Liddy v The Queen

[2002] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A25 of 2002

B e t w e e n -

PETER MICHAEL LIDDY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 2002, AT 3.33 PM

Copyright in the High Court of Australia

MR D.H. PEEK, QC:   May it please the Court, I appear with MS N.M. HURLEY for the applicant.  (instructed by McGee Solicitors) 

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR. P.F.D. MUSCAT, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia)) 

GUMMOW J:   Yes, Mr Peek. 

MR PEEK:   Thank you, your Honour.  If I may take the Court to page 272 of the application book, being the beginning of the summary of argument. Your Honours will note that, of course, there are four different matters said to each constitute special leave questions and, in light of the time, I can really only tender the submissions and do the best I can with them.  I note that while ‑ ‑ ‑

GUMMOW J:   Well, that is true of anybody, I think, Mr Peek. 

MR PEEK:   Yes, your Honour.  I note that while A, B and C go to all of the charges, D would only go to some of the charges, and not all.  The situation from the applicant’s point of view is that he was sentenced to a term of 25 years with a non-parole period of 15 years.  There has been an appeal against that sentence, but judgment is presently reserved, so, for the moment, that remains a correct statement. 

Can I observe, as appears from the bottom of that first page, that although there are a number of different complainants, the evidence in relation to them did differ quite substantially in the sense that if one takes the ends of the range, as it were – and I just use the first letter of the complainants, not their names – Y had only known the applicant for a few months, and apart from the one alleged incident, which comprises both counts 9 and 10, which occur seriatim, he only went on one other trip, and there is no other impropriety alleged.  Now, at the other end of the spectrum, there is D, who alleged a long relationship with the applicant, much longer than those in the middle of the spectrum that I have been postulating.  Going, then, into special leave question A, the effect of ‑ ‑ ‑

GUMMOW J:   Well, can I come straight to what may be the point that is worrying us, to some degree – is count 16.  What do you say about that? 

MR PEEK:   Yes, the joinder point. 

GUMMOW J:   Yes. 

MR PEEK:   That, of course, does present quite a neat, concise point.  It commences at 279 of the book.

GUMMOW J:   Assume you are correct that it should not have been joined.  What are the consequences? 

MR PEEK:   Well, the consequences are, as I submit in that written material that follows, namely, that the trial was not a trial properly conducted according to law.  These were matters that were ventilated by counsel and ruled against counsel.  The trial commences with that charge invalidly joined.  Now, that had a number of prejudicial consequences to this particular accused, going beyond the usual prejudice that accrues to a person who is charged with too many counts.  Just before I go to the particular prejudice, the Court will see ‑ ‑ ‑

GUMMOW J:   But the particular individual involved in count 16 was also a complainant. 

MR PEEK:   He was.  That is D, the person at that end of the spectrum, if it please the Court.  The thing is this ‑ ‑ ‑

HAYNE J:   So what effect did the joinder of the charge have on the way in which the trial was conducted or the evidence that was led?  For the purpose of argument, assume joinder was not authorised by the relevant presentment rules. 

MR PEEK:   Yes.  The answer to your question appears in my paragraphs 52 to 56, at 279 to 280 of the outline.  If I can speak to those.  The person, D, stated that his relationship was quite different, longer, many sexual acts, and involving, much later, many years later, this matter of count 16.  Now, the later sexual acts – and there were many of them – that is to say, occurring after the charges in the indictment – were justified by the prosecution on the basis that they, as it were, tended to bridge the gap between the last substantive charge on the indictment and the matter of count 16, which occurred some years later.  So that we have, at the top of page 280: 

The only relevance of the evidence as to what happened after the occasion which is the subject of charges is to explain the relationship which the accused had with (D) over subsequent years which is relevant to your consideration of what actually took place in June 1999 –

now, that is count 16, the Court will appreciate –

and may also explain the lack of any complaint. 

Now, of course, the first answer to your Honour’s question then is that if you did not have count 16 on the indictment, you could not so justify the leading of all of this evidence post the last charge on the indictment.  As I go on to submit at paragraph ‑ ‑ ‑

HAYNE J:   But why would it not have gone in as other uncharged acts are sometimes led in trials for offences of this nature? 

