Medina v The Queen

[1991] HCATrans 70

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S106 of 1990

B e t w e e n -

DAVID FERNANDO MEDINA

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
DEANE J
DAWSON J
GAUDRON J

McHUGH J

Medina 1 12/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 MARCH 1991, AT 10.16 AM

Copyright in the High Court of Australia

MR K.G. HORLER, QC: If the Court pleases, I appear for the applicant, Mr Medina; appearing with me my learned

friend, MR P. BYRNE. (instructed by Craddock

Murray & Neumann)

MR M.S. WEINBERG, QC:  May it please the Court, I appear

together with my learned friend, MR T.L. BUDDIN, on
behalf of the respondent. (instructed by the

Commonwealth Director of Public Prosecutions)

MASON CJ: Yes, Mr Weinberg. Mr Horler.

MR HORLER:  If the Court pleases, we have prepared an

outline of the submissions that the applicant

relies upon.	I hand up the appropriate copies if I
may.

MASON CJ:  Thank you.

MR HORLER: While that is being done, could I inquire if

everyone has an affidavit that was filed by the

respondent with our consent sometime last week; it

being the affidavit of one John William Pritchard,

solicitor, employed in the office of the DPP?

MASON CJ:	I do not, but - - -
MR HORLER:	Yes, we do, Your Honour, that is the purpose of

making that inquiry.

MASON CJ:	I think we are only one short.
MR HORLER:	Then I remedy that, Your Honour.

MASON CJ: Thank you.

MR HORLER: 

Might I deal with a couple of preliminary

matters before I come to speak briefly to our
outline of submissions? There is an error in the

affidavit filed on behalf of the applicant by his

solicitor, Mr Gerard Craddock. That is in the

application book commencing at page 106. Could I

ask the Court please to go to page 107, being

page 2 of that affidavit. At paragraph 6, we set

out two grounds, 6(i) and (ii).  The typographical

error is to be found in 6(ii). It now reads:

the Court erred in imposing sentence upon the

applicant -

and the word from the draft were omitted and I

apologize. The words should then follow after
"applicant" - these words: "without permitting the

applicant", otherwise it makes no sense at all.

So, that ground should read in full:

Medina 2 12/3/91

the Court erred in imposing sentence upon the

applicant -

with the addition of these words "without

permitting the applicant".	And the respondent has
been alerted to this.	May I make that amendment.

The other matter is this:  we are out of time;

we need the Court's leave. If the Court is minded

to give us that leave, I understand Mr Weinberg

does not oppose it.

MASON CJ:  Yes. You can proceed with your argument,

Mr Horler.

MR HORLER:  Thank you. Your Honours, there is not a great

deal that I wish to add to the outline of the

submissions for the applicant. There is some

detail by way of expansion only dealing with them

in the numbered paragraphs and it is necessary for
me to take from the appeal book some items of
chronology. At the risk of repetition it is

already there.

Mr Medina came before the New South Wales

District Court on two occasions. He came first

before the district court on 23 October 1989 -

23/10/89. He adhered to his plea. He had pleaded

guilty throughout. The matter was then adjourned

for a period of just under two months on the
application of his counsel and it came back in the
district court on 14 December 1989 and there is in

the appeal book a transcript of the further

evidence adduced by his counsel and the reasons for

the grant of the Griffiths' remand which is what

Judge Bell did in the district court on 23 October

1989.

Now, the next significant date, and I am

reducing these to a minimum, is that promptly the

Director of Public Prosecutions lodged his appeal.

That was on or about 22 December 1989 and the

matter came on for hearing some five and a half

months later in the Court of Criminal Appeal in New

South Wales, that is on 11 May 1990. The court

reserved its decision and the reserved decision was

handed down on 28 May 1990.

In accordance with the sentencing or

resentencing of the Court of Criminal Appeal,

Mr Medina becomes eligible for release on parole on

or about 27 November of this year. The custodial

sentence imposed by the Court of Criminal Appeal in

New South Wales was a minimum term of 18 months

plus an additional term of six months, making a total of two years - 18 months plus six months.

Medina 3 12/3/91

The reason for the filing by consent of Mr

Pritchard's affidavit, I hope, now will become a

little clearer because many of the matters which

are of concern to the applicant here do not appear

in the transcript, particularly in the transcript

of the proceedings and the reasons for judgment in the Court of Criminal Appeal and it is relevant at this stage to take the Court, if I may, to the

matters set out in Mr Pritchard's affidavit as to

which substantially we do not disagree, just to

matters of interpretation, because what happened

when Mr Byrne appeared before the Court of Criminal

Appeal, that the court having reserved its decision

and made a decision against Mr Medina, he then made

two applications - and this emerges in

Mr Pritchard's affidavit. Firstly, remit the

matter to the original sentencing judge, Judge Bell
in the district court, to which he got a "No''.

"Alternatively, if you are now in the Court of

Criminal Appeal going to sentence my client, I wish

to call evidence", and that was refused and the

court proceeded to sentence Mr Medina in the way in

which I have summarized to the Court.

DEANE J:  Mr Horler, I do not quite follow this.

