Medich v The Queen

[2022] HCATrans 34

[2022] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S53 of 2021

B e t w e e n -

RONALD EDWARD MEDICH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 17 MARCH 2022, AT 11.00 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR B.W. WALKER, SC appears with MS A. FRANCIS and MR M.S. KALYK for the applicant.  (instructed by Bannisters Lawyers)

MR D.T. KELL, SC appears with MS G.E.L. HUXLEY and MR B.A. HATFIELD for the respondent.  (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  The appeal below followed a retrial.  At the first trial the jury were unable to agree.  There may be some significance in that general circumstance to which I will return in relation to ground 3. 

The trial was framed by the Crown from beginning to end, with some variations throughout, as dominated by the concept of a so‑called single joint criminal enterprise.  The word “single” serves the purposes, your Honours will have gathered from the reasons below, of uniting for one so‑called joint criminal enterprise cases concerning two separate substantive offences – separate verdicts, separate convictions to offences, one of murder, one of intimidation – one taking place on 3 September 2009 and one taking place on 8 August 2010.

So, the theory of the Crown case was that there was an understanding, arrangement or agreement that together the parties to that arrangement would commit both those crimes.  There was emphasis given, as your Honours will have seen from the record, in the summing‑up, responsive to the Crown’s framing of the matter as one, not two, joint criminal enterprises.

The case was not framed as a conspiracy.  The case was not framed alleging the liability of our client as an accessory before the fact.  The case in murder was not framed by reference to section 26 of the Crimes Act.  So far as participation, that is, the proof that there was together, by the parties to the so‑called arrangement, acts which made out with the appropriate actus reus, the offence, say, of murder, it was only the payment of money alleged against our client.

There was no evidence from any of what might be called the principles of either of the offences.  There was, rather, information to the jury about a plea of guilty relevantly.  There was, therefore, no evidence from them or even about them having acted in relation to each of the offences pursuant to such an arrangement called a joint criminal enterprise in which the applicant’s money played any part - that is, as your Honours will have seen in the reasons below, there was considerable cause to doubt as adequate what was scarcely a money trail at all traced – if one could even begin to use that word here – with respect to Mr Gattellari of the alleged receipt of funds and, for that matter, the disbursement, use or absorption of them.

GAGELER J:   Mr Walker, can I ask, how does your unreasonable verdict ground differ – if at all – from the unreasonable verdict ground that was pursued before the Court of Criminal Appeal?

MR WALKER:   It points more acutely to the incapacity of the facts as alleged and said to have been proved to make out any participation in a joint criminal enterprise within a form understood by the law encompassing both these offences.

KIEFEL CJ:   Mr Walker, I think it is put against you that the argument regarding the single joint criminal enterprise was not raised in the Court of Criminal Appeal.  The focus there was on the unreliability of Gattellari’s evidence in relation to this ground.

MR WALKER:   Your Honours, it is not correct that the notion of a single joint criminal enterprise was not the subject of argument below, though it is certainly correct that there has been refinement or narrowing of focus in seeking special leave.  The whole point, of course, of pointing out the difficulty for timing of the Crown’s case, namely, the Safetli conversation taking place in February whereas the so‑called single joint criminal enterprise was said to be founded on an agreement that reached no earlier than March or April, those are points that entirely depend upon the characterising by the Crown of there being a single – emphasis, single – joint criminal enterprise encompassing agreed participation, that is, acting together in both of the offences.  

KIEFEL CJ:   Mr Walker, was the way in which the Crown case was put - the prosecution - that the joint criminal enterprise expanded in relation to the second offence?

MR WALKER:   Yes, it was expanded, extended, altered or modified.  The evidence never rose above a relatively vague estimate of how long after the supposed first agreement it was modified to include, not merely the murder, but also the intimidation – it might have been only weeks.  But, certainly, it was said to be in 2009.  

There was, for purposes that we submit inform ground 2 as well, there was by the Crown an intent obviously to present a so‑called single joint criminal enterprise so as to encompass both offences in the proof of participation.  Our point that we submit is ripe for consideration by this Court – this case being an appropriate vehicle for it – is to examine whether there is any such concept of a single joint criminal enterprise but for the context provided by this case. 