MR PEEK:   Yes, but you do have to justify the basis.  Now, you come to a stage where a certain amount of evidence had been led in relation to the person, D.  There was no, as it were, relationship basis, or anything like that, which would justify the continued adducing of evidence subsequent to the last particularised count.  And so it was that the prosecution, as it were, sought to raise themselves by the bootstraps via count 16. 

HAYNE J:   But they said, did they not, that it was relevant to explain lack of complaint? 

MR PEEK:   Well, that is said, but it is very hard to see how that can be so, because the period of time from the first charge to the last charge, in relation to D, was such as to, on that basis, explain the lack of complaint, namely, a continuing relationship. 

HAYNE J:   Well, work backwards.  Assume no count 16.  Could evidence have been led of what the prosecution alleged was an attempt to suborn the witness? 

MR PEEK:   We submit not.

HAYNE J:   Why is it not evidence of admission by conduct? 

MR PEEK:   The reason I say that it should not have been led was because, of course, it was very equivocal, really, in its nature, in the sense that there was a good deal of cross-examination going to the credit of this person, as to what indeed did happen, concerning ‑ ‑ ‑ 

HAYNE J:   Like any evidence of admission, it was challenged, and challenged, perhaps, well or badly – does not matter, but the admissibility of it: it could have been tendered, could it not, as evidence of an implied admission by conduct offering a bribe to a witness to remain silent? 

MR PEEK:   We would submit that, your Honour, even if it had been so tendered, you see, that would not have in turn justified the leading of further sexual offences, after the time ‑ ‑ ‑

HAYNE J:   But if it were tendered in that way, would it not then have inevitably followed that the whole of the relationship between the accused and this man would have come out? 

MR PEEK:   We would submit not, because it would simply be leading a number of vague and unspecific – but many of them – uncharged acts, with no justification for so doing.  There was no relationship justification shown by that later period, and nor did the leading of the evidence on count 16 justify that.  So we go on to make the submissions at 53 and 54 on that basis, and, at 54, that even if the facts on count 16 were as stated by D, that could not give rise to a consciousness of guilt of the particular D or C counts, as distinct from wrongdoing short of those charges.  In other words, there were further, and other, problems arising out of that evidence in relation to count 16.  Justice Mullighan considered that a consciousness of guilt could extend to all of the complainants.  We would submit, certainly, that was incorrect. 

The other thing is this, your Honour, that because of the structure of the learned trial judge’s summing up, her Honour put to the jury that they could use a finding of guilt on any one count when considering any other count.  The Court will appreciate that she put it very much as a matter of random selection – you start with any count you like, you consider your verdict on that, and if you find the accused guilty, you then – in some way that her Honour never specified – carry that guilty verdict forward and give weight to it when considering the next count that they chose. 

Now, of course, there is no reason why the jury may not have therefore, because count 16 was wrongly there, and if they did make a finding of guilt on that, use that and carry that forward in that way, as left to her Honour.  If that count had not been on the indictment, that possibility would have been precluded.  So there are very real reasons going beyond the general prejudice to the particular prejudice, in relation to this applicant.  Would the Court permit me to move back and say something in relation to the other matters?  The point about special leave point A is that this case, as I submit at paragraph 5, is the first to combine the issues of the effect of a mixture of convictions and acquittals in relation to one complainant with ‑ ‑ ‑

HAYNE J:   It is the staple diet of Courts of Appeal around this country.  Juries do listen to directions; do look for confirmatory evidence on counts; and commonly bring in verdicts of acquittal of some and conviction of others. 

MR PEEK:   Yes, but what I was actually going on to say was, combining that problem – because it can present some problems – with the further problem in this case, namely, the carrying forward of those convictions ‑ and, as the Court knows, take W, for example.  There are four convictions and three acquittals.  But here, we have a situation not only that problem, per se, but that the judge left it to the jury to use those convictions when considering any other counts in relation to the complainants.  So you have these two problems merging, because we submit that you have the original Jones v The Queen problem or submission, which basically is that the only real explanation – staying with W, for the moment – as to those three acquittals was that the jury simply were not prepared to accept his word on those matters beyond reasonable doubt. 

HAYNE J:   That is an argument that proceeds from this fallacy that the credibility of a witness is a single, indivisible thing.  It is not.  Witnesses can be believed as to some things, disbelieved as to others, with no loss of reason on the part of the jury. 