Mr Pritchard's affidavit reads as if these matters

were dealt with on the original hearing before the

court had expressed a view as to whether the appeal

would succeed or not.

MR HORLER:  Yes, I am corrected in relation to that. I am

told that during the course of argument those

propositions were put by counsel.

DEANE J: While I am interrupting you, I do not quite follow

what underlies Mr Pritchard's affidavit in that was

the subject of contention whether the Court of

Criminal Appeal should entertain any further

material?

MR HORLER: That was one matter in contention, yes,

Your Honour.

DEANE J:  Or was it simply, "If you want to say something

further about sentence, say it now"?

MR HORLER:  In effect, both, Your Honour. I know it is an

easier answer to say both, but during the course of

argument between counsel and the bench, both

propositions were put. The starting point was that

this was a OPP or a Crown appeal against inadequacy

of sentence.

DEANE J:  I follow, but can you see the difference? I mean

it is one thing if the Court of Criminal Appeal

said, "No, this is an appeal against sentence.	You
should be ready to deal with the consequences if

Medina 12/3/91

the appeal succeeds. Make your submissions now,

and if you have further evidence explain to us why

it was not available." It is another thing if the

court said, "No, this is an appeal on sentence.	We
will not hear your submissions as to the

appropriate sentence, and we will not take material

additional to what was before the sentencing

judge."

MR HORLER: Well, Your Honour, my understanding, and it is

confirmed by Mr Byrne who did appear below, that it

certainly was the second and that which is

complained of now and was complained of at the time

unsuccessfully was the refusal of the court to

entertain the application by Mr Medina's counsel
that he call evidence relevant to the sentencing of

his client; he having got the intimation during the course of argument confirmed by the reserved decision that the court regarded the Griffiths'

remand as inappropriate and too lenient. These
would not have been precise words, but the legal

application that Mr Byrne as counsel made, "Well,

Your Honours, I now wish to call evidence relevant

to the resentencing which the court has indicated

it is now about to do."

DEANE J:  Now, that does not appear on my reading of any of

the material before the Court.

MR HORLER:  Your Honour, the best I can do to answer that:

the paragraph which goes nearest, and I accept that

there is a gap, dealing with that matter is

paragraph 17 in Mr Pritchard's affidavit. It is

the wording which creates some difficulty, I

accept:

Alternatively Counsel for the applicant

submitted that if the Court was not prepared

to remit the matter -

that is to send it back to Judge Bell in the

district court -

it -

the Court of Criminal Appeal -

should not proceed to re-sentence ..... until

the applicant -

Medina -

had been afforded the opportunity of

presenting further evidence before it -

the Court of Criminal Appeal -

Medina 12/3/91

and making further submissions on sentence.

I am asked to draw your attention to

paragraph 18 at the same time. Counsel for the

Crown opposed that course:

in either of the ways proposed by Counsel

for -

Mr Medina -

and reaffirmed that the Court itself should

proceed to re-sentence the applicant and on

the basis of the material then before it.

That only makes sense in terms of paragraph 17,

namely that the application that we made was

refused - to call evidence.

GAUDRON J:  I take it, Mr Horler, you did not have your

witnesses there at the Court of Criminal Appeal on

that day.

MR HORLER:  I think that is correct, Your Honour, we did

not.

GAUDRON J:  And there was no suggestion that they were to be

called that day.

MR HORLER:  Nor did the legal representatives of Mr Medina have any warning either way. They knew the matter

was in for judgment, constituted by a court

differently to that which had heard the matter on

11 May. I ought to refine that. When it was

listed for judgment and the judgment was handed down by a court differently from that which had

heard the matter, none of those who had taken any

role - except, perhaps, for Mr Pritchard - were

there and the matters that I am just putting to the

Court - in particular to Mr Justice Deane's
question - were raised during the course of

argument,	Mr Byrnes saying words to the effect,
I will want to call evidence and call my client on	"In the event of my submissions not finding favour,
matters relevant to his resentencing if you do not
accept my submission that it go back to
Judge Bell". So the matter was ventilated before
the court and Mr Medina was not afforded that opportunity.

GAUDRON J: There was no attempt made to foreshadow the

nature of the evidence, was there, by way of

affidavit or otherwise?

MR HORLER:  No, that is correct, Your Honour. But that

would not ordinarily have been - not that I think

Medina 6 12/3/91

anyone would have opposed it, but it would not have

been the ordinary way to have gone about it.

MASON CJ:	Were any members of the court who participated in the hearing actually present in court when judgment
was delivered?

MR HORLER: It was a totally different court, Your Honour,

so the answer is none. That is all that, for

present purposes, I wanted to say about that

affidavit of Mr Pritchard's and why it has some

relevance in these proceedings and I have given the

Court such relevant dates and chronology that might

assist to understand what happened. I do not think

I need to take the Court to authorities for the

trite proposition that payment of

compensation - - -

DAWSON J: Just before you leave that point, Mr Horler.

Submissions have been made during the hearing

before the court which did hear the matter that an

opportunity for it to call evidence should be given

if they were minded to resentence and it is

implicit in what they did that they rejected that

submission but the matter was argued.

MR HORLER:  To call it an argument would - I do not wish to

be semantic about it - Mr Byrne said, amongst other

things, "If you decide that Judge Bell's sentence

was manifestly inadequate in spite of my

submissions and you reject my application to send

it back to Judge Bell who imposed the Griffiths'

remand, if you do both those things then I want the

opportunity to call evidence".

DAWSON J:  And the Crown then opposed that

application ..... and said that there was no need for

that, that all the material was before the court?

MR HORLER:  As I understand it, yes - words to that effect,

yes.

DAWSON J: Yes.
DEANE J:	Did the court say anything then about what it

would do?

MR HORLER:	I understand, no, Your Honour.
McHUGH J:	Has the court got any power to send the matter

back to the judge for resentence?

MR HORLER:  We say, yes.

McHUGH J: Where does that come from?

Medina	12/3/91
MR HORLER:	A case called Ellis and under the Act,

section 12(2). Under the New South Wales Criminal

Appeal Act 1912 - and I think that is on our list -

the supplemental powers of the court,

section 12(2):

The Court of Criminal Appeal may remit a

matter or issue to a court of trial for

determination and may, in doing so, give any

direction subject to which the determination

is to be made.

I do not understand the Crown to have argued that

the power was not there. Their principal

submission was that it was totally inappropriate in

this case but that there is the power and there is,

by way of example only, a case on our list of

Ellis. It is sufficient, I think, to give

Your Honours just the reference to it - Reg v

Ellis, 6 NSWLR 603 and, in particular, the judgment

of the then Chief Justice Sir Laurence Street

at 603 and 604, is an expression of that statutory

power under the subsection.

For completeness, there is the unreported

decision of Kip in New South Wales which has,
again, been referred to on the list of authorities,

so there was the power, Your Honour, and I do not

understand then or now that the OPP is saying that

there was not.

Your Honours, the point of the leave

application is a short one and I think that in

answering the questions put to me by the Bench, I

have dealt with most of the matters which

supplement that which is in the outline of

submissions.	Mr Medina was a person who had been
given a Griffiths' remand in December 1989.	The

sentencing judge, as is clear from his remarks on

sentence, had made it very clear that a man could

not buy his way out of gaol but in the district

court Judge Bell was very conscious of the

relevance of making restitution and reparation.

The amount involved, of which the Commonwealth was

deprived, was in excess of $45,000.

As is seen in Mr Pritchard's affidavit, even

after the lodging promptly by the DPP of its notice

of appeal which happened just before Christmas,

Mr Medina went on paying and he had paid $1500 by

March 1990 and the summary of those payments is to

be found in paragraph 12 of Mr Pritchard's

affidavit.

McHUGH J:  But is not the real question in this case whether

the appeal is by way of rehearing or whether it is

an appeal in the strict sense? If it is an appeal

Medina 12/3/91

in the strict sense then the Court of Criminal

Appeal should make the order which the judge should have made on the materials before him. If it is an

appeal by way of rehearing then the case stands in

a different situation altogether, it certainly

strengthens your position?

MR HORLER:	In relation to the first of those alternatives that Your Honour has just put to me we say, the
Court of Criminal Appeal fell into error because it
did not give Mr Medina an opportunity to be heard in respect of the sentencing - whether or not you put the prefix "re" in front of it - but the
sentencing procedure that the Court of Criminal Appeal carried out proceeded without his being
heard and it is no answer to say, "Yes, his counsel
during the course of argument made submissions" because the evidentiary foundation to build upon for those submissions was not there because
Mr Byrne said more than once, "Well, if you are against me and if you are not going to send it back
to Judge Bell then there is material that I want to
put before you. For example, that which now
appears in Mr Pritchard's present affidavit was not
before the court, namely, he paid $1500 - it was, I am sorry, it was before the court. But there was material that he wanted to put before the court if
the court was going to do that which it
foreshadowed, namely, sentence him itself rather
than send it back.
DAWSON J:	What was the material?

MR	HORLER:	Mr Medina, Mr Medina's partner in the business of cleaning and the imminence of a valuable
cleaning contract which, on instructions, would have permitted him to pay back at a rate faster than that which he had been paying and which had
been made as a condition of the Griffiths' remand,
highly relevant to his being sentenced or resentenced and he was deprived of the opportunity
of putting that material. He was on the verge of
getting a more valuable cleaning contract.

Counsel, as counsel sometimes do, may have

given some of that from the bar table but his

partner was intended or wanted to be called to give

that evidence in proper form. So there was - - -

DAWSON J:  One never knows. I mean, the Court of Appeal may

have said, "Well, we are prepared to accept all

that as being true, it does not affect us in the

exercise of our discretion."

MR HORLER:  But they did not do that, with respect.

Medina 9 12/3/91

DAWSON J:  They were not given an opportunity because they

were not told what the evidence was.

MR HORLER:  Yes, but Mr Medina was, we say, entitled to put

that and he can be shut out from exercising that

normal right on sentencing merely because his

counsel did not put with lapidary precision the

nature of the evidence that might have been called.

DAWSON J:  What is the duty of the Court of Appeal in those

circumstances, to impose the sentence which the court below should have imposed on the material before it or to hear the matter afresh?

MR HORLER:  We do not say that of the options available to

him that they could not have sentenced or

resentenced. We say, however, that Mr Medina was

deprived the opportunity of fully putting his	case
relevant to the sentencing in that he was not

DAWSON J:  To the Court of Appeal, but he had the

opportunity in the court below to say whatever he

wanted to, did he not?

MR HORLER:  Yes, that it true, but it was prospective. I do

not intend to buy my way - - -

DAWSON J:  I just want to know what do you say is the

situation? Is the Court of Appeal to impose, if it

is going to resentence, the sentence which the
court below ought to have imposed on the material
before it, or is it to receive fresh material and

exercise its discretion on fresh material?

MR HORLER:	The latter, Your Honour, the second - - -
DAWSON J:	Any authority for that?

MR HORLER: Well, because of the particular circumstances of

rehabilitation implicit in the nature of a

Griffiths' remand. You see, the purpose - and

Your Honour knows this - but a Griffiths' remand

enables the court to exercise some supervisory role

over the prisoner and if, for example, he had not

honoured any of his undertakings in relation to

payment, that would have been relevant material for

the Court of Criminal Appeal. It would have been

adverse to him. But if he had kept up the
payments, or increased them, or had prospects of

making them at a faster rate - I use this by way of

illustration in accepting and adopting the second

proposition you have put to me.

McHUGH J: But the hypothesis of the Court of Criminal

Appeal's judgment is that a Griffiths' bond should not have been given in the first place.

Medina 10 12/3/91

MR HORLER:	As to that, we say that it was an appropriate sentencing option and that His Honour Judge Bell
very much had in mind what was said in Griffiths,
and in particular what Sir Garfield Barwick said, I
think at page 306, that this is a sentencing option
that is only sparingly used and it should not be
used when at the end of the road there is a real prospect of a gaol sentence because of the unfairness in that. His Honour found that there
were special circumstances which took this case out
of the ordinary where a gaol sentence would have
been the inevitable and proper result for a fraud on the Commonwealth.

McHUGH J: But does that not mean then that your point is

that the Court of Criminal Appeal should not have

interfered at all, which is not the point you seek

to raise?

MR HORLER:  No, because I do not really have to argue that.

Incidentally we say that that was an inappropriate

sentence, but it is the mechanism whereby they got

there and depriving Mr Medina of the opportunity to

be heard, we say, where the proceedings miscarried.

McHUGH J:  I do not know that you can segregate the two

issues. If Judge Bell should not have entertained

the notion of a Griffiths' bond, why should the

Court of Criminal Appeal entertain it?

MR HORLER:  Because there is a continuum during which you

look at the prisoner. That is the special nature of the beast, the Griffiths' remand. It is not a matter just to shut it off and say, "Well, the

court sentences on the material available to it in

December 1989." Given the purpose and the unusual

nature of the Griffiths' remand, in that

circumstance it was appropriate to review his

progress with particular regard to his reparations and his undertakings as it may when the court came

to resentence.

DAWSON J: Why is that? The Court of Criminal Appeal seemed

to take the view, if I read their judgment rightly,
that whatever his ability to repay the offence
called for a custodial sentence. Now, in that

situation what relevance would evidence be that

pointed to his increased ability to pay if his

business went well?

MR HORLER:  Because of the argument and the approach taken

by the sentencing judge on impeccable sentencing

principles that while the decisions in New South

Wales say severe penalties, salutary penalties,

they do not, as Mr Justice Clarke seems to have

assumed, necessarily say a full-time custodial,

sentence; and that His Honour had approached it,

Medina 11 12/3/91

leniently perhaps, but on appropriate principles,

and that to interfere with it in the way in which

it was done and to deny him the opportunity worked

at injustice.

DAWSON J: That is a different argument. You are now saying

that the sentence below was not manifestly

inadequate and the Court of Criminal Appeal was

wrong in taking the view that a custodial sentence

was - - -

MR HORLER:  I am and I am falling into error there because I

do not need to say that.

McHUGH J: Well, I think you may have to say it. I do not

think you can segregate these two questions. I

know it does not help your special leave point but

at least one questions is, in exercising its powers

under section SD, the relevant question is: was

the order made on 14 December 1989 in error? If it

was not, then the Court of Criminal Appeal should

not have interfered. If it was, then it was for

the Court of Criminal Appeal to exercise the

discretion afresh.

MASON CJ: Is not that how Justice Jacobs saw it in

Griffiths' case in that situation?

MR HORLER: Yes. Well, if I accept the segregation

distinction - and I will for present purposes -

then we submit that nothing on the reasons for

judgment of Mr Justice Clarke would justify the

legal conclusion that Judge Bell fell into error.

It might have been lenient but His Honour applied

the appropriate principles and recognized the trite

law that you cannot buy your way out of gaol;

identified, recognized it, came to terms with it.

DAWSON J: 

The manifest error was said to be that he failed

to give any account whatsoever to the element of
deterrence.

MR HORLER: But, the fact that there are not words on the

page does not mean that His Honour, an experienced

judge, did not have that in mind.

DAWSON J:  Now we are just arguing about whether the

sentence was excessive and so on. There is no

special leave point in that, is there?

MR HORLER:	No.
McHUGH J:	It does not mean that your second point has not got some legs because even if the Court of Criminal
Appeal was entitled to interfere and exercise its
own discretion, the question is whether rules of
natural justice give you the right to tender

Medina 12 12/3/91

evidence as at the date they are going to deal with

your client to bring the matter up to date.

DAWSON J: Except, if I may add to that to tell you what you

have got to meet, what you have said was the

evidence you wished to call really only went to the

ability to repay which, on the view of the Court of

Criminal Appeal, was irrelevant.

MASON CJ: Can I ask you this, Mr Horler: what evidence

could have been given before the Court of Criminal

Appeal in addition to the evidence that was given

by Mr Lewis, Medina's partner, before Judge Bell?

MR HORLER:  I shall do my best to answer. Is Your Honour

putting that to me in a theoretical way or

practically what were our instructions?

MASON CJ:  I want to know, is it real to suggest that there

was a need, from your point of view, to add to the

evidence that was before the sentencing judge?

MR HORLER:  Yes. The answer is yes. I will answer it

theoretically first in an example, I hope, which is

not seen to be too extreme. Let us assume that Mr Medina's wife and family were very dependent

upon him and that she had recently been diagnosed

as suffering from cancer, for example. Then that

fact and the interdependence of husband and wife
and young family would have been a relevant factor

and something that must have been taken into

account in the sentencing process. I hasten to add

that was not the situation here but there was

relevant material which might have made no

difference but he was not heard on the point.

DAWSON J:	What was the relevant material?
MR HORLER:	I have given the example. There was evidence

which related to his ability to pay, to pay at a

better rate than that which he had been paid.

Bearing in mind, adopting the analysis in

Griffiths, Judge Bell had foreshadowed that if he

kept by his agreement and paid off that which he

had taken from the Commonwealth he had in mind

imposing a heavy pecuniary penalty at the end of

the road.	So his means and his improved position
was relevant.	I will just confirm whether there
was any other relevant matter.	No, the evidence

would have been confined to his changed financial

circumstances.

MASON CJ:  Now, are you talking about a contract that is

different from the contract of which Mr Lewis gave

evidence, that is the projected contract with

Peppers, or not?

Medina 13 12/3/91

MR HORLER:	The same contract, the developments in the negotiation; yes, the same contract in relation to
Peppers but the terms had changed to his advantage.
But I must accept that the evidence was confined to
his improved financial position.

MASON CJ: But, was nothing said about that to the Court of

Criminal Appeal?

MR HORLER:  No, nothing was said except, "If you are against

me I want to call some evidence.", and remembering always that the court was engaged in other matters

relating to the propriety or not of Judge Bell's

sentencing. So this was on the margin but it was

well and truly and appropriately raised by his

counsel who was shut out from the opportunity of

calling that evidence.

It is a natural justice point and it is not

weakened or diluted by the logical possibility that

it may have made no difference.	He was not given
that opportunity.	I think I have said that more

than once and I do not think - the only other

matter - - -

MASON CJ: Just stopping you there. At page 86 of the

application book, line 23, there is this question

and answer:

So the Medina family you would expect to be

looking at somewhere between $30,000 and

$40,000 a year from the business? A. I think

that is a reasonable approximate at the

moment.

MR HORLER:	Yes, I see that.
MASON CJ:	Now, you are saying that as things fell out it

was significantly better for the applicant than

that?

MR HORLER:  Yes. I was not in at any of the earlier stages

but I have just confirmed with Mr Byrne and our

instructing solicitor that there was material to

show that the position had improved since Mr Lewis

gave his evidence in December 1989. But, in answer

to Your Honour's first question to me, it did

relate to that same contract; but, also, in the

context of the improved net income of the business

quite apart from the prospective Peppers' contract.

And that would have been relevant, not only to his

performance in relation to the terms of the

Griffiths' remand but also the prospective heavy

financial penalty that His Honour had foreshadowed

in September 1990 which is the end of the 10 months

Griffiths' remand.

Medina 14 12/3/91

MASON CJ: In the overall context of the issues that arose,

it does not seem to me that a significantly

increased return from the business would have been

all that material. The fact is, from Lewis'

evidence one can divine that there was a

significant capacity to repay.

MR HORLER:  Yes, and to keep on repaying and at an improved

rate so that the court could have confidence in

that remand and that there was something to flesh

out the promise that he had given the judge or the

undertaking or the term that he paid at so much a

month an increase and not so exhaust his funds that

he would not be able to pay a fairly hefty fine at

the end of the period of the remand because that

was also part of the stick and carrot of the

Griffiths' remand that was there.	And that is why
it was relevant.

DEANE J: But, is not the problem, Mr Horler, that it is

difficult to read the Court of Criminal Appeal's

judgment as saying other than in this case it would

matter not if he could pay the whole amount next

week, there was a need for a custodial sentence.

MR HORLER:	Yes, I accept that.
DEANE J:	When you read it that way, if the only evidence

was as to his ability to repay one can understand

the Court of Appeal saying, "Well, we really need

not be troubled by that".

MR HORLER:  And that is why I am driven back to the less

appealing of the alternatives that

Mr Justice McHugh has put to me, well although the

Court of Criminal Appeal had repeatedly said in New

South Wales, "This is serious, you must accept

salutary penalties.", that is not to be equated

with gaol and that there was still an option

available to his counsel to persuade the court, all

right, if it is no Griffiths' remand and it is to

be gaol, he has paid back so much and promises to

pay back so much, impose only 12 months. I do not

have to get into the absolutism of either/or, had
he been given that opportunity that he was

prevented from availing himself of he may have got

less gaol. So it was not goal or Griffiths'

remand; there are intermediate positions there that

his counsel could have properly argued for, even

given the obstacle that Your Honour has identified,

but he did not get that chance.

DAWSON J: Well, he had before the court the amount he had

repaid up to that time, did he not?

MR HORLER:  I am sorry, Your Honour.

Medina 15 12/3/91

DAWSON J: It was before the court the amount which he had

repaid up to the time that - - -

MR HORLER:  Yes, and to the extent that I might have said that was not the case, I was wrong. I apologize

for that, yes, they were informed of that.

Now, on that Your Honour, there is a case that

we referred you to on our list - - -

DAWSON J:  And you may allow me to just take that a little

bit further, it would be quite inappropriate to

impose a gaol sentence and an obligation to repay

in addition, in fact there would be no way of doing

it.

MR HORLER:  Sometimes in the general theory it seems a

sentencing option that trial judges and magistrates

ought to be able to have but they do not and they

do not - - -

DAWSON J:	They do not?
MR HORLER:	They do not.
DAWSON J:	So that was irrelevant for present purposes.
McHUGH J:	What concerns me and what I am confused about at

the moment is was the argument in the Court of

Criminal Appeal from your client's point of view confined to the question whether the Griffiths'

bond should have been made or did you have an

opportunity to address on the whole situation as at

the date the Court of Criminal Appeal was proposing

to take action?

MR HORLER:  The short answer is both were ventilated. The

first one, and when Mr Byrne could see which way

the wind was blowing, in order to deal with that

possibly, the second, so the short answer is both.

concerning the Court in the last few minutes might Your Honours, on that which has been	I just remind you of the reference we have given in
an appeal of John Francis Martin, a decision in New
South Wales in the Court of Criminal Appeal, (1990)
47 A Crim R, Martin's appeal commencing at 168 and
in dealing with the special circumstances relevant
to the subjective factors the court said, the fact that the prisoner:

had repaid -

certain of -

the sums illegally obtained -

Medina 16 12/3/91

in fact all of it by then was a relevant matter on

sentencing.

DAWSON J: That is right but the court had before it the

amounts that had been repaid.

MR HORLER:	Yes, they did, and he had repaid all of it - - -
DAWSON J:	No, no in this case the court had the amount that

had been repaid.

MR HORLER:	Yes, Your Honour, yes. But in Martin's case he had repaid all of it so that was finite and
concluded. In the instant case he had paid some
and had a long way to go.

DAWSON J: But if the Court of Criminal Appeal considered

that a gaol sentence was called for in any event,

it could not have called on to repay any more and

his ability to repay thereupon becomes irrelevant.

MR HORLER:  Yes. And the logic of that forces me to the

position to argue that the Court of Criminal Appeal

erred in that regard and that if repayment was

irrelevant and gaol was the only true sentencing

option, we were still denied natural justice

because our financial capacity might have been

relevant to a large fine.	You see, Your Honours,
it is not Griffiths' remand or two years gaol.	In

between there were other possibilities to which

this excluded evidence remained relevant, namely, a

hefty fine.

GAUDRON J:  Was weekend detention available in these

circumstances?

MR HORLER: Well, it is a Commonwealth offence, yes - no,

in 39 - dates - not then, no, so that was not a

sentencing option.

At the risk of repetition, not only the objective facts of his financial position, but some

assessment by the court after hearing from him of

his bona fide and his willingness to pay would have

been a matter relevant to the exercise or exercise

of the sentencing discretion and quite apart from

what accountants and balance sheets might have

disclosed or the Peppers' contract looking better

for him, his own testimony to that court must have

been a relevant matter for the court to have taken

into account in the exercise of its discretion, but
that did not happen, he was not permitted to do

that.

Your Honours, there is a case that we have

written in at the end of our submissions. It is a

case of Hunter - we have some copies.. It is a

Medina 17 12/3/91

decision of this Court on appeal from Queensland -

Hunter v Reg, 62 ALJR 432. We hand up five copies.

DAWSON J: That was a case where there had never been

submissions as to sentence.

MR HORLER:	That is right. Your Honours, the only other matter I would want to go to in the written
document and that, briefly, is paragraph 7 on page 3 which is relevant to the question of general
importance.  I would not have thought I would have
to persuade the Court that since the decision in
Griffiths the Griffiths' remand has been used not
only in New South Wales but in other States in the
Commonwealth and is commonly used. We did have in
mind to put on some statistical evidence as to that
but I would have thought the Court would take
judicial notice of the fact that it is a sentencing
option widely used and its relationship to the appeal rights of the Crown and the OPP does need
clarification and there is a general question over
and above Mr Medina's point that is relevant to the
special leave. Subject to that, that is all I wish
to put in elaboration of the document. If the
Court pleases.

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

MR WEINBERG:  If the Court pleases, may we hand to the Court

outlines of our submission.

MASON CJ:	Thank you.
MASON CJ:	What is concealed by the words "and did so" in

paragraph 5, second last line of that paragraph?

What is that designed to pick up?

MR WEINBERG: That is designed only to indicate,

Your Honour, that in the course of opposing the

Crown's appeal against inadequacy of sentence there

were no restrictions imposed upon the applicant, so

far as putting submissions, as to what would have

been and what was the appropriate penalty in the

circumstances. It is an opaque expression,

Your Honour, and we had not intended to conceal

anything by it. All we were intending to say was

that it is customary in appeals against sentence -

Crown appeals - for the respondent to those appeals

to be at large in terms of putting submissions as

to what was an appropriate penalty; why the

original penalty was within the range; and all

relevant matters of mitigation presented before the

sentencing judge are drawn to the court's

attention; all the evidence that was adduced below

as part of the general submissions made to the

court. I accept Your Honour's comment that it a

somewhat opaque expression.

Medina 18 12/3/91

If the Court pleases, there are two grounds

raised by the applicant in support of his

application for special leave but we have heard no

argument as such directed to the question of

remitter and whether the court fell into error in

declining to remit the matter. Does the Court

desire to hear submissions in relation to that

specific questions, or should I address the second

ground which is the question of whether the court

should have received further evidence?

MASON CJ: It is principally the second ground, I think,

that we are concerned with so you might proceed to
that and then we will consider whether or not we
will hear anything from you on the first of the

questions you have identified.

MR WEINBERG: If the Court pleases. In our submission, the

court's powers to deal with the appeal are fully

and properly set out in section SD of the Criminal

Appeal Act 1912 of New South Wales. If we can just

remind the Court of what those powers are on a

Crown appeal. Section SD(l) provides that:

The Attorney-General or the Director of Public

Prosecutions may appeal to the Court of

Criminal Appeal against any sentence

pronounced by the court of trail in any

proceedings to which the Crown was a party and

the Court of Criminal appeal may in its

discretion vary the sentence and impose such

sentence as to the said court may seem proper.

In our submission, that power vested in the

Court of Criminal Appeal permits the court to

impose a sentence which to it seems proper based

upon the material that was presented to the learned

sentencing judge at first instance and the court

ought ordinarily - - -

McHUGH J: Is that correct? If the court is exercising its

own discretion which seems to be accepted, then the

rules of natural justice require that the accused

be given an opportunity to be heard, and surely

that must mean given an opportunity to be heard on

the evidence which is available as at the date that

the order may be made against him.

MR WEINBERG: In our submission no, Your Honour. In our

submission the process that the court engages in

when it resentences is not, in effect, a rehearing

de novo, a process whereby a further plea can be

conducted as of right, evidence can be called as of

right. There are circumstances in which fresh

evidence may be placed before the Court of Criminal

Appeal in accordance with ordinary principles, but we submit that the court is not engaged then in the

Medina 19 12/3/91

process of resentencing the applicant by way of a
hearing de novo with all of the entitlements that a
prisoner has when being sentenced at first

instance.

If I could draw the Court's attention to some

authority in support of that proposition -

GAUDRON J: Before you do that, Mr Weinberg, perhaps you

might note there is a difference between

section 6(3) which deals with ordinary appeals

against sentence and section 5D(l) which does not

necessarily support what you have just said.

MR WEINBERG:  We are conscious of the difference in the

wording, Your Honour, and it is common in other

States as well to use the formula -

shall quash the sentence and pass such other

sentence in substitution therefor, and in any

other case shall dismiss the appeal.

There is a difference in the wording and we are

conscious of that difference, but we submit that

upon its proper construction section 5D does not

connote that there shall be a rehearing de novo

every time there is a Crown appeal which succeeds,

and if we could - - -

GAUDRON J: But it very much does suggest that it is a

decision to be made in the exercise of the

discretion of the Court of Criminal Appeal.

MR WEINBERG: It is certainly that, Your Honour. It is the

Court of Appeal's decision and it is exercising a sentencing discretion - - -

GAUDRON J:	As a separate and discrete discretion reposed in the Court of Criminal Appeal.
MR WEINBERG:	We accept that, Your Honour.
DAWSON J: Well, if it were a complete hearing de novo they

would have to start afresh every time.

MR WEINBERG:  Yes, precisely.

DAWSON J: They just would not worry about the decision

below.

MR WEINBERG: Well, having made the decision that the

decision below was erroneous and that therefore the

intervention of the Court of Criminal Appeal was

warranted, that would be stage one of the process.

Medina 20 12/3/91

DAWSON J:  If it were a hearing de novo you would start

afresh.	You would not worry about the decision
below.

MR WEINBERG:  There would be no need to demonstrate error at

all.

DAWSON J: It is a funny expression to use for the

procedure, but the procedure has always been one

whereby it is a rehearing in the sense of

proceeding on the evidence below with a discretion

to admit fresh evidence.

MR WEINBERG:  The Crown, of course, has the onus of pointing

to a demonstrable error in the sentence below.

DEANE J: But the appellate court must always have some

additional evidence before it. I mean, it must, for example, always know whether the accused has been in custody or free in the time between

sentence and appeal.

MR WEINBERG:  Yes, it does know that.

DEANE J: Well, once you reach that stage the consequence

must follow, must it not, that the appellate court

sentences on the circumstances which exist at the

time of its sentence?

MR WEINBERG: It does that, Your Honour, and it does that

specifically in New South Wales because the New

South Wales Court of Criminal Appeal adheres to an

application of a principle of double jeopardy. It

says, for example, "We think that the appropriate

sentence would have been eight years, but because
this is a Crown appeal we are going to reduce it to

seven." That is not a practice that is followed

universally, but it is one that seems to find

appeal - - -

DAWSON J:  I saw that, but I am not sure that I follow the

logic. What is it?

MR WEINBERG:  I do not think there is any, with respect,

Your Honour, but the Court of Criminal Appeal has

been doing it for a long time in New South Wales.

We would have thought that - - -

DAWSON J: What, by giving a discount you somehow save

someone from double jeopardy?

MR WEINBERG: Well, you get the double jeopardy principle

from Tait and Barkley, with respect, and you

already get that taken into account in the

reluctance of the court to intervene. The New

South Wales Court of Criminal Appeal double counts

it. It initially takes it into account by way of

Medina 21 12/3/91

being reluctant to intervene, and then when it does

intervene it gives you a further discount by way of

the double jeopardy.

McHUGH J: Well, did they say "discount"? They used to say,

in the old days, "at the bottom of the range"

MR WEINBERG:	They now actually do say, "We would have been minded to impose eight years but we're going to
give you seven because of the effect of double jeopardy." That is not an uncommon pronouncement
from the court when it allows a Crown appeal. So
that is an example, if I may answer Your Honour
Mr Justice Deane's question, of the court being
seized of additional material.  Of course it is but
the question is, "Is it the right of a respondent
to a Crown appeal to have a further plea or a
completely new plea placed before the court before
the court engages in a new sentencing process.

McHUGH J: It is not so much a question of the rules of

natural justice, is it? It is what they call for

in that situation. Supposing the accused wanted to

give evidence that he had incurable cancer, could

the Court of Criminal Appeal say, "In the exercise
of our discretion we refuse to hear that

evidence."?

MR WEINBERG:	Your Honour, that matter - - -
McHUGH J:	And refuse to admit that under 12(1)(e)?
MR WEINBERG:	That matter came before this Court in Bailey's

case, if the Court recalls the AIDS case, and that

was a case where the Court of Criminal Appeal

simply refused leave initially. The matter came

here and the matter was remitted to the Court of

Criminal Appeal saying that, "If you're going to

refuse leave in a case that seems to have merit you

ought to give reasons for doing so.". It went back

to the Court of Criminal Appeal.	The Court of
Criminal Appeal considered the new evidence and
said it made no different.	And then I think they

came back here again and this time did not succeed

in gaining special leave. So that kind of

situation does arise from time to time and, of

course, it is open to introduce fresh evidence of

that kind and that is evidence that was plainly not

available at the time the plea was dealt with.	It
is plainly relevant.

McHUGH J:  The real question is whether the court has the

right to refuse to entertain the evidence.

MR WEINBERG:  Your Honour, we would submit that on a proper

application of the principles governing fresh

evidence a court would always receive. such

Medina 22 12/3/91

evidence. So, in that sense, the court will always

receive that kind of evidence and it is not a

question, with respect, of whether the court has

the right to refuse it, it will always receive it

because it is properly fresh evidence. It is
cogent, it is important and it is material that a

Court of Criminal Appeal should receive; whether

it be an applicant who has been sentenced and

appeals against the sentence being manifestly

excessive or whether it be a respondent to a Crown

appeal. That kind of evidence is always received

and should always be received and taken into

account.

That is not what we are talking about, with

respect, in this case. We are talking about the

question of whether a Court of Criminal Appeal in a

Crown appeal, having decided that the sentence in question was manifestly inadequate, that there had to be a custodial sentence, is then obliged, according to the principles of natural justice, to permit a further plea to be made on behalf of the

respondent, to call such evidence as the respondent wishes to call, at large, as of right, not confined

to evidence which falls within the principles of

fresh evidence, further subjective evidence, more

character evidence, a whole range of material that

could have been led below if it was not - - -

DAWSON J:  He is not suggesting that. The only evidence

which is suggest would have been called goes to the

capacity to - - -

MR WEINBERG: That seems to be so, Your Honour, from what we

have heard from our learned friend.

McHUGH J:  He is not suggesting that but, in principle, