it is really saying is, if you do not come along and give chapter and verse with some expert, because the plaintiff would not know, how else would you know.  That is why I submit, your Honours, what the Court of Appeal has failed to recognise also is that a jury can say, “Look, there’s something’s gone terribly wrong here.  It’s the defendant’s fault for putting the plaintiff into this situation of trial and error.  The defendant’s come to our court, hasn’t even given any evidence”. 

Indeed, Jones v Dunkel could well be raised, but it was not.  It may have been, I do not know, if Mr Nock says it was I accept that.  It may have helped the plaintiff with the jury, but the Court of Appeal has really said, “Unless you do what may be impossible, you can’t get a prima facie case up”.  Even in the presence of all this type of evidence, the woman production manager herself did not know how to assemble it and it could hardly have been expected that this lady would know how to do this at her first try, especially when she complained. 

Now, your Honours, the photographs show and the evidence shows what you have to do is take the inner cylinder or piston in one hand and take the outer cylinder in the other hand.  You have to hold them together because the inner cylinder has to go in from the bottom of the outer cylinder ‑ ‑ ‑

McHUGH J:   Yes, I know, but consider what Justice Palmer said.  He said:

The process of screwing one cylinder inside the other was, in the words of the respondent’s counsel -

that is your side -

in this appeal, “not rocket science”.  In other words, it was a very simple process indeed, and one that any person of ordinary intelligence could perform merely by observing how one cylinder fitted inside the other.

MR NEIL:   That was not the plaintiff’s evidence.  She said – and it certainly might not be rocket science, your Honour, but it was not completely simple.  Your Honours only have to look perhaps at the originals, if I hand them up, of the photographs.  You have to take both hands at once and you have to screw the piston, taking one hand off both assemblies, into the top bracket where the conveyer belt is and then you have to get the outer cylinder up to where the lugs are shown, undo a couple of wing nuts and put them into the channel or the corridor.

It might be all right if you have been shown.  Demonstration, an explanation and an imitation is one of the well-known ways of teaching people.  Sometimes it is explanation, demonstration and imitation of skills.  None of that was done.  Justice Palmer was wrong.  He assumed it might be simple if you had done it a hundred times, or once or twice.  But where you have never, ever done it, in our respectful submission, there is no warrant whatsoever for Justice Palmer’s observations, with respect.  Page 142 in the documentation is from the Court of Appeal.  It starts at about line T:

You are screwing the inner piece, you are holding the inner piece up and you are holding the outer piece in position all at the same time is that correct?
A.       Yes -

and then a substantial number of questions go through page 143 which show the complexity of what has to be done:

Taking the second one, the one next to that, do you see that there is a small piece, obviously, the end of the inner piece that you can see in the photograph?
A.       Yes.

Q.       And there is a gap between the end of the inner piece and the outer piece?
A.       Yes.

By reference to photographs she pointed out the bottom of the outer piece in between the bottom piece and the doughnut‑hole-maker.  Throughout, one can see that it is a two-handed operation at which you have to hold both

pieces at once.  You have to screw one up and then you have to get the lugs into place for the other. 

Now, I come back to the idea of a motor car, your Honour.  She had never been shown how to do it, but worse, she had been told to try and do it, which was something that their own production manager witness said was definitely not something to which the plaintiff should have been subjected so that it really, in our submission, comes back to two principal points.  Has the Court of Appeal failed to consider, as we would submit they have, that a jury, especially one with this knowledge, is entitled to consider that there were some instructions and/or work out for themselves what those instructions would have been, that, if given, would have clearly averted the problem. 

The argument in Justice Meagher’s four points that you then have to have evidence to say what you would otherwise have done and whether it would have averted, in my respectful submission, is the type of argument that has been dismissed in cases like Percival where you say you do not have to go through a mantra of saying what I would have done if I had have been given a warning.  It is plain as day from the plaintiff’s evidence who said, “I didn’t deliberately drop this.  I didn’t want this to happen”, that a jury could make a clear inference, especially as she had worked out later how to do it, that if before this had happened she had been told what to do, she would have done it properly, and, also, that if she had done it properly it would have clearly averted the accident.