MR PEEK:   Well, we would submit that that is a matter of considerable discussion and contention – for example, in that recent decision of the Full Bench of New South Wales in Markuleski, and the literally dozens, I think, of cases that are referred to in that Full Bench decision – and, of course, there have been a number of judgments since Markuleski.  The question of the precise status of Jones v The Queen, in relation to such a matter, is ventilated in those decisions. 

Now, we would submit that there should have been a direction, if it please the Court, to the jury that if they did have a doubt as to the credibility or reliability of the complainant on one or more counts, then they should take into account that doubt when considering other counts involving that same complainant.  Now, those directions, of course, were not given, and should have been given. 

That requirement, or the extent of that requirement, has been a matter of considerable debate in the State Courts of Appeal right across the nation, as to the extent of that requirement.  Now, when one adds to that general debate the factor that is additional in the present case, namely, that you then move on from there to using such verdicts in relation to a consideration of other complainants, we submit that you do have an important special leave point. 

The other matter is special leave question B:  the nature and extent of the obligation of the judge to give directions as to how the jury should use propensity or similar fact evidence.  At paragraphs 415 to 420 of her Honour’s summing up – and I am here taking this from 276 of the outline – her Honour directed that:

evidence on any one Count could be used on any other –

count –

and that a finding of guilt on any Count would then become circumstantial evidence –

that could be taken into account when considering the other counts.  We submit that they were misdirections, and important misdirections. 

The critical point is that all of this evidence was in issue; not only the evidence going direct to the particular charges, but also what is referred to as the uncharged acts.  Now, we do not know the extent to which the jury accepted this evidence, except in so far as we can look at one complainant and say, “Well, W – they have accepted him on four, but not on three”.  The question then becomes, what is the so-called similar pattern of behaviour that the jury must be looking for, which provides a logical foundation for a reasoning process from a finding of guilt on one count to a consideration of guilt on another? 

The point is that there were no directions as to what level of factual pattern, or factual matrix, that the jury has to find before they can logically use it in that way.  So, in other words, if, for example, they do reject W on counts 1, 4 and 6, as they did, how were they to use a finding that count 2 was made out when considering count 3?  Because this is what the judge told them that they could and should be doing.  So we submit that her Honour failed to answer the following vital questions.  What was the relevance of the evidence of one complainant to an assessment of whether the facts as asserted by another complainant occurred?  In other words, it is not just, “you can use it”, but what is the relevance of it? 

For example, how could the evidence of the person Y – I mentioned at the lower end of the spectrum – just the one incident, and no other uncharged acts – be at all relevant when considering the quite different factual scenario – the denied factual scenario – involving, say, D, at the other end of the spectrum?  In other words, what was it about a finding that one complainant was telling the truth that could be carried over to an inquiry as to whether the next complainant is also telling the truth?  We would submit that the jury would have concluded this – if they could conclude anything from the summing up, in this regard – that if they determined on one count that the appellant is a sex offender, that finding makes it the more likely that he is guilty of the sex offence in the next count they chose to consider. 

That effect, of course, becomes the more exacerbated as you go up the chain, because, of course, if you make a number of convictions in relation to W, each relying on the other, you then, as it were, import those three into the next one, concerning another complainant, and whatever it is,

that is never explained, must have more weight than one – and so it goes up the chain.  Yet the factual situations, as I have endeavoured to explain by virtue of referring to a spectrum, were quite different.  The Crown always said, “We do not rely on similarities”, and the reason is obvious, because there were not the requisite similarities to bring it into received doctrine.  Therefore what the Crown really did was say, “Here are these complainants.  They are all saying something vaguely similar, but with no real particular points of similarity, but what they are all saying is that this man is a sex offender”. 

You then get to a situation where you start with W, who is the first on the indictment.  You are prepared to accept him in relation to four, and not in relation to seven – and I do not wish to be harping on that, but there were good reasons, that I have set out in my argument, as to why they would reject him on three – being the photographic evidence and the objective evidence that the accused was actually able to marshal, after such a long period of time.  The point is this, and it cannot be controverted:  wherever there was a situation where he was able to get some objective evidence, or where there was a date that was specified – and so he was able to lead evidence that he was not there – he was acquitted.  When it was just a vague allegation, “Well, it happened so many years ago, at this courthouse or that courthouse”, then, of course, we find convictions. 

That, as I have already said, was, of course, very much tainted by the invalid joinder of count 16, as well.  So the point is that there was not any sort of a sufficient similarity of modus operandi between counts that could form the basis of logical reasoning.  The matter was never put on the basis of corroboration, and for good reason, because there, you would have had to have had a comparison of alleged similarities to form the basis of reasoning, once again. 

The point is this, in conclusion, that if the jury had convicted on all counts, then perhaps it could plausibly be suggested that the underlying unity hypothesis, which the Crown founded on, had been borne out.  But when you find that in fact they did not – they rejected that hypothesis, and, we say, for good reasons – then, of course, the foundation of admissibility falls, and, more importantly, the clear need for very precise directions as to the law and as to the logic of reasoning and illogicalities of reasoning were absolutely crucial in this case.  Well, I see that my red light is on, so unless there is anything else, I have to stop there. 

GUMMOW J:   Thank you, Mr Peek.  Yes, Ms Abraham. 

MS ABRAHAM:   Your Honours, if I could take the points in the order that my friend has dealt with them, and that is dealing with the joinder of count 16 first.  If I could indeed take that point back to front, because, in the Crown’s submission, it is properly joined, but your Honours have asked a question, “What effect would it have had if it was not joined properly?”  In the Crown’s submission, absolutely none.  The Crown says that because the evidence was such that it was capable of giving rise to a consciousness of guilt, and a consciousness of guilt not only in relation to the boy, D, but, indeed, in relation to all the boys.  So in the Crown’s submission, the evidence would have been admissible nonetheless, from that perspective. 

HAYNE J:   How do you get it as evidence of consciousness of guilt about boys other than the one to whom the money was paid? 

MS ABRAHAM:   Your Honour, the circumstances in which the offer – a benefit occurred was after the commencement of a police investigation into, obviously, the applicant’s conduct.  When the applicant approached D, it was knowing that the police were investigating generally, and C, in particular, so the approach was made specifically from that point of view.  The significance of D in the picture is that he in fact is the longest involved, in the circumstances, and so if he co‑operated with the authorities and spoke to them, there would be a number of names raised, obviously, in addition to the sexual activities.  And so ‑ ‑ ‑

HAYNE J:   Including the names of all of the other persons named as victims on the indictment? 

MS ABRAHAM:   I do not think that he remembered all of those particular ones ‑ ‑ ‑

GUMMOW J:   He remembered C, did he not? 

MS ABRAHAM:    ‑ ‑ ‑ but C, he clearly did. 

HAYNE J:   Yes. 

MS ABRAHAM:   He did not remember two of them, but remembered C, and, indeed, W, as well, who had not come to light at that particular stage.  Of course, by providing information to the police of the activities that he was involved in and the sorts of talk that were occurring, then, clearly, it was opening Pandora’s box. 

HAYNE J:   Now, it is said that the evidence that could not have been led is the evidence of subsequent uncharged acts involving the man, D.  What do you say about that? 

MS ABRAHAM:   In the Crown’s submission, that was relevant nonetheless ‑ ‑ ‑

HAYNE J:   How? 

MS ABRAHAM:    ‑ ‑ ‑ in terms of the – I know the word “relationship” is a word frowned upon, but, in this particular case, there was no dispute about the contact between victims, and, indeed, in relation to D, no dispute.  The issue was:  was it an innocent contact, or a non-innocent contact?  So in the Crown’s submission, one cannot cut it off at the last charged act, as opposed to the last act that occurred, because the evidence was that in relation to D, it was the most frequent.  He was the favourite of the applicant.  The evidence was, it continued whilst he was at the Nippers; when he left, it did not, but he maintained contact with him afterwards, sporadically.  Therefore it is relevant also, obviously, to the question of lack of complaint.  Indeed, her Honour makes a reference to that when dealing ‑ ‑ ‑

HAYNE J:   Though relevant, why would it have been admissible?  It is evidence of other uncharged, discreditable acts.  You say, it is relevant.  Why would it not have been otherwise excluded? 

MS ABRAHAM:   Because, in the Crown’s submission, the relationship between the boy, D, and the applicant was critical to the decision, because he did not make a complaint at all, until after the bribe.  Indeed, he continued to have contact with the applicant during that period of time, some of which was sexual, and some of which was not – indeed, when he left the Nippers.  So, in the Crown’s submission, for the jury to properly understand that relationship – he being the favourite one – and to look at items like the lack of complaint – why there was none – one needed the whole of the picture.  Also, importantly, in the Crown’s submission, D could not precisely say when count 14 and 15 happened.  He describes an incident and identifies it by peculiar features, but not in terms of time. 

The sexual conduct with the other boys the Crown is saying is occurring at the same time and continued to occur whilst they were still at the Nippers until they left.  Therefore, in the Crown submission, it would be totally artificial to say, okay, in relation to D, the favourite, ignore anything that occurred after the last charged act in relation to him but there would be evidence of this sexual activity occurring with others whilst he is still part of the group.  So, on the Crown submission, that is why it would be admissible nonetheless.

Can I add that the directions given in relation to this count were very favourable to the applicant in that her Honour can find it, to conscious of guilt, to counts relating to D and to C, so not to all which was favourable.  And one does not have the consequence that my friend suggests, namely, the jury might have thought he is guilty of this and therefore reason impermissibly because, of course, there is verdicts of not guilty.  They clearly have not done that and indeed a verdict of not guilty in relation to C, we say on very good grounds in terms of a date, but they clearly have followed her Honour’s directions in that way, therefore, the consequence is not as my friend suggests.  In the Crown submission is, in fact, properly joined on the information because it indeed comes out of the same facts that give rise to the charges.

HAYNE J:   I do not think that is going to be your strongest point, Ms Abraham.  Barrell & Wilson at some stage is going to have to take a very good, hard look, you are dealing with some pretty intractable words in the statute.  There we are.

MS ABRAHAM   Bearing that in mind ‑ obviously I have put my submissions in my outline, but, your Honours, when one thinks about it quite logically in a case like this, the fact that one is bribing in relation to the very charge in one sense it is hard to see a more interwoven in terms of the common factual basis and it would be quite artificial to have to do one trial in relation to that count and then lead all the sex offences at another trial in relation to all the sex offences but lead that count.  So, the Crown submission, indeed, properly joined because it does come within those words, which words have been adopted I think in Queensland in the case of Collins and the same language of the statute.  In any event, we say it makes not one iota of difference whatsoever.

GUMMOW J:   What about the other grounds?

MS ABRAHAM   In relation to the grounds concerning the direction to the jury about a finding of not guilty in relation to one victim in relation to another, in my submission no such direction is required in any case, as a matter of law or practice.  What the learned trial judge is required to do, according to Longman, is to direct the jury on matters that is necessary to ensure a fair trial, matters that a jury would not understand.  In my submission Jones in the High Court does not say that that is the direction that is required and, indeed, even the cases as my friend cites in his outline which were mainly New South Wales cases, does not say, in the Crown submission, this must be given in each case.  It is very much dependant on the facts and far from what my friend has said in the Crown submission there is, in fact, a very good basis for the differentiation of verdicts in a case like this.  In the Crown submission it would be very wrong that there would not be a direction required in every case that where there is a victim of multiple sex offences that somehow their evidence requires a special direction for that reason alone.

Here there was directions about scrutinising the evidence with care and also dangerous to convict, lengthy and strong directions on delay and, indeed, the typical direction at the beginning of the summing up – if they

did not believe a witness on one topic then that obviously is relevant to whether they accept them on others.  That is common sense, with respect, and a jury does not need to be told the obvious.  As I have said, in the Crown submission there are very good reasons why it is, in this case, that no further direction is required.  Indeed, the Court of Criminal Appeal said that there may well be cases, but this is not one of them, and in the Crown submission for good reason.

The submissions by my friend concerning the directions to the jury in relation to the charges and their use to be made:  in the Crown submission, far from it being a case where there were factual differences with vague similarities, the Crown case was compelling and the use to be made of the evidence with the proper directions having been given was obvious.  The boys did give very similar accounts of sexual activity and sexual discussion in various locations with the applicant.  In the Crown submission the directions given were not directions to reason impermissibly and, quite to the contrary, it was explicitly not to do so and as is obvious from the verdicts they did not do so. 

So, in the Crown submission the directions here were perfectly appropriate.  Any further directions that could possibly have been given could only have been, with respect, favourable to the Crown.  In the Crown submission if one looks at those directions then clearly their use to be made is specified and their use only to be made, of course, if they find the fact or allegation proved beyond a reasonable doubt.  So, in my submission there was no need to go any further.  In fact, the jury do not have to find, they do not have to apply a test admissibility to the evidence.  They do not have to find an underlying unity between each of the charges, the test of admissibility is performed by the trial judge.  It is then for the trial judge, having found they were admissible, to direct the jury accordingly and that is what occurred, with respect, in this case.

Those are my submissions.

GUMMOW J:   Thank you, Ms Abraham.  Yes, Mr Peek.

MR PEEK:   May it please the Court.  The first point is that I would wish to emphasise that there is considerable authoritative proposition and I refer to some of it at my page 279 and, in particular, footnotes 27 and following, that invalid joinder in these circumstances leads a quashing of all of the verdicts per se, in other words, it is not necessary to go to particular prejudice but that it is not a trial by law.  We would rely on those authorities quite apart from particular prejudice here and one can see them referred to at paragraph 27, they stand for that proposition.  Certainly, in those circumstances, it would not be a proviso situation because this is a serious infringement of the man’s rights.

The next is, I perhaps did not entirely understand my learned friend’s submission, but one option to the judge that would have been available if this view of joinder was to be taken was to sever the person D entirely from the other complainants and here the sexual charges in relation to D in conjunction with count 16.  That would present a much fairer situation, it would be two trials rather than a number my friend is postulating and it would have this as an added benefit, that it would show that really the evidence of D was not logically relevant to a question of whether the accused performed that one act, or seriatim two counts, in relation to Y on a completely different occasion in completely different circumstances.

The third and final point in reply is allied to that second, namely, that my learned friend is suggesting, I think, that my submissions in relation to required directions are tantamount to saying that the jury have to perform or carry out a test of admissibility.  That is exactly not what I am saying.  What I am saying is that when one is in this area of this extremely prejudicial adducing or a finding cross‑admissibility in relation to one act being considered on another allegation then one must have the most punctilious directions, to use the word of Lord Hewitt, in relation to such matter less there be that temptation to, as it were, view the mass and say there must be something in this because there were so many allegations.

We submit, and obviously I cannot go through the summing up, but really it is a matter of our submission that the matter turns on paragraphs 415 to 420.  That direction of series of directions by her Honour that you can pick a count, any count, and find how you like and then use that finding on another count.  It is there that what we are talking about is an inherent lack of illogicality as distinct from asking the jury to perform a test of admissibility.  Of course, that is the way that I have put the implication.

Unless there is anything else, those are the matters in reply, may it please the Court.

GUMMOW J:   Yes, thank you.  Ms Abraham, what do you say about the cases in footnote 27 on page 279?  They are South Australia decisions I see.

MS ABRAHAM   In my submission, they do not stand for the bald proposition that whenever there is joinder that has been improper the consequence is all ‑ ‑ ‑

GUMMOW J:   Wilde certainly does not stand for that proposition.

MS ABRAHAM   Sorry?

GUMMOW J:   Wilde v The Queen in footnote 28 I do not think stands for that proposition.

MS ABRAHAM   In the Crown submission, these are South Australian cases that are there cited - does not stand for the proposition.  Rather, they turn on the facts of the particular cases, namely, in those cases, that is Owen‑Pearce ‑ ‑ ‑

HAYNE J:   Bonner and Hackett.

MS ABRAHAM   Yes, it turns on the facts of those cases.  On those cases the joinder having been inappropriate there was evidence that would not have been led and not cross‑admissible, with respect, and, in my submission, it does not follow simply because there is a lack of joinder.

GUMMOW J:   We will take a short adjournment

AT 4.11 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.15 PM:

GUMMOW J:   We regard it as not arguable that any miscarriage of justice occurred in this matter. That being so, this is not an appropriate case in which to consider the operation of the provisions of section 278 of the Criminal Law Consolidation Act 1935 (SA) governing the joinder of charges in a single information, nor the correctness of the English decision in R vBarrell & Wilson (1979) 69 Cr App R 250. Special leave is, accordingly, refused.

AT 4.16 PM THE MATTER WAS CONCLUDED