Lloyd v The Queen

[1994] HCATrans 412

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Western Australia

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Law Courts Building

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Perth WA 6000

OF PROCEEDINGS ·~--

AUSCRIPT	GPO Box 9955
Perth WA 6001
Phone [phone]
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IDGH COURT OF AUSTRALIA

TOOHEY J

No P18 of 1993

ANTHONY JAMES LLOYD

and

THE QUEEN

loyeen 2.8.94 1

PERTH

10.17 Al\1, TUESDAY, 2 AUGUST 1994

HIS HONOUR:	Mr Lloyd, you appear in person, do you.
:rvtR A.J. LLOYD:	Yes, sir, I am.

HIS HONOUR: Yes, thank you. Mr Hope?

:rvtR A.N. HOPE:	If it please your Honour, I appear to represent the
respondent.
HIS HONOUR:	Yes, thank you. Yes, Mr Lloyd?
:rvtR LLOYD:	Thank you, sir. Sir, I'm here to present this application

for a stay as a result of a chamber summons which I filed with the quashed. I lodged an application for special leave to appeal against that order within the required time and I filed the application books as required and I am awaiting a listing. The District Court where the trial was ordered has listed the re-trial to commence on 8 August, that's next Monday and when it became apparent that the High Court was not going to hear my special leave application before the date listed for the trial I made an application to the District Court and that application was refused.

registry on 28 June. Unfortunately, sir, the court being in recess it was
impossible to get an earlier listing than today. Sir, the facts of the
situation are that I am subject of an order from the Court of Criminal

HIS HONOUR:	It is an application to vacate the dates fixed, do you
mean?

:rvtR LLOYD: Yes, sir.

HIS HONOUR:  Yes. Although the fixing of the dates by the District

Court took place back in March, did it not?

:rvtR LLOYD: Yes, it did, sir. At the time both the representatives of

the DPP and myself and the court itself anticipated that the special leave

application would be heard before 8 August.

HIS HONOUR:  I notice you say that in the papers. What is the basis

for that, Mr Lloyd?

l\1R LLOYD:  Sir, I made that known to the judge at the time, and I in

fact opposed the setting of the date on those grounds even though I

conceded that it was likely that it would be heard.

loyeen 2.8.94 2

ms HONOUR: But was any mention made of a likely date for the hearing of the special leave application or the time when it might be heard? I ask you that because I know you say it in the papers, but it seems clear enough that when Jackson J, refused the application to

adjourn, he did later I think in - - -

1'1R LLOYD:	On 28 June, sir.
ms HONOUR:	On 28 June - - -
1'1R LLOYD:	No, sir, I'm sorry that's not right. I must have been
early June.
ms HONOUR:	No, it was 9 June, was it not?
1'1R LLOYD:	Yes.
ms HONOUR:	It was at least apparent to him that it was unlikely that

the special leave application. would be not be heard before the trial but
may not be heard this year, although I am not sure what the basis of that

assumption was.

1'1R LLOYD:  Sir, there is a letter on the file addressed to the DPP, it

says that from the Deputy Registrar which says that, and this is a May
letter, that it will be either held when the High Court is here - when and
if the High Court is here in October and if not then, at the first video
conference and certainly by the end of the year and that information was

before Jackson J.

ms HONOUR:  Although the transcript of the hearing before Jackson

J, contains some, at least on my reading of it, some assumption by his Honour that the application for special leave might not be heard before the end of the year. I suppose relatively it was clear to his Honour that

it was not going to be heard before the date fixed for trial.	-
1'1R LLOYD:_ Yes, sir.
ms HONOUR:	Nevertheless, his Honour was not prepared to adjourn

the date fixed for 8 August?

1'1R LLOYD: No, sir. He was not.

ms HONOUR:  Just going back in time, Mr Lloyd, it was known to

you I take it, from 25 June 1993 when the Court of Criminal Appeal ordered a re-trial that a re-trial was going to take place at some time although I accept that at that stage you did not know when it was likely

loyeen 2.8.94 3

to be, but you knew, what, by March of this year that the trial would be

fixed for 8 August?

J\1R LLOYD: Yes, sir.

HIS HONOUR:  What steps did you take to have the application for

special leave brought on? I ask you that because there was a video-link
hearing I think in August 1993, admittedly quite close to the date on
which you filed your application for special leave to appeal. But was

any attempt made to have the application brought on at that stage?

J\1R LLOYD:  Not on my part, sir. I wasn't aware that there was such

a date - such a video-link set. I kept in contact with Mr Millar, sir, of
the registry all during this period. I have spoken to him at least once
every month and we've engaged in quite a bit of correspondence and I
would have thought, sir, that the listing of matters for an August hearing
would have in fact been set at the - of the people on the list would have

been set in July.

HIS HONOUR:  No; that is no doubt true. My question really was

aimed at knowing whether you were aware of the fact that there was to

be a video-link hearing and if you were, whether you took any steps?

J\1R LLOYD:	Sir, I wasn't aware of it.
HIS HONOUR:	Were you aware of the video-link hearing that took

place in April of this year?

J\1R LLOYD:	Yes, sir, I was.
HIS HONOUR:	That is, aware before it took place?
J\1R LLOYD:	Yes, sir. I was aware that in fact there was to be listed"
- there was in fact one scheduled for November which in fact was

cancelled for some reason. Sir, I let the High Court know - the registry
know in Canberra that very soon after the trial date was set that in fact
the trial date had been set, and I pointed out that I would like to have it

listed before then for obvious reasons.

HIS HONOUR: Yes.

J\1R LLOYD: My understanding is that only 10 matters get listed in a video-link and that there were a number of other matters that were also left off that list. I think it's possible, sir, that one factor that

complicated the matter was that the High Court asked - the registry

asked me whether I would like to be dealt with under the new

loyeen 2.8.94 4

arrangements for unrepresented special leave applicants. And in the
process of responding to that and coming to the conclusion that I would
prefer to be dealt with under the old arrangements, I think the list was
made up without me being in a sense, a live applicant as it were.

And one of the reasons, sir, I ultimately took the decision to be dealt with under the new arrangements was in fact advice from the registry that it was not at all likely that under the new arrangements that I would

have the matter dealt with before the trial. There was particular
advantage in that respect but in fact there was an anticipation as I
understood it from the registry that there would be a hearing in June to

deal with these matters but that was not to be.

HIS HONOUR:  Do you mean a video-link hearing?

1v1R LLOYD: A video-link, yes, sir.

HIS HONOUR: Yes, thank you.

1v1R LLOYD: Sir, the court's jurisdiction to stay the proceedings in the lower court pending a special leave application has been well established and asserted by the court on a number of occasions and, of course, sir,

as you are well aware Burgundy Royale case and a number of others
subsequently. Sir, in Burgundy Royale as your Honour will be aware,
the Brennan J, said that the jurisdiction arose where the application
would be futile unless a stay were granted. And he set out a number of
considerations particularly whether there was a substantial prospect of
special leave being granted, whether the applicant had sought a stay
from the court where the matter was pending and whether the stay
would cause a loss to the respondent and where the balance of
convenience lay. Sir, that was of course a civil case and the
considerations are probably a little different in the case of criminal

jurisdiction.