One would ask why would one ever the use the word “single”?  A joint criminal enterprise is a joint criminal enterprise.  It is a doctrine by which there can be liabilities of principle for the commission of offence – notwithstanding not committing what might be called the critical or the only acts necessary to constitute its commission.

It is for those reasons, in our submission, that the notion of single joint criminal enterprise here informs the unreasonable ground in a way which is available – bearing in mind the way the matter was argued below – because it focuses on an element of the argument we made concerning the incapacity of the evidence in the case – principally that from Gattellari but seen in the light of that of Kaminic – to prove beyond reasonable doubt our client’s requisite participation.

KIEFEL CJ:   As a question of fact – putting aside the name that is given to agreements of the kind in question – it is the evidence relating to participation which is really the focus of this ground, is it not? 

MR WALKER:   If by that your Honour is referring specifically to the evidence of what I will call the money trail then, yes, that is an important part.  We could not make out our case without addressing those matters.  But that is really enough, of course.  The timing of the alleged conversations – not all of which include our client – and, particularly, the Safetli conversation, to which I will come specifically in ground 3, those are interlinked matters and they make out, we submit – to use old‑fashioned but evocative language – the unsafe and unsatisfactory nature of the verdict – that is, the ground 1 unreasonableness point.

We stress the Crown was intent on emphasising – and received directions accordingly – that it was this so‑called single joint criminal enterprise – the emphasis one, not two – by which it was said the guilt of our client in both offences was to be made out and that his participation – so it was said – not only included the alleged involvement in conversations – I will call it the agreement phase – but, also, as is necessary for any joint criminal enterprise liability, actual participation.  There has to be participation.  There has to be an acting pursuant to the arrangement whereby – at least in one regard – acts are committed which would render our client liable. 

As I stress, it is plainly the money - and that is why the evidence concerning the money and the inability of that evidence to sheet the money home to any willingness or wherewithal for the killing or the intimidation to be committed - that is significant.

Your Honours, I have already noted that this verges into ground 2 – all three grounds that we propose do have links, although they are also sensibly discrete.  Ground 2 – we need to confront at the outset – complains about an inadequacy – as your Honours have seen the matter argued and decided below – of directions concerning, in a nutshell, illegitimate tendency reasoning and there was, of course, a paucity of trial intervention by counsel to secure appropriate directions. 

Your Honours appreciate that, as we did below, so in this Court were we granted special leave, we would submit that the nature of the prejudice arising from the elision of concept involved in the single joint criminal enterprise argument – and in the associated peril of illegitimate tendency reasoning – combine to prevent there being, as it were, any procedural bar to the point being taken.

In our submission, the danger of tendency reasoning in this case, arising from the framing of the matter as a single joint criminal enterprise, so‑called is perhaps best illustrated by seeing the Crown’s last word in retrospect on the matter, which you will see in the application book at page 536, in paragraph 18 of our friend’s written response to our application. 

In…..about the proposition that there was a relevant material risk of the jury engaging in tendency reasoning as between the two counts – murder and intimidation – or, more accurately, from intimidation back to murder – our friends put in their paragraph 18, that:

If the jury were satisfied that the applicant was a party to a single joint criminal enterprise to murder . . . and intimidate . . . and that he participated in either of the offences then they were more likely to be satisfied –

and the language is:

that he was guilty of the other offence. 

Of course, it requires participation.  In our submission, it can be there seen that it is an undeniable character of such reasoning that the tendency – produced, it is said by feeling a need to comply with an agreement which is alleged but not conceded – it is that which provides the circularity and inherent use – intrinsic and central use – of a tendency character of the reasoning.

KIEFEL CJ:   Mr Walker, do you say the tendency can work the other way – that is to say, backwards – that the jury might reason from the nature of the second offence to determine whether the offence of murder was made out?

MR WALKER:   Yes, that is most particularly the vice in this case.  It is, of course, an understood aspect of the illegitimacy of tendency reasoning which is not, of course, confined to this feature that it does involve being satisfied of a subsequent event and using that satisfaction so as to be satisfied of an anterior event, both of them being relevantly charged offences.  There is no question, in our submission, that that is exactly what is intended by the argument advanced in 18. 

It is not organised in some straight‑laced temporal sequence whereby one can only imagine a tendency being spelled out from an earlier event so as to render more likely a later event.  It certainly operates backwards as well, which is to say, draws upon the common or colloquial assumption which is illegitimate in criminal jury reasoning concerning what ought to be more credible about a person and allegations against a person, bearing in mind what is thought to be known about his or her conduct, whether before or after the offence in question.

It is the very demonstration of the virtual abolition of a supposed need to be concerned about tendency reasoning that paragraph 18 of our friend’s written response reflects accurately, with great respect, as to the way in which it was put below and at trial that, in our submission, highlights the…..suitability of, this is a case for special leave in order to examine a matter that we well appreciate this Court has looked at before.  But the recent decision and reasoning in Hamilton does not foreclose any of the arguments that we have proposed in our application were special leave to be granted.

GAGELER J:   Your point here is that a specific anti‑tendency direction should have been given – the directions given were not sufficient.

MR WALKER:   Yes, yes.

GAGELER J:   It comes down to that, does it not?

MR WALKER:   It has to come down to that or there is no utility in it, your Honour, yes.  We submit – and bearing in mind the time I need to do this in an abbreviated fashion.  The reasoning that your Honours have seen – we have referred to of Justice Hamill which starts at his paragraph 886 – it starts on page 284 of the application book, I will not go to it - is reasoning which cogently explains why, notwithstanding there may be a principal argument concerning a relation between the two offences – I will put that to one side for the time being – nonetheless, that is no reason to resist – in fact, if anything, it is an occasion to highlight the need for such caveats to be made explicitly plain to the jury.

I move then to ground 3 which, of course, needs to be considered not only as it links to grounds 1 and 2 but also against this background.  It was in February 2009 the so‑called Safetli conversation, which did not involve our client, the applicant.  It predated the March/June date which, on the Crown case, was the inception of the so‑called single joint criminal enterprise – at least, in it first iteration. 

In our submission, the key words in that conversation, namely, gesturing to a picture of our client, Mr Safetli saying to Mr Gattellari, “This man is causing you a lot of problems, you should kill him”, throws a very dire light on the allegation that sometime later there was a joint criminal enterprise to which our client was party to cause the inception of the enterprise to kill.

KIEFEL CJ:  The question, I think, Mr Walker, on this ground is as the Chief Justice put it – the question of what was the likely impact on the jury?

MR WALKER:   That is absolutely correct, your Honour.  That is why it is seen through a lens of the proviso.  The second point of background relevance to that is this was a retrial.  The only material difference that we can trace between the way the Crown presented its case in the first hearing where the jury could not agree and this retrial where verdicts were reached, the only material difference was this inadmissible evidence through Mr Kaminic in supposed re‑examination to invite speculation by him as to what Safetli meant by the pronoun “you”.  As your Honours know, though it was addressed to Gattellari, that evidence was a speculation that it meant our client.

That, in our submission, highlights the significance about which the Chief Justice has just asked me.  There was, of course, a discharge application eventually concerning this matter.  The Chief Justice and Justice Hamill, on appeal, disagreed – not about whether there was miscarriage, they agreed on that – but whether this was an occasion for the application of the proviso.

GAGELER J:   The miscarriage upon which they agreed, as I understand it, was the admission of inadmissible evidence.

MR WALKER:   Yes, and a submission of inadmissible evidence which had the important effect of contributing – one must assume, or we infer – to the resolution of doubt that must have occurred in order for the verdict to be

reached on the basis, essentially, of Gattellari’s credibility.  Your Honours, I should ‑ ‑ ‑

KIEFEL CJ:   Is there something further you wish to add, Mr Walker?  You may have a little ‑ ‑ ‑

MR WALKER:   If I may very quickly?

KIEFEL CJ:   Yes.

MR WALKER:   In paragraph 901, page 486 of the book, your Honours will see the passage that you have noted we have relied upon in writing, namely, that it was pretty clear at the appeal below, we say – and contrary to the way we understand our friends respond – it was pretty clear that this was a point upon which retrial was the appropriate order.  True, retrial as opposed to acquittal, but the points are obviously retrial points, they are not acquittal points.  But you cannot have retrial at all if the proviso is to be applied and the proviso was, in our submission, therefore something about which, if it was to be applied contrary to us we should have known about it, and we were not informed.

At paragraph 915, page 492 of the book, there are, in our submission, pointed references to what we would call the key credibility issues which render this a case – a powerful case – to resist the application of the proviso for the very reasons that this Court pointed out in Kalbasi 264 CLR 71, paragraph 15. It just could not be said that the convictions were inevitable if Gattellari was doubted – that is obvious. But it is also obvious that Kaminic’s inadmissible re‑examination answer may have helped resolve doubts about Gattellari’s credibility concerning our client supposedly commissioning a murder and intimidation. It is to be remembered, of course, in this regard, that Kaminic was not relevantly challenged by the Crown. May it please the Court.

KIEFEL CJ:   Mr Walker, before you conclude, there is an extension of time required, I think.

MR WALKER:   Yes.  We rely upon the affidavit concerning the extension of time necessary for the filing of the application.

KIEFEL CJ:   Yes, thank you.  Mr Kell, what is the Crown’s attitude to the extension of time?

MR KELL:   That is not opposed, your Honour.

KIEFEL CJ:   Thank you.  We will consider it in relation to the merits.  Yes, Mr Kell.

MR KELL:   Thank you, your Honours.  Your Honours, I will deal with the matter ground by ground, if I may.  Ground 1 – or proposed ground 1 – the issue, the subject of proposed ground 1, which is effectively that the verdicts were unreasonable by reference to the fact that the Crown case involved what was described as a single joint criminal enterprise we say does not reflect a point that was taken at trial or on appeal. 

So, there was no issue raised at trial by the applicant or on appeal to the effect that, for example, the law does not recognise the doctrine of single joint criminal enterprise in respect of multiple offences.  Nor was any issue raised by the applicant at trial or on appeal to the effect that the jury could not be satisfied of the applicant’s guilt because, for example, the doctrine of joint criminal enterprise did not apply in circumstances such as here where the jury were to be satisfied – agreed with Gattellari to commit the offence, or the offences of the murder and the intimidation and that he participated in that agreement by arranging it and providing funds to Gattellari in order for Gattellari to arrange payment for other persons who may be involved in the joint criminal enterprise.  

To similar effect, there was no separate ground of appeal advanced by the applicant below regarding - or alleging that the directions for the jury regarding joint criminal enterprise were erroneous.  In the application book at pages 63 to 64, about halfway down 63, going over to 64, the trial judge gave directions to the jury, including that they had to be satisfied beyond reasonable doubt that the accused participated in the murder.  The joint criminal enterprise is set out at 63 to 64 and then directions follow.

They had to be satisfied that the accused participated in the murder and the trial judge directed – and referred to the Crown case – that participation was constituted by the applicant approaching Gattellari and effectively asking him to recruit people to murder the deceased and that he financed the murder.  That can be seen at 63 to 64 of the application book.  There was no direction or warning sought by the applicant to the effect that such alleged participation on the part of the applicant was insufficient for liability to arise.

KIEFEL CJ:   It was not put, for example, to the trial judge that a person had to be present at the scene for it to be made out?

MR KELL:   No.  Two things – it is not necessary, as a matter of law – and I will come to that in a little bit more detail – and in the example that the trial judge made – sorry, I will come to that in a little more detail shortly, subject to time.  But your Honour is right.  The focus of the unreasonable verdict grounds in the Court of Criminal Appeal, as one can readily see from the judgments, were factual contentions concerning the evidence at trial with particular emphasis upon the evidence of the principal Crown witness, Gattellari, as distinct from any challenge to the foundational framing of criminal liability based on single joint criminal enterprise, as it was described.

KIEFEL CJ:   Mr Kell, in summary on this ground, is it your submission that it is not a question of there being a legal principle about whether there is a single joint criminal enterprise – it is a question of fact in each case.

MR KELL:   Yes, your Honour, that is right.  What is sought now to be raised is a recasting of arguments presented at trial and the Court of Criminal Appeal in respect of unreasonable verdict grounds that were not advanced in that way below which has one consequence which…..for the refusal of grant of special leave which is that this Court would not have the benefit of the considered judgments of the intermediate appellate court on the very matters that are now sought to be raised.

If it is convenient, could I move to ground 2?  Sorry, before moving to ground 2, I did mention that I would refer to participation – I will do it very quickly because my friend referred to it a few times and your Honour just raised it.  We say that the doctrine of joint criminal enterprise applies where there is participation in the joint criminal enterprise.  That is evident from cases such as Huynh v The Queen, which is referred to in our written submissions. 

It is not necessary for the prosecution to establish that the accused participated in the actual commission of the offence.  So, that is the murder - the killing on the day.  That is made clear, for example, by the trial judge’s references at application book 64 to the example of the joint criminal enterprise where they have a getaway driver who waits in the car while the other two participants break and enter and steal from a house. 

It shows that someone can still participate in the offence for joint criminal enterprise purposes and be guilty as a principal, even though he or she does not commit any element of the offence.  In that respect, it is not necessary for the prosecution to establish participation in the actual commission of the offence actus reus.  Here, what the prosecution sought out to establish, relevantly, was that the application participated in the enterprise including by relevantly instigating it and funding it. 

If I can move quickly to ground 2?  We say that this Court’s recent decision in Hamilton – in which the Court rejected an argument that an anti‑tendency direction must be given in every case where multiple counts of sexual offences against several complainants were tried together – provides recent guidance on the matter.  Those are typically cases where the risk of impermissible tendency reasoning, we say, would be regarded as much higher than might be apparent as any risk of impermissible tendency in the applicant’s present case.

We say that Chief Justice Bathurst and Chief Justice Hoeben at Common Law were correct to conclude that there was no or little risk that the jury would engage in impermissible tendency reasoning here.  That can be seen in the Court of Criminal Appeal judgments at 132, 351 and 359.  It is further, as the Chief Justice indicated, recognised that there were obviating directions that were given by the trial judge.  That is at paragraphs 122, 128 and 133 of the judgment below. 

So, for example, the jury was, on at least four occasions, directed to give separate consideration to the counts on the indictment.  That can be seen in the summing‑up – I will not take your Honours to each of them – but application book 40, 62, 61 and 107.  So, multiple occasions on which that direction was given.  We say that there was – this was in the circumstances, sufficient to address any perceived risk of impermissible tendency reasoning.  

KIEFEL CJ:   Mr Kell, in relation to this ground, I understood the applicant to also say that there was insufficiency of direction because it was necessary to explain to the jury how to give separate consideration to the two charges whilst applying a single joint criminal enterprise.

MR KELL:   They were given the separate trials count and the separate consideration directions – to which I have given.  The written directions on joint criminal enterprise, which are referred to in the summing‑up, dealt with each of the offences separately.  We say that there were sufficient directions given, which is also reflected in the fact that there was no challenge at trial regarding the directions that were provided and no application, relevantly, for further directions about those points.

Finally, on ground 2 – and this goes to the point that my friend referred to in the reply – we say, in addition to any – that any risk of impermissible tendency reasoning was significantly diminished by the strength of the mode of reasoning that was logically employed by the Crown case.  That is referred to in our submissions response at paragraph 18.  My friend took you to part of it but not the whole of it. 

Here, the jury was required to be satisfied beyond reasonable doubt that the accused was party to a single joint criminal enterprise – as it was explained in the Crown case and in the summing‑up – and that was to murder the deceased and intimidate the deceased’s widow and that he participated in that enterprise.  This involved needing to be satisfied of guilt on both charges.  But they had to find – they had to be satisfied beyond reasonable doubt of that matter.  This is quite different from finding – we respectfully submit – guilt on one count and then using that conclusion to support tendency reasoning in respect of the other count.

Your Honours, could I quickly deal with the proviso?  We say two things first.  One is that the suggestion portrays in submissions that the inadmissible evidence involving, basically, one answer to a question from Mr Kaminic, that that was the difference in the outcome between a hung jury and the finding of guilt in this case in a long trial and…..no more than a matter of speculation.  That is a matter that your Honours would not give any or significant weight to.  The second point is that my friend ‑ ‑ ‑

KIEFEL CJ:   Mr Kell, but it points up - what that submission, on the applicant’s part, points up is what impact this is likely to have had on a jury. 

MR KELL:   Yes, and we say two things.  One is that your Honours would be persuaded by the approach taken by Chief Justice Bathurst in considering the matters and his Honour’s view that the error…..did not have the impact on the jury’s verdict that was submitted by counsel for the applicant, particularly given the strength of the Crown case and the nature of the error. 

Related to that, is the point that my friend also referred to – reliance on the reasoning of Justice Hamill – but it needs to be remembered, of course, that Justice Hamill was considering the application of the proviso in respect of a number of grounds and, of course, the nature of the error is relevant to application of the proviso and his Honour, differently from the Chief Justice, was doing that in respect of a multitude of grounds, rather than just simply the ground at issue.

GAGELER J:   Mr Kell, Mr Walker placed a great deal of emphasis on the submission that is recorded – I think by Justice Hamill at paragraph 901.  In fact, part of that submission is baked into his proposed ground 3.  How do you deal with that?

MR KELL:   Sorry, your Honour, I will just go to that, if I may?  Yes, we say that – as your Honour recognised, it is central to their ground 3 submission to the effect that there is what is said to be a concession that a retrial would be appropriate by the Crown.  We say that that is not what the Crown said.  When one looks at application book 485 to 486, which your Honour has referred to at paragraph 901, what the Crown said was that:

the appropriate order is clearly a retrial –

if any of grounds were upheld.  So, that is, as distinct from an order for entry of acquittal that there would be a retrial.  That is not dealing with the anterior question of whether – so, it is not dealing with the dealing anterior

question of whether error is established.  It is assuming that error is established and that a ground has been upheld.

In this case, the Court of Criminal Appeal did not uphold any of the grounds.  The occasion for Chief Justice Bathurst to consider the proviso, of course, was that if he found that error was established for ground 4(b) but would have applied – and did apply the proviso and, at application book 108 – sorry, judgment 108, application book 248, his Honour makes his conclusion that: 

the ground of appeal has not been made out.

So that the passage on which reliance is placed at 901 of Justice Hamill’s decision is, in effect, misplaced for present purposes.

GAGELER J:   Thank you.

MR KELL:   Other than the matters that we have in writing, those are the submissions, your Honour.

KIEFEL CJ:   Yes, thank you.  Anything in reply, Mr Walker?

MR WALKER:   Yes, your Honours.  In relation to that last point, we would point out that there cannot be an order for retrial unless the possible application of the proviso has been resolved in the negative.  That is why it is, of course, a matter that the Chief Justice should have, but did not, take into account, particularly in proceeding to apply the proviso in such a way as not to have heard, as it were, from the Crown in support of that application.

In relation to the supposed novelty in our application of the matters informing ground 1, it was almost the point concerning the unreasonable ground as more broadly put in the Court of Criminal Appeal that the vice of a single joint criminal enterprise was that it enabled expressions such as simply “part and parcel of one overall plan”, that the offences were “inextricably linked”, that the one offence “directly connects the intimidation with the murder”, and that “the evidence of the intimidation strengthens the case against the accused on the murder charge”, quotes from the closing address that your Honours will have seen in our paragraph 31 at page 521, all of those stemmed from this fallacious notion of a single joint criminal enterprise. 

Joint criminal enterprise, single or otherwise, is not a substantive offence, of course.  It is a mode of reasoning concerning the manner in which a person, not striking the fatal blow, so to speak, and perhaps not even being present at the occasion, may nonetheless be liable as a principal,

and in our submission, it is for those reasons that there is an appropriate refinement not to be denigrated in the way in which we seek to obtain special leave concerning the resort to this notion of single joint criminal enterprise.

It obviously relates to ground 2 in the manner we have already put, and in our submission, nothing from our friends has explained how a clear form of clear tendency reasoning is not involved in this notion of the connection or link by which, going backwards or forwards in time, intimidation and murder, murder and intimidation, are said to inform each other and make participation more likely by our client. 

Bearing in mind that, of course, the only participation was payment of money, of the inadequacy of material to show how that money had conduced to the carrying out pursuant to the so‑called joint criminal enterprise of the actions of the principals who committed the murder and intimidation, it is all the more, in our submission, compelling as a point for special leave.  May it please your Honours.

KIEFEL CJ:   Yes, thank you, Mr Walker.  The Court will adjourn to consider the course that it will take.

AT 11.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.49 AM:

KIEFEL CJ:   There will be a grant of an extension of time within which to bring the application for special leave.  In relation to grounds 1 and 2, we have no reason to doubt the correctness of the decision of the Court of Criminal Appeal.  So far as concerns ground 3, we are not persuaded that there are sufficient prospects of success to warrant the grant of special leave.  Special leave is refused.

The Court will now adjourn.

AT 11.49 AM THE MATTER WAS CONCLUDED