They are all, in our respectful submission, errors at the top of page 207 of the judgment of Justice Meagher and complete, with respect to his Honour, misunderstanding of the law and of the facts and of the fact that there was evidence because his Honour found his judgment as much on 9 as the top of 207, saying no evidence of these things was given and he must be taken to mean also, no evidence of these matters could be inferred on the evidence.  In our respectful submission, it clearly could have been inferred.  I see the time, your Honour, so if it please the Court.

McHUGH J:   Yes, Mr Nock.

MR NOCK:   Your Honours, this was a causation situation.  It has never been established clearly as to how the accident actually happened.

McHUGH J:   But it does not have to be, does it?  It was not established in Hamilton v Nuroof 96 CLR how the accidents happened, but this Court said if there is negligent conduct and the sort of thing that may have happened, that is sufficient to go to the jury on the causation issue.

MR NOCK:   That is so, your Honour, and I am not suggesting otherwise.  What I am saying is that when you get to the point where you do not know what caused the accident, then you have to then say if you do not know what caused the accident, what instructions could have been given that would have prevented the accident or prevented it occurring.  That is the problem, your Honour.  The problem is not so much, as your Honour has just said, if you can establish that there is some negligence.  The only thing that went to the jury was the question of instruction, not the question of system of work, not anything to do with the way in which the plant operated.  The only question left to the jury is quite clear in the start of the summing up of the learned trial judge, was instruction.  So if you are going to have instruction and you are going to say what instructions would have been given then the questions by Justice Meagher set out there, we say, are completely correct and none of those have ever been answered.

Take, for instance, the argument that was put about the lugs.  It is quite clear that the plaintiff, from the evidence that Mr Neil has referred you to, had a knowledge of the way in which the machine operated.  It is quite clear from the way in which he was able to answer questions during the course of cross-examination.  Your Honour might note at the bottom of some of those pages it has “RX”, but I think, in fact, it was, indeed, cross‑examination – that she had a good knowledge and, as she herself said, it is a matter of common sense, a matter of sheer common sense, how to do it.

It is not so, it was not established on the evidence, that this was the first time the plaintiff had actually done the connection of the doughnut maker parts.  If your Honour looks at those photographs - I do not know whether you still have them up there ‑ ‑ ‑

McHUGH J:   Yes, Mr Nock.

MR NOCK:    ‑ ‑ ‑ but there is a row of similar type of equipment and she was instructed, as she tells you, to reassemble the whole machine.  I think there are something like four of these machines and she was not sure as to whether this was the first one she did.  She thought probably not.  There was no evidence to show one way or the other.

McHUGH J:   Justice Meagher seemed to accept that she never reassembled a doughnut machine before.

MR NOCK:   Yes, but the machine itself consists of those four parts, your Honour, which are identical, that is true.  She had never actually assembled the machine but there were four similar parts that she was dealing with.

Now, your Honours, what…..to suggest that the jury could make up its own instructions.  What instructions were the jury going to make up?  Were they going to do it in respect of the fact that the cylinders were wet, and that was part of the argument that was attempted to be put before the jury but did not get there because it had not been raised in submissions?  Were they going to deal with whether the lugs were right?  Was it going to deal with whether you should hold onto something that you lift up and do not let it go?

With respect, your Honours, the evidence was completely lacking, and it is not a question of expert evidence.  It is just a question of the plaintiff simply saying what she knew and what she did not know and what caused her problem.  She does not suggest in any of her evidence anything at all about the need for instructions.  Her evidence was that it was a matter of common sense, “I gave it a go”.

Now, your Honours, has an employer in that situation got to formulate some specific instruction that must be given in a situation where an employee has watched somebody do what is, as your Honour Justice McHugh had said, not rocket science, as Justice Palmer found.  Has an employer got to do any more than that without something else?  That is really what this case is about.  There is nothing else in the evidence.  There is nothing else there to suggest what a reasonable employer should have done.

McHUGH J:   At the trial, was there evidence as to how you reassemble the doughnut machine?

MR NOCK:   Was there evidence from anybody other than the plaintiff?

McHUGH J:   From anybody at all?

MR NOCK:   The evidence was only from the plaintiff, your Honour, which is there in front of you.

McHUGH J:   But that was as a result of her later knowledge?