HIS HONOUR:  Well, I think they are. In a case like Burgundy

Royale and some of the other civil cases where stays have been granted,

it has usually been because it has been a stay of a judgement obtained below and where there is a fear that the subject matter of the litigation will simply disappear if a stay is not granted. A somewhat different

approach has been taken by the court in criminal cases, largely I think because of the court's reluctance to interfere with the criminal process below until it has been completed.

:MR LLOYD:  Yes, sir. I would like now to deal with that. It does

seem to me, sir, that the court or the individual judges that make up the

court in these applications have been prepared to stay the proceedings

loyeen 2.8.94 5

not where the effect is to in fact grant bail, which is I think a special
case, and not where there is an appeal against a committal or
proceedings of a committal nature. But, sir, in of course the Marrain
case a stay was granted because it was clear that a special leave
application would be futile. Of course, the special leave application or
the anticipated appeal in that case was in relation to an extradition order
which would obviously be incapable of being reversed if allowed to
proceed.

Sir, of course, in Grassby special leave was granted and I think that was a little unusual in that it did apply to a committal but demonstrates that the issue was - the issue of committal is not absolutely conclusive. Sir, it does seem as though that the matter in Grassby and I must admit I haven't been able to follow this through absolutely but it does seem that the actual decision being appealed against was the decision of the Queensland Court of Appeal where the basis of the appeal was in fact

the unwillingness of a member of the court to disqualify himself. So the

question then became - the question was whether the New South Wales against the committal proceeding.

But the actual processes of the court were being attacked and perhaps that's the reason it puts it in a different category. Sir, the recent cases of Fuller and Cummings and Parker make it clear that the court is not prepared to contemplate a stay in relation to an appeal against the committal or some decision as part of the committal proceedings. But, sir, I think is something of a special case because in Parker the court made it clear that it is not prepared to contemplate the special leave application itself or the appeal itself, not just simply the stay and that

puts it in a separate category. Sir, I would submit that the - - -

[10.33am]

IDS HONOUR:	It does not necessarily put it in a separate category
even assuming that what you say is correct. · Is not that perhaps the real

problem that faces you here? That you are seeking special leave to
appeal in respect of a decision made by the Court of Criminal Appeal on
a matter which this court remitted to the Court of Criminal Appeal for
its consideration. It seems to me that in an application like this, given
all the circumstances, you really need to demonstrate that the prospects

of obtaining a grant of special leave are reasonably good.

:MR LLOYD:  Yes, sir. I think that question of the merits of the

special leave application itself is perhaps critical and of course that was
the only basis on which Jackson J rested his decision not to grant the

adjournment or stay. But the point, sir, I would make is that although

loyeen 2.8 .94 6

there have been statements by the court that it will not intervene or grant
stays or rarely so in relation to interlocutory matters, I would submit,
sir, that in fact this is not an interlocutory matter. This is a judgment of
the Court of Criminal Appeal and an order that is made which in the
same way is in the cases such as Burgandy Royale where there is an
order which is wanted to be appealed against and a special leave
application lodged and a stay sought to avoid such special leave
application becoming futile.

Perhaps if I could now move on to that issue of futility: sir, I think - I have difficulty imagining that the High Court would entertain a special leave application if the trial has already been held where the object of that application is, in fact, to overturn the order for the new trial when the new trial has been held. Sir, even if the High Court would

contemplate such an application it is difficult to see quite what the orders

that it might make. Obviously, sir, if the trial has been held and a not

guilty verdict has been entered, there are really no orders perhaps to
make.

On the other hand, that process has served to make the application futile and, sir, I have suffered the expense and the stress and so on of the new

trial where perhaps I should not have done. On the· other hand, if a

guilty verdict is entered, it is difficult to see quite what the jurisdiction of the High Court is to overturn that guilty verdict on the basis that the trial should not perhaps have been held. In any case, sir, if my appeal were to succeed, it would require a new assessment of the factors going

towards a new trial or not as the case may be and it is difficult to see that that could be taken in isolation from the fact that a new trial has been held.

Sir, if I now could turn to the prospects of the application being granted? I would like to emphasise that this is not a case where I am seeking the High Court to substitute its own view about - a view on the facts about the exercise of the discretion for that of the CCA. Rather,

my submission is that the CCA has made a number of errors of law in	reaching that conclusion. Sir, I have broken them up somewhat
differently for these purposes than in the application book itself and the supporting affidavit; but my submission, sir, is that the CCA took matters into account which it should not have taken into account as a matter of law.
It failed to take matters into account for reasons which are wrong law and it adopted approaches which are wrong in law in the way that it exercised its discretion and those matters are clear from the judgment of the CCA itself. The matters, sir, that I say that the CCA took into account when they should not have were that the High Court ordered the
loyeen 2.8.94 7

accused be retried and that the substantial purpose of the reference by the High Court was to provide an opportunity for consideration of the impact of publicity where, as I say, the true purpose was that the

discretion should be exercised on the whole of the relevant factors. Sir,

the approach of the CCA and the taking into account those factors can

be seen in page 12 of the CCAs judgment.

ms HONOUR:	Yes, I have that.
1vfR LLOYD:	Yes, sir, the middle paragraph at about line 29:

Furthermore, we must have in mind that the High Court has remanded Edwards for retrial and the case against Lloyd on the . . . . . . . . . . of the impact of publicity on the case of the applicant to which we will shortly turn.

Sir, these are related submissions, of course. The problem I have with the CCA taking that view is that the matter when Edwards' appeal was heard - the matter of whether there should be a retrial or not was simply

not argued and there is not comment in the judgment itself and I am sure
the Crown will accept that that is the case.

Of course, sir, I was not present and it seems to me particularly hard that I should be bound by a decision of a tribunal, even of the highest, where I wasn't present to argue my particular case.

ms HONOUR:  I am sorry, when you say you were not present, what

are you referring to, Mr Lloyd?

1vfR LLOYD:  This is the decision of the High Court in Edwards.

ms HONOUR: In Edwards itself.

1vfR LLOYD:  Yes.

ms HONOUR:  But you were content, were you not, for a decision as

to whether or not there should be a retrial to go back to the Court of

Criminal Appeal in respect of your own application?

1vfR LLOYD:  Yes, sir. Yes, sir, I was. I consented to that. But, sir,

I didn't understand the High Court to be making any judgment as to -
when it <lid so, any judgment about the relevance of the decision in
Edwards when it did so. In fact, sir, if I could turn to page 38 of the
application book, there is the transcript of the hearing where the appeal -
the special leave application and the appeal was granted and there was

the reference back. Sir, at that stage at page 38 there is a reference in

loyeen 2.8.94 8

the first paragraph on the factors that should be taken into account and
at about line 23:

The grounds I suggest are the seriousness of the alleged offence, the length complexity and expense of a retrial and I might say, your Honours, et cetera -

and, sir, the rest of that page and halfway through the next are perhaps

at too much length explaining - attempting to - - -

HIS HONOUR:	I have read that material, Mr Lloyd.
:MR LLOYD:	Yes, sir. I think also on page 40, Mr McKechnie for
in any case makes the proposal to the court that a notional Court of Criminal Appeal sitting the day after the decision in Edwards presumably would have followed the High Court decision and ordered a retrial and he was making the case that the High Court could therefore substitute what that notional Court of Criminal Appeal would have done.	the DPP - in fact, the DPP - I'm not so sure about that, sir, at the time - referring it back to the Court of Criminal Appeal.
HIS HONOUR: That may be reading too much into it. On my reading of the transcript - and I was a member of the court that was dealing with your application - what Brennan J was saying in effect was: well, once
the quashing of the conviction took place, as was inevitable in the light of the decision in Chiu v Edmonds and as was conceded by the Crown, the High Court would hardly regard the question of whether - of
consequential orders as itself a matter for the grant of special leave and therefore it was better that that question be remitted to the Court of Criminal Appeal for its consideration, especially as there are a number of matters that you wanted to raise to distinguish your situation from that of Mr Edwards.
:MR LLOYD:  Yes, sir. I have no difficulty with the High Court - in
fact, as you are aware, I consented to that order. The difficulty I have,
sir, is that the Court of Criminal Appeal has taken that reference back to, and in the light of the Edwards decision, which was not argued and which I was not present, and that had picked up somehow that the only issue to really be considered is the one of publicity and that it has in fact
tainted or infected their whole decision.
HIS HONOUR:  Yes. The difficulty with that proposition is whether
or not the Court of Criminal Appeal correctly interpreted the reason for the remission, or the remittance to that court. The judgment of the Court of Criminal Appeal itself contains a quite comprehensive
loyeen 2.8.94  9

consideration of all sorts of factors that would bear upon an order for re-

trial or otherwise.

iv1R LLOYD:  Yes. I accept that, your Honour, but I would suggest

that it has probably - it may well have been the basis for misleading the those other factors and I will deal with that later. But it seems to me, sir, that they have taken a very different approach in terms of this balancing question than the authorities would suggest. And may be one of the underlying reasons for that is their misinterpretation of the reference back.

HIS HONOUR: Yes, thank you.

iv1R LLOYD:  Sir, the matters which the court, I say, failed to take

into account for reasons which are wrong in law are four.

HIS HONOUR:  Are you referring now to your written submission.

iv1R LLOYD: Yes, sir.

HIS HONOUR:	Let me just pick that up.
iv1R LLOYD:	At the bottom of page six and top of page seven, sir.
HIS HONOUR:	Yes, I have that.

[10.48am]

iv1R LLOYD:  The first is the stated intention of the prosecution to

amend the indictment; to, in effect, deprive myself of a defence which
would otherwise be open and was open at the original trial and the Court

of Criminal Appeal said that they would not take that into account

because it was a matter for the judge at retrial. Sir, in my

supplementary affidavit filed last week, I swore that the amendment, in
fact, has been made and the trial is to be conducted on the new basis.
Of course, the Crown most properly was advising me and the Court of
Criminal Appeal prior to that hearing of their intention in that respect.

It does raise, sir, an issue which in fact is a very strong line of authorities through many, if not all, of the cases: that the discretion to order a new trial should not be granted to give an opportunity for the crown to bolster their case or repair it in some way. Sir, I think that there is a - despite all those statements in the cases, it is a little difficult to determine exactly what the meaning and effect of them are. One sometimes gets the impression reading the cases that it is a motherhood

loyeen 2.8.94 10

statement that is repeated again and again but it must have some

substantial content.

Sir, it could mean that it is simply a restatement of the principle that, if
the evidence at the trial was such, having made the allowance for the
successful appeal point, is such that no reasonable jury properly directed
could convict. It may be simply a restatement that there ought to be an
acquittal entered. Then that simply may - it may be simply a

restatement of that in that, as in some of the cases, evidence on a crucial

point proving an element of the offence is wrongly admitted. If it had

of been struck out, the rest of the evidence is not sufficient to justify the
conviction and notwithstanding that the Crown may be able to produce
other evidence to prove this point, they should not be given the

opportunity at a retrial to do so.

HIS HONOUR:  That is not really the situation here, is it?

:rv1R LLOYD: No, sir.

HIS HONOUR:  The conviction was quashed because of the trial

judge's direction on a particular aspect. As I understand it, the Court of Criminal Appeal has said is: well, there is evidence which the jury is entitled to accept which would go to make up that element. So it is not bolstering the case in the sense that some of the other authorities are concerned with. It is really a question of, as the Court of Criminal Appeal put it, saying: well, is there any evidence at all which will make . up this element which the High Court has said is a necessary element and the Court of Criminal Appeal has said: well, there is evidence which a jury could accept to meet that requirement.

indictment has now been amended allege an element which the High

:rv1R LLOYD:  Yes, sir, I agree that this case is different to the

principle that I have just stated and it is not applicable; but I would

disagree, sir, that this is simply an_ evidence of an essential element.

Sir, what the amendment does, now that the focus following those High·

Court decisions is on the question of intent, it allows the prosecution to make the case that the accused had an intent which wasn't alleged in the original indictment and in the - - -

HIS HONOUR:  It is not so much that it allows the prosecution, it

requires the prosecution, does it not?

:rv1R LLOYD:  Sir, it will - the way the amendment is proposed and

now in place is that there be an alternative that the prosecution can prove either the intent that the principle accused intended to cause

loyeen 2.8.94

detriment to the company of which he was a director, Western capable, if proved, of constituting an offence under the section.

Collieries, and/or that he intended to cause a benefit to Rothwells.

It is fairly obvious, sir, that the introduction of a second limb will cut off a line of defence which is available and which was available at the original trial, if it had been conducted on the basis of intent rather than

causation and now is not available.

IDS HONOUR:	Yes, I understand your submission.
iv1R LLOYD:	Yes, sir. Sir, an alternative meaning of this principle of

not bolstering the case might just simply be that it is a factor that has to
be balanced and - that is a possible interpretation - or it could be an
independent principle and that is the case that I would obviously argue,
sir: that it does not seem to me that one can conclusively draw out of
the authorities which of those three alternatives as to the real meaning of
these statements that a retrial won't be granted so as to allow the Crown
to bolster their case. ·

Sir, the other factors or other matters which I say that the CCA should have taken into account but did not can be conveniently grouped

together. They were that my expense and diversion of time at the trial

and the appeals and so on were either to be disregarded or discounted on

the basis that the inevitable consequence of the exercise of my rights of

appeal. That is at page 15 of the CCAs judgment.

Similarly at page 15: my imprisonment and prohibition under section
229 of the Corporations Law is to be disregarded or discounted because

it will be taken into account in sentencing or subsequent application.

And at page 20 of the reasons of the CCA: that the prejudice to a fair

trial due to the lapse of time should be discounted or disregarded

because the lapse of time arose solely out of the appellant process and

by implication not the fault in any way of the Crown.

Sir, if I can group those, if I can make some comments about those
three proposed grounds of appeal together and most of the authorities
establish that these are factors to be taken into account. I haven't been
able to find any authority that any of these factors should be discounted
or disregarded for the reasons that the CCA gives. It is not possible,
perhaps, to know the individual cases, the facts lying behind the cases
that make up the authority, but I think one can fairly assume that in
most cases the detriment would have arisen only from the appellant
process or could be taken into account in sentencing, which is the reason

the CCA gave for discounting them.

loyeen 2.8.94 12

And so, sir, the effect of the CCAs decision to discount or disregard those factors for those reasons is that for all practical purposes it means that those factors, in almost every case, will no longer count in the decision. And if this approach is good law, it is in conflict with the previous authorities and in fact the authorities that are adopted by the other states and I would submit, sir, would open up a gap between this state and other states or would have to be disregarded subsequently in this state not followed.

Sir, there were two general further factors where I say that the CCA has

made an error and they are a question of approach. Sir, if I could deal

with 18 .2 in my submission first and that is the question of the weight of

evidence:  sir, the authorities - if I can just skim over this - really are

saying that there are three categories when an accused person succeeds

on a point of law in an appeal tribunal. The first category is where,

while the appeal point is successful, it is inevitable that the accused
would have been convicted anyway and, of course, there is the effect of
the proviso for - there has to be a miscarriage of justice to have the
conviction overturned and in fact we would never get to the discretion to
either order a retrial or enter an acquittal.

Then, sir, there is the case where, if the trial had of been conducted according to the law, the error had not been made or the evidence had not been admitted when it was wrongly admitted or if the correct direction had of been given to the jury, then the accused must have been acquitted. That is, no reasonable jury properly instructed could convict. The case of Reid is an example of that, sir but there are other cases as well. And that seems to be an invariable decision of the courts, to whether they are exercising their discretion or it is some other principle.

Perhaps the principle that the Crown should not be able to bolster its case, for instance, at work it seems fairly clear that if the accused would have been acquitted for certain or should have been acquitted as a matter of law rather, if the trial had of been conducted according to the law

then they must be acquitted; notwithstapding that the Crown may be able

to bring other evidence or to prove the particular point. And, sir,
finally there is that area where there - and this is a case where it applies,
where it is by no means certain one way or another what a jury would
find if the jury had been properly instructed as to the law. And that, of
course, is the decision of the High Court in Edwards, that there was a

reasonable chance of acquittal fairly open.

[11.03am]

It is clear from the reasons of the Court of Criminal Appeal, and if I could take you, sir, to page 9, at the top of the page. Sir, what I'm

loyeen 2.8.94

suggesting and say that it is clear from the reasons of the Court of from the point of view of determining whether it is a situation where I inevitably must be acquitted or must, as a matter of law, be acquitted on the basi~ of the evidence, not looking at the weakness or strengths of the prosecution and, in fact, the probability or likelihood of being convicted. Sir, at the top of page 9:

In our view it is not necessary to canvass here the effect of the

evidence of Prokopiec in any further detail. Even if it is capable

of being properly understood to support the hypothesis that the

agreement was to pay Rothwells, that does not demonstrate
relevant wea/,.,71,ess in the Crown case. All it does is show that

there are issues to go to the jury.

And further, at the end of that paragraph, sir:

It seems to us that these factors are a complete answer to the claim that there is not a Crown case of sufficient strength on these points.

And again, at the bottom of that page, sir, the last couple of sentences at line 45:

The subsequent evidence cannot be conclusive of the issues raised

by the evidence of other witnesses. It is evidence to be

considered on the point as it may fall out of trial. It cannot be conclusive because it remains the case that there is evidence of Edwards and Gordon that the use of Western Collieries Limited was raised in a telephone call to which the applicant was a party

and chose to remain silent.

And again, sir, on page 10 at about line 8:

In the end, the effect of any testimony to different effect by Fisher

is a question for the jury of a new trial, just as any variation - et cetera. And finally, sir, half way down that page:

Again these matters were part of evidence which previously went to the jury and upon which a verdict leading to conviction was returned so that they provide no support for a contention of weakness in the Crown case.

Sir, what they are attempting to assess, my argument in these matters, is not the probability or likelihood of conviction but whether there is

loyeen 2.8.94

enough evidence to go to the jury. And again on page 12, sir, when the issue of intent now becomes the central factor of the case, my argument to the CCA was that it is a much more difficult case for the Crown to

argue and that the case has been weakened considerably, not
irretrievably, but considerably. But the CCA says, "The issue is one
essentially for a jury", at line 25, "and thus for a determination upon
retrial".

And what I say, sir, is that that is an issue; they have misconceived the authorities and the law in relation to that because the authorities are clear that the likelihood of conviction is an issue that they have to consider and weigh when they exercise the discretion. Sir, the final appeal point is perhaps one of the most significant. That is, that the CCA has considered each of the factors which go towards their being a new trial or not and of course I have complained about the way they

have treated those. But they have considered each of the facto_rs_ alone,

where I say that the authority is that they are to be cumulatively

balanced. And just as two examples; I won't read them, sir, but at page

14 it relates to seriousness.

They make that very clear that they consider whether this particular factor is sufficient to order an acquittal rather than order a retrial. And again at page 22, when we look at the conclusion, there is no statement there, sir, which may well have saved the CCAs judgment on this point to the effect that they have considered all these factors and taken them

all into account and they've decided on that basis that there ought to be

a retrial. If they had have said that this appeal point wouldn't be valid.
they haven't said it, sir, and right through the judgment they have
chosen to consider each item as whether it alone is sufficient to justify
not ordering a retrial.

Sir, the law about balancing seems to be very well established. The authorities of Reid which of course is a Privy Council authority and, of course, Rabey which is a West Australian Supreme Court authority and

others as well. Sir, but there is some question about the authority of

Fowler which, of course, is a decision of the High Court itself. And it

seems to me, sir, that the - well, I'm not sure that I should say that the contend that it is not. But, sir, the Court of Criminal Appeal certainly refers to and cites Fowler and quotes Fowler at some length.

It must be taken, sir, to interpret Fowler as the basis for this approach of considering factors singly rather than accumulative balancing. I can only assume, sir, that there is, in Fowler - and I don't have the full

judgment with me, but at page 177 of the - I'm afraid, the ALR report,

it said:

loyeen 2.8.94

Then the court must take into account any circurnstances which might render it unjust to the accused to make them stand trial again; remembering, however, that the public interest and the

proper administration of justice may be considered as well as the

interests of the individual accused.