MR NOCK:   Your Honour, that is not clear from that transcript, and it is not clear from the way she put it.  She never complained, your Honour, about any particular difficulty.  All she said was it slipped.  Now, that is the problem and, your Honours, at page 54 ‑ ‑ ‑

McHUGH J:   Yes, but you are the employer, and you directed her to reassemble a doughnut machine.  She says, “I don’t know how to do it” and she is told, “Well, give it a go”, and it is a simple process once it is explained to somebody, and it is before the jury that it is a simple process.  Why was it not open to the jury to conclude that however she acquired a later knowledge she should have been given instructions to that effect before she was asked to reassemble this machine.

MR NOCK:   Your Honour, you come back to the situation that you have in this case.  You do not know what caused the accident, so you do not know ‑ ‑ ‑

McHUGH J:   Why could not a jury infer that it fell because she did not realise that part of it needed to be held in place by lugs fitted into the groove before you let go of the other cylinder?

MR NOCK:   Your Honour, she realised, she knew – and I do not have that - I think there are some references in that transcript that has gone up to you.  She was well aware of the lugs, and there are passages in that transcript, your Honour, she was well aware of what she had to do, because there are some passages.  I do not know that I can find it quickly.  Does your Honour have that transcript?

McHUGH J:   Yes, I have the transcript.

MR NOCK:   Page 94N of that transcript she said this ‑ does your Honour have that?

McHUGH J:   Yes.

MR NOCK:   Yes:

Q.       Do you remember whether you had the lugs in the groove?
A.       I’m pretty sure I did.

Your Honour, that is ‑ ‑ ‑

McHUGH J:   Might I say to both sides in this matter that the summary of argument is quite unsatisfactory, particularly from the applicant’s side.  The summary of argument should have set out the evidence, the material evidence, a summary of them that would have shown that there was a case to go to the jury.  Instead of that at 220 we get seven paragraphs which is headed “Brief statement of the argument” and before that a factual background which really does not tell you what the evidence is – anyway.

MR NOCK:   Your Honour, there is another passage at 95G where she was asked about the centrepiece:

You think you had the lugs in position . . . 

Q.       Well, the only way that it could have come down was you letting it go?
A.       But not on purpose.

Your Honour, that is probably what happened.  So that what instructions should an employer have given in that situation, that when you pick something up you should keep a hold on it and not let it go?  If we have got to the stage of that type of instruction being given when someone lifts an article – in this case it weighed, the only evidence was between a kilo and two kilos - that if you let it slip it might do some damage, as Mr Justice Palmer found, then that surely is way outside of the Wyong v Shirt principle of what a reasonable employer should have done.

His Honour’s charge to the jury in this case was based upon what they thought they should do, what was reasonable.  His Honour did not charge the jury in respect of the Wyong v Shirt principle, in other words, what a reasonable employer in the situation should have done that would have avoided the accident.  That is on page 47, your Honour, that charging in the appeal book, and in fact, one of the grounds of appeal below was that very point, but of course we did not get that far.  At page 48, your Honour, at line 10:

And what you have to say is, “If I were in that position and I were the plaintiff’s employer, and if I were, as the plaintiff’s employer, alert as I should be to the safety of the plaintiff, what would I have done?”

Your Honour, that is wrong, and we had had a considerable argument about that in the application before a verdict about it would have to be in respect of a reasonable employer.  So we would contend that that point in itself was the wrong way to put it to the jury in particular.  Your Honour, unless there is anything further, we simply say no evidence, not a question on which the jury could infer that the way in which the accident happened had to result in some negligence in instruction.  It could have just simply resulted from, and more likely resulted from, the plaintiff letting the thing go.

MR NEIL:   Your Honours, one of the reasons I asked for these transcripts to come up – and I understand what your Honour said earlier – was to help demonstrate there was a clear prima facie case.  Could I just take your Honours briefly to page 89 of the materials.

McHUGH J:   Special leave applications impose a tremendous burden on this Court.  We are now sitting one day each week of our hearing time devoted to special leaves.  We spend many, many hours reading the applications book, and when we come into Court we want to know what the case is, and the best way to inform us is through the application, and I am afraid your application – whoever is responsible for it, Mr Neil – is highly defective.

MR NEIL:   I am sure note will be taken, your Honour, but, having on behalf of my client apologised, could I take your Honour to page 89.  The bottom of the references to “PLAINTIFF RX” in many of these pages should read, cross‑examination, because at line D, Mr Nock put to the plaintiff:

Q.       Is it possible that you may have had a go at assembling these pieces before?
A.       No.

That was accepted judicially in the Court of Appeal.  At page 95D she said:

I thought I was doing the right way of setting it up.

Q.       Let me suggest to you you were.  You just let it go.
A.       Not on purpose, to end up like this, no -

meaning severely disabled.  At line I:

A.       But not on purpose.

In effect, she said:

A.       That’s what you’re saying -

about “You just let it go”.  At page 97, on this commonsense point, at line R:

Q.       Well, you didn’t find it difficult to work out how to do it, did you?
A.       Commonsense, but I didn’t expect it to come off, either . . . 

A.       The outer ring –

had come off.  Line W:

A.       It slipped, as far as I’m concerned.  I didn’t have to do it on purpose.  It come off.

And at page 98 she refers to common sense again, but at line L:

Q.       And the reason why your finger got caught was because you let that piece of pipe go.

A.       I can’t tell you that.

Q.        . . . You had it screwed on.
A.       I didn’t say it was screwed on.  I couldn’t recall.  That’s what you said.

Q.       If you hadn’t screwed the top piece on, the whole thing would have come off, would it not?
A.       No, they tie in together . . . 

Q.       No, that’s because you had already screwed the top piece on, is that right?
A.       Probably not all the way.  I can’t recall.

She was being pressed as to whether she just let it go.  At 99, lines J and K, she says to Mr Nock:

that’s what you are saying – it is not coming off, but it wasn’t all the way up, the whole distance.

She is referring, at line R, to the outer piece and then at page 100, line B:

A.       I can’t remember whether it was all the way screwed in to the whole tightness of the top.

It is perfectly apparent what she is saying is, “I thought I was doing it the right way, but was not doing it the right way”.  The part at page 48 my learned friend read out, the answer to that is they should have shown her how to assemble it, and this is in circumstances where, as your Honour notes from the evidence and the appeal book, she said, “I don’t know how to do it.”  His response was, “Just give it a go”, not, “Wait a while and I’ll come over and show you how to do it” or “Be careful of the lugs” or any other part of the process.

In our respectful submission, the jury was entitled to infer, not guess and not make up that lug or whatever had gone wrong, or something had gone wrong within the knowledge of the defendant, and the plaintiff did not have the relevant knowledge.  At page 94 is the reference to her working on it later and knowing how to do it and working on it later.  In our submission, the plaintiff had too little knowledge and that has proved the cause of the injury.  If it please the Court.

McHUGH J:   Thank you, Mr Neil.  There will be a grant of leave to appeal in this case in the exercise of what we call our visitorial jurisdiction, but Mr Neil, your notice of appeal does not raise any ground that resembles the argument that you have put to us, and it needs to be amended.  Your real point is that the Court of Appeal erred in finding that there was no evidence to go to the jury.  That is your simple point, is not it?

MR NEIL:   That is so, your Honour, but perhaps…..does – I did emphasise that today.

McHUGH J:   That seems to confuse the facts.

MR NEIL:   I will stay with what your Honour just put.

McHUGH J:   Yes.  You need to file within seven days a new notice of appeal raising the issue that you have raised in this argument.

MR NEIL:   Certainly, your Honour, yes.

McHUGH J:   It is a half‑day case, I take it?

MR NEIL:   Yes, your Honour.

McHUGH J:   The written submissions ‑ ‑ ‑

MR NOCK:   Your Honour, we may want a notice of contention in respect of the way in which the matter was put to the jury, as I indicated in my address.

McHUGH J:   That would not entitle you to a verdict.  It would be really a matter that ‑ ‑ ‑

MR NOCK:   Retrial?

McHUGH J:   A retrial, yes.  It is a matter that can be raised, Mr Nock, and pointed out to the Court so that if the appeal was successful, instead of restoring the appellant’s verdict, you would rescind the matter back to the Court of Appeal to deal with the notice of contention.  The Court will now adjourn to ‑ ‑ ‑

MR NEIL:   Can I just ask for the return of the original photographs, if it please, your Honour?

McHUGH J:   Yes.  The Court will now adjourn to reconstitute.

AT 12.32 PM THE MATTER WAS CONCLUDED