And then the judgment goes on to refer to the particular circumstances of that case. And then it says:

These were matters which should have been weighed by the
Supreme Court in deciding how its discretion should be exercised.

And, sir, I can only assume that that particular passage has been taken by WA Court of Criminal Appeal to be the basis for their quite radical change in the way these factors should be weighed and accumulated.

That seems to me, sir, a reason why the special leave application itself has substantial prospects of success because, in fact, the Court of Criminal Appeal is taking a High Court decision as authority for a quite radical change in approach in a way which I don't think it's capable or intended, at least, of being - I can't really say it's not capable of being interpreted in that way because there are three eminent judges of the Court of Criminal Appeal who have decided, I think, that it has.

But it seems to me, sir, that it was not intended by the High Court to institute a radical change. Sir, I have listed the factors which go towards - and the issue that I've just referred to is one of them, that go towards the High Court being likely to give special leave as opposed to

the questions of the merits of the appeal itself. They are on pages 8 and

9 of my submission and I won't go through them, sir. I have also
referred to the fact that I have made application to the District Court
there earlier in my submission. And, of course, I made an application
for a stay to the Court of Criminal Appeal prior to approaching this

court.

I can only assume that the Chief Justice's decision not to list the matter

is on the basis that he believes that the court lacks jurisdiction and while

the Crown has argued in the District Court that that's not the case, I

think that may well be the case.

HIS HONOUR:	When did you make application to the Court of
Criminal Appeal?
J\1R LLOYD:	Sir, I think some 3 days or so after the decision of the

District Court, Jackson J.

HIS HONOUR:	That is the decision of 9 June, you mean?
loye~n 2.8.94	16

11R LLOYD:	Yes, sir. I should be able to find it in my papers, I
think.
HIS HONOUR:	And you are saying, Mr Lloyd, that that application
has not been listed?
11R LLOYD:	Yes, sir. It is referred to in my affidavit in support of

the application for a stay which was lodged - - -

HIS HONOUR:	You mean your further affidavit?
11R LLOYD:	No, sir, the first affidavit.

HIS HONOUR: The original one.

11R LLOYD:	At page 3 on point 10, 11 and 12 and I appended the
HIS HONOUR:	Just a moment, I do not know that I have followed
that.	There is an affidavit in support - I beg your pardon, it is the

affidavit in support of the application for a stay, is it?

11R LLOYD: Yes, sir.

HIS HONOUR: Yes. Yes, I see now.

11R LLOYD:  It is simply to say, sir, that I have made all the

applications that Burgundy Royale requires me to make before applying

to this court. Sir, I've made reference to the fact that I have been

diligent in my pursuit of my application for special leave. I'm not sure

that I can go further than the matters that we have already addressed
except to say that Jackson J, when he considered the application for an
adjournment said at page 41 of that transcript which is exhibited to the

supporting affidavit:

I do not make any criticism of Mr Lloyd on the basis of lack of

expedition.

And he was, of course, referring to the pursuit of my special leave

application. Sir, I have set out the potential for prejudice of a loss to

the respondent which I say, sir, is not particularly significant; although I'm sure they will have a different view on the matter. Finan y, sir, on the question of balance of convenience it seems to me, sir, that in a

criminal matter where someone is facing a trial, the balance of
convenience must be weighted heavily towards the applicant seeking a

stay when the effect of not having the stay is to deprive, in effect, the

loyeen 2.8.94 17

applicant of his rights under the constitution and the judiciary act to
pursue appeals.

I am well aware, sir, of the technical issues in relation to special leave applications and matters not really being on foot but the practical effect, sir, of not granting a stay is that the rights of appeal are, in fact, defeated. I might make some mention sir, I have said in my submission that if I were to pursue my special leave application and it is dealt with in October, which is likely, and if it is unsuccessful then it could be fairly confidently predicted that the matter can be heard, retrial can be heard in the first half of next year. The - I note, sir, with the affidavit lodged by the Crown that they are saying that 12 months is a common time for trials, but in fact, sir, where there has been some delay there does seem to be a priority and in fact this trial was in fact scheduled 5 months after from the date on which it was scheduled, on which it was listed from beginning of March to beginning of August.

[11.19am]

Sir, the other co-accused, Edwards, supports this - did support this application before Jackson J and I have spoken to him and his solicitor and continues to support the application for the very good reason that the Crown has undertaken or advised in any case to them that if I were to be successful and not be tried then they would not pursue the matter of a re-trial against Edwards. Mr Edwards is overseas, sir, and I have spoken to him and he will not be travelling to - he can delay his, he has in fact not left his home overseas and I will be able to tell him the outcome of this application so he will not be inconvenienced if the application is successful. Sir, I have set out my conclusions in my submission and I do not think I - I do not want to pursue them orally with you. Thank you.

HIS HONOUR:  Yes, thank you, Mr Lloyd. Mr Hope?

::MR HOPE:  May it please your Honour. Your Honour, certainly the

High Court does have extraordinary jurisdiction to stay proceedings, but in a case such as this we would emphasise the fact that the matter has already been grossly fragmented and it is a matter of great concern for the Crown that this matter and other matters in respect of which Mr Lloyd has been charged we have not yet been able to achieve a

resolution. Your Honour, may I refer your Honour to Mr Urquhart's

affidavit. That is the affidavit dated 29 July 1994. In that affidavit Mr point at page four and paragraphs 20 and 21 and following he highlights the problems that we now face.

loyeen 2.8.94 18

HIS HONOUR:  I am not sure in what sense you are using the term,

"fragmented", Mr Hope. I mean, it is often used in relation to
proceedings where committal is involved or rulings on evidence are
given and this court has said on many occasions that it will not interfere
where the consequence is to fragment the trial or the proceedings. But
in what sense are you using fragmented here. There is a direction that a

trial - that a new trial take place.

MR HOPE:  That is so, your Honour. I am using it in a sense,

perhaps somewhat analogous to the committal situation, that the situation
in respect to the committal proceedings is that a person has been
committed to stand their trial to a certain date. Where there is an
application in respect of the committal then that causes difficulty in that
the date set for trial and so on cannot be followed through. Similarly in
this case the Court of Criminal Appeal has ordered that a re-trial take
place, the District Court has allocated a date and in that sense if that
date is to be vacated there we have the proceedings continued, broken
up and sped out for a longer period of time again.

And it is a case that has had a lengthy history. At this stage we have not received any notice that there is an application for special leave to the High Court actually listed, so no specific date has been allocated to

August it will take place 3½ years after the original trial and conviction, more than 2 years after the accused man, Edwards, trial was ordered and more than one year after the applicant's re-trial was ordered. And your Honour will see in paragraph 14 that on 25 June 1993 the Court of Criminal Appeal did order a re-trial and remanded the applicant to the	our knowledge. And in paragraph 21, if this re-trial proceeds on 8 almost 6 years after the alleged offences are said to have occurred.
Now, our concern is that this matter is just getting to have been delayed unduly and excessively and if it is not to be listed until 1995, yet another year effectively will have elapsed, it will be almost 7 years since the
offences have occurred and the whole system of criminal justice, to
some extent, will be seen by the public and so on to be not operating as effectively as it perhaps should. We note at paragraph 25 that the applicant is also presently facing two other District Court indictments for
offences alleged to have occurred 6 years ago and each of those
matters have been the subject of repeated adjournment applications. there have in fact been trial dates that have been vacated. And none of those cases have come on either.
So that none of the cases in respect of the applicant has been finalised in this very extensive time period. So that is the context in which we
loyeen 2.8.94 19

paragraph 22, there certainly was available on 22 April 1994 a video- link contact between Wes tern Australia and the High Court sitting in Canberra. Now, that video-link date was 10 months after the Court of	approach this application. Then, in my submission, as noted at satisfactory that the applicant did not have his matter listed on that date. The reasons for it not being listed on his account are detailed in an affidavit which is filed - I do not know if your Honour has a copy - - -
HIS HONOUR:  Is this the affidavit headed, "Further affidavit in
support of application for stay" or, no - it cannot be that one.
1v.1R HOPE:  This is one actually dated 7 June 1994 but that was before
his Honour Jackson J, but perhaps without going to the details of it, essentially the problem as the applicant presented it to Jackson J is that on 24 February 1994 the District Registrar wrote to him and advised
him that the rules had been amended in respect of order 69A. Now, he
claims that by letter of 14 March he wrote to the Deputy Registrar seeking to delay his decision in respect of that matter and advising that he had not received a copy of the amended order and so on.
But at that stage, in our submission, had the applicant taken positive action and immediately attempted to have the matter disposed of the letter from the Deputy Registrar was extremely clear, explaining exactly
what his rights were under the new legislation. He could at that stage
have ensured that his matter did come on on 22 April and it could at that stage have been listed, there is no question that it was available - the date was available and this matter was one of the matters that could have been listed.
Certainly, there was some to-ing and fro-ing between the applicant and the Deputy Registrar and he goes on to say that he did not get a copy of the order and then wrote again and did not make up his mind, I think, - until 18 April at which stage he was then told it was then too late for 22
April. But he had been advised in February 1994 that the date was available to him.
HIS HONOUR: Does that appear in any of the papers that are before me, Mr Hope, you appear to be referring to a document that was used in the proceedings in the District Court.
1v.1R HOPE:  Yes. Your Honour, I am sorry, I was not sure as to
whether some of this material was before your Honour or not. I had assumed that it was.
HIS HONOUR:  Well, there are some exhibits which - - -
loyeen 2.8.94  20

11R HOPE:	Your Honour has - - -
HIS HONOUR:	- - - I have not read in any great detail.
11R HOPE:	Your Honour has got a copy of the judgment in this

matter, is that attached to an affidavit of Mr Lloyd sworn 7 June 1994?

HIS HONOUR:	Attached to which judgment, Mr Hope?
11R HOPE:	I am sorry, no, your Honour, I was just inquiring as to

whether or not the judgment that Mr Lloyd was referring to was the

judgment which was attached to his affidavit because - - -

HIS HONOUR:  Yes, but which judgment are you referring to, the

judgment of which court?

11R HOPE:	The judgment of the Court of Criminal Appeal in this
matter.  HIS HONOUR:	Well, that is certainly exhibited to - well, it is part of

the application for special leave to appeal the application book.

11R HOPE: I see. I am sorry, your Honour, yes. In that case, I am sorry, your Honour, not all of those details are in the application book. Simply in paragraph 22 of Mr Urquhart's affidavit we note that the date of 22 April 1994 was available for special leave applications.

HIS HONOUR:  Well, your proposition is that the application for

special leave to appeal could have been heard on 22 April.

11R HOPE:	Yes, certainly, your Honour.
HIS HONOUR:	And was not heard for what reason, do you suggest.

11R HOPE:  Well, apparently at that stage it appears there was some

to-ing and fro-ing between the applicant and the Deputy Registrar in
respect of the amended order 69A and there is a question of whether or
not Mr Lloyd was going to appear in person pursuant to the old rules or
whether pursuant to the new rules he would deal with his application in
writing. And the decision as to that was not made until well into April
at which stage it was too late for the matter then to proceed on the 22

April date.

HIS HONOUR: Yes, thank you.

loyeen 2.8.94 21

:tv1R HOPE:	But our contention is that Mr Lloyd had from 24 February
1994 to make up his mind.	And even if he did not have a copy of the
obviously versed in these sorts of matters, would have been a simple matter for him either to pursue the matter further with the Deputy Registrar or to simply buy a copy of the order from the Government	order at that stage, as a foreminded treasurer and someone who is establish a substantial prospect that special leave would be granted.
And as to that point it is our contention that first it would be extremely difficult to establish a point of general public importance within section 35A of the Judiciary Act in a case such as this, where what was
essentially being sought was that, because of the particular circumstances personal to Mr Lloyd, the Court of Criminal Appeal should have
exercised a discretion to order that there not be a re-trial. The starting
point, as it were, was that the case was being looked at in relation to the
particular circumstances of Mr Lloyd himself in any event and many of ,
these arguments that Mr Lloyd has raised are not matters of general public importance.

[11.34am]

Then, as to the principles governing the exercise of the discretion as to
whether or not a verdict of acquittal should be directed, or whether a
new trial should be ordered, essentially those principles aren't in
dispute. And the Court of Criminal Appeal, in my submission, correctly
enunciated the principles so that the approach of the court effectively,

although Mr Lloyd does appear to challenge it to some extent, the initial

approach is not challenged.	And at page 4, your Honour - - -
HIS HONOUR:	Page 4 of what?
:tv1R HOPE:	Page 4 of the Court of Criminal Appeal judgment.
HIS HONOUR: Right.
:tv1R HOPE:	Under the subheading, Discretion of The Court, the court
states:

The power of this court exercises a discretion to direct a judgment on the verdict of acquittal to be entered, or to order a new trial arises under - - -

that should in fact be section 689(2) of the Criminal Code.

loyeen 2.8.94 22

The principles governing the exercise of the discretion to order a
new trial are not in dispute, they were last stated in the High

Coun in King v Queen.

And then that is cited, and matters relevant to the exercise of the
discretion are detailed. Then over the page continuing with the
quotation from King's case obviously accepted by the Court of Criminal
Appeal, the judgment reads:

It is well established that the discretion to order a new trial shoula not be exercised when the evidence in the coun below is not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective.

So in my submission, this is the way the Court of Criminal Appeal approached the matter. Then the Court of Criminal Appeal cites the Director of Public Prosecution v Naraiu and Fowler. And there picks up again the quotation insofar as it relates to the need to establish that the evidence at the original trial was sufficiently cogent to justify conviction. And the balancing approach of the court which has to take into account circumstances which might render it unjust to the accused to make him stand trial again. And the public interest and the proper

administration of justice is also referred to. Then at page 6 the factors

to be taken into account are detailed, and again that's not challenged.

So in my submission the first point is that the Court of Criminal
correctly approached their task. So that, in my submission makes it still
harder for the applicant to establish special leave in this case. Your

Honour, I turn to the applicant's points, he suggests that, in paragraph

15 of his submissions, that certain matters were taken into account when

they should not have been. Your Honour, might I make an observation subject of a confidentiality order, and should not have been published.
at this stage, and that is that page 12 of the decision of the Court of

HIS HONOUR:	I am sorry, what was the subject of a confidentiality
order?  MR HOPE:	A number of pages of the judgment of the Court of

Criminal Appeal, from page 7 to page 13, the top of page 13. - I have a copy of the judgment, in fact I have copies of all their authorities, but I

have a copy of the unreported judgment as it was in fact published. And

if I may turn to page 7 of the Court of Criminal Appeal judgment as it
was published, your Honour will see that there was a confidentiality

order. The court ordered that there be no publication of so much of the

loyeen 2.8.94 23

reason of judgment as commences with the words "Applicant and so

on."

HIS HONOUR:  Was that done at the instance of either party, or did

the court do that on its own initiative?

:MR HOPE:  It was done, I think, really at the instance of both parties,

and to some extent at the court's own initiative, in the sense that some of the material referred to from then on as far as the Court of Criminal Appeal was concerned could potentially have raised difficulties if it was published in respect of the forthcoming trial.

HIS HONOUR:	Yes, I can see that.
:MR HOPE:	So that was one matter. The second matter was, and from

the Crown's point of view we raised this point, was that some of the
material referred to, particularly the reference to Mr Fisher's evidence,

referred to confidential private transcripts of the Royal Commission.

HIS HONOUR: Right.

:MR HOPE:  And so as far as the Crown was concerned there was a

concern as to that as well. So there were two concerns.

HIS HONOUR:	Well, that confidentiality order still stands, I take it?
:MR HOPE:	That's so, your Honour. I'm mentioning this point in case
you - - -
HIS HONOUR:	Well, I am glad you did because I was not aware that

such an order had been made, and I assume nobody else in the court

was necessarily aware of that.

:MR HOPE:

No, certainly, your Honour. Now, secondly, your

Honour, Mr Lloyd suggests that the court approached its task

incorrectly, and he does refer to what is in page 12 of the judgment, the·
reference that the High Court had remanded Edwards for trial and a

substantial purpose of remittal - - -

HIS HONOUR:	Is that part of the confidentiality order?
:MR HOPE:	That is contained within the confidentiality order, yes,

your Honour. And the copy I've just handed - - -

HIS HONOUR: Well, there is just a bit of a problem, I suppose. Some of these matters were aired by Mr Lloyd, it is a pity that my

loyeen 2.8.94 24

attention was not directed to that at the time, because they presumably will now find their way into the transcript of today's hearing. Am I to make a further confidentiality order?

:MR HOPE:  Well, with respect, I would ask for some sort of an order

along those lines. I didn't interrupt Mr Lloyd because I wouldn't wish it
to be seen that because of the confidentiality order we wouldn't allow
justice to take its course, so there is a little bit of a difficult situation
there, your Honour. But certainly if your Honour considered there was
some merit in restricting any of Mr Lloyds points, I wouldn't raise this
point as a method of excluding his argument.

HIS HONOUR: No, I understand that. But it is probably enough that there is an order of the Court of Criminal Appeal ordering that there be no publication of so much of the reasons for judgment. Well, how that should be handled by reference to the transcript of today's hearing, I am

not so sure, but the order stands. And insofar as the transcript of . today's hearing refers, that is quotes from the reasons for judgment, then I see no reason why the confidentiality order would not extend to

that.

:MR HOPE:  Yes, thank you, your Honour. Your Honour, the

immediate observation that I'd make in respect of this point is that it is
apparent, as your Honour's already noted, that it's quite clearly apparent
that the discretion exercised by the Court of Criminal Appeal was in fact
exercised on the whole of the matters raised by Mr Lloyd, and they are
all treated separately one by one. And at page 13 the seriousness of the
alleged offence was considered, at page 14 the suggested ordeal of the
applicant, page 15 the question of prejudicial publicity was considered,
and at page 20 the question of whether there was such an extensive time
lapse that a retrial would not be fair was also considered.

So that while the Court of Criminal Appeal did observe that it appeared that a substantial purpose of remittal of the matter was to provide the

opportunity for consideration· of the impact of publicity, that factor did

not apparently cause the court to do other than analyse every point that

of these factors together. So in my submission there couldn't conceivably be a special leave point in respect

he raised. And in fact the court applied the discretion as detailed in the court at page 6, and analysed all

of that matter.

Then the applicant makes a point in respect of the amendment to the
indictment, but the point in respect of that which the Court of Criminal

Appeal noted, was that the application to amend the indictment had not

been made at the time of the Court of Criminal Appeal decision.	At the
loyeen 2.8.94	25

bottom of page 12 of the judgment, your Honour, that is full copy, the Court of Criminal Appeal considered this point and at the last sentence noted that:

Although the court was to be concerned to avoid the Crown .......... whether the effect of an order for a retrial may open the opportunity for an application to be made for an amendment of the indictment.

And clearly, with respect, the Court of Criminal Appeal could only appropriate tribunal for consideration of that point with the trial judge. So, in my submission, again that's a point without merit which could not possibly amount to a special leave point.

consider what was before it. And at that stage all that had happened
was that the Crown had indicated that we did propose to amend the
indictment, no application for amendment had been made. And as the

And without going through them all, Mr Lloyd at paragraph 17 of his submissions states that the Court of Criminal Appeal at page 15, at the top of the page, did not appropriately deal with his claim that he'd lost money for a period of time, and that he'd been in prison briefly, and so on. All of those matters were dealt with perhaps because of the number

of matters raised fairly briefly by the Court of Criminal Appeal. But in

my submission all that the Court of Criminal Appeal is essentially saying
at the top of page 15 is that there was nothing so special about the
applicant's case that his conviction should be quashed and no retrial
should be ordered.

That these points in his case were not so special as to lead to that result. And the Court of Criminal Appeal is not purporting to set out a rule of law that a no case should - the impact of a fine be taken into account, or

anything of that nature. All the court is essentially saying is that there's nothing special about the applicant's case in this context. And the	applicant's submission at paragraph 18.2, that there's been an error in	the approach of the Court of Criminal Appeal, in my submission I've
already adequately with that point, by noting that at page 4 and page 5 the Court of Criminal Appeal correctly enunciated the appropriate tests and then clearly applied those tests.
And as to the strength of the prosecution case, the references briefly at pages 10 and 12 of the judgment to which Mr Lloyd refers are simply brief references to the strength of the Crown case. At the top of page 10, for example, the court stated in the second sentence:
loyeen 2.8.94 26

There is clearly available to the Crown admissible evidence given at the original trial of sufficient cogency to justify a conviction.

Now, in my submission it wasn't necessary to go further than that,
particularly in the context of the tests enumerated at the commencement
of the judgment. And all that the court was highlighting was the fact
that apart from Mr Fisher's evidence there was abundant evidence to
support the Crown case. And indeed, with respect, in my submission,
clearly there was a strong prosecution case and to a large extent it was
unchallenged. And the factual background in this matter appears at page
23 and following of this judgment where the extract of the reasons from
the Chief Justice in Lloyd and The Queen, the other Court of Criminal
Appeal decision, are detailed and set out and his Honour, the Chief
Justice, noted under the heading: The Factual Background:

The factual background was not the subject of any significant dispute at the trial.

[11.49am]

And then at page 25 of this judgment and page 101 of the previous the Chief Justice, highlighted that:

In respect of evidence much of which was obviously unchallenged and not controversial -

Mr Lloyd had purported to act as a director of Western Collieries and to arrange for W estem Collieries to provide $6 million to the benefit of Rothwells at a time when Rothwells desperately needed those funds.	there was, in my submission, clearly a strong prosecution case in that ascertain. So my submission in that regard is that the Court of Criminal Appeal properly approached the test and so there can be no special leave point.
Mr Lloyd further contends, your Honour, that the Court of Criminal
Appeal has not, as it were, added together all of the items and conducted a balancing test but has, rather, separately dealt with each issue. In my submission, that cannot be derived from the judgment. At no stage did the Court of Criminal Appeal state that the court was considering all of these factors exclusively. And it's apparent from the way that Fowler's case is cited at the commencement of the judgment at page 4 that what the court saw itself as doing was involving itself in, to some extent, a balancing exercise.
loyeen 2.8.94 27

And the reference to Fowler's case almost half-way down that reference,

I am sorry, at page 5 of the judgment; the Court of Criminal Appeal

has quoted the High Court's judgment where it reads:

Then the coun: must take into account any circumstances that might render it unjust to the accused to make him stand trial again remembering how that public interest and the proper

administration of justice must be considered as well as the
interests of the individual accused.

Your Honour, all that the Court of Criminal Appeal has done is to go through each of the matters raised by Mr Lloyd one by one. They are not purporting to deal with those separately and exclusively in

considered that factors taken together would have led to a different
result, clearly their judgment would have reflected that consideration.
But they have simply gone through each of the matters raised by

considering each one in isolation. And, in my submission, had the court with such submissions.

So in respect of this point my submission is there's no radical change

taken by the Court of Criminal Appeal in dealing with these factors. A

reading of the judgment of the whole, in my submission, leads to the
conclusion that the Court of Criminal Appeal has simply conducted the
exercise of dealing separately with each factor which Mr Lloyd raised in
front of them. So my submission in respect of that also is that the Court
of Criminal Appeal not only has manifestly appropriately dealt with the
matter but that there's no special leave point in respect of it.

been organised or arranged to come and give evidence next week. A judge and the District Court have been made available for a week. The	In respect of this matter there are two interstate witnesses who have sort of time. There's real inconvenience to be involved if the trial dates
are to be vacated. There is inconvenience to witnesses who've made

arrangements. There's inconvenience to the Crown. There's
inconvenience to the court which would lose a week which it cannot
afford to lose.

And in my submission taking all of these matters into account there is every reason for the court not to order a stay but, more importantly, the applicant has not established a substantial prospect that the special leave to appeal will be granted. And there, in my submission, the stay should not be ordered. Those are my submissions, your Honour.

loyeen 2.8 .94 28

HIS HONOUR:  Yes, thank you, Mr Hope. Mr Lloyd, do you want to

say anything by way of reply?

:MR LLOYD:  Yes, sir, I'll just deal with a small number of points

very quickly. Sir, I must apologise for not drawing your attention to the confidentiality issue. I had not considered the order applied to the filing of appeal papers in dealing with the special leave application. But I

for that. Sir, if I can just deal with some factual matters raised by	obviously should have drawn your attention to the matter and I apologise course, that is not the case.
I have been tried and I was convicted and acquitted on appeal. I was tried in 1990 and acquitted there. So that was one of the cases. The other matters haven't been finalised simply because of the process of fact a Dietrich application which is still pending and awaiting a decision
by the Attorney-General as to whether she will provide the assistance. different I would have got the matter listed in April, that's confidently asserted by Mr Hope but without any basis.
He says that it was offered to me. In fact, it never was offered to me. notwithstanding that there was - - -
HIS HONOUR:  I am not sure what you mean by that. I thought you
told me in the course of your earlier argument that you were aware that the video link was to take place in April.
:MR LLOYD: Yes, sir.
HIS HONOUR:  I do not understand you to be saying that you were
precluded from having your application heard by video link on that day. Is that what you are saying?
:MR LLOYD: Well, sir, I simply - the processes of the Registry are to
make some list of priority. I don't understand how they do it. I always understood that I was on that list of priority and it was a disappointment that I wasn't included.
HIS HONOUR:  But I rather again thought you to say earlier that
because of the change that took place about that time in the rules of the High Court in relation to unrepresented applicants for special leave, you were still considering your position.
loyeen 2.8.94  29

:MR. LLOYD:  Yes, sir. I think that's an explanation of - it may be an

explanation, rather, of why I wasn't listed although that was not my
understanding at the time. I had an option which I thought was available
to me that I hadn't exercised. And I do know, sir, that others that had
been waiting for a special leave application for a similar length of time

were not included on that April hearing.

ms HONOUR:	Did you ask to be included?
:MR. LLOYD:	Yes, sir, I did.
ms HONOUR:	Notwithstanding that you had not apparently then

made a decision as to how you wanted your application treated?

:MR. LLOYD:  Well, sir, I'd been asking to be included on the next one

since September - well, October. In fact, I was hoping that I would be included in the November one. And I understood that I was eligible to be included in the November one which didn't take place, yes, sir. So I

mean Mr Hope says that I was offered it and of course that's not true. I don't quite understand what I could have done to ensure that I was listed in the April hearings or prior to this time.

I considered that I did everything that could be done. And of course
Jackson J, who looked at all the matters that perhaps are not before you,
came to the conclusion that I should not be criticised in that way.

That's my only comment, sir.

ms HONOUR:  Yes, thank you, Mr Lloyd. I think it is desirable that

I reduce my reasons in this matter to writing. I am also conscious of the fact that it is a matter that needs to be disposed of with some urgency. I therefore propose to give my decision at 2.15 and I will make my

reasons then available in writing to the parties. So the court will

adjourn now until 2.15.

AT 12.01 PM THE MATTER WAS ADJOURNED
INDEFINITELY
loyeen 2.8.94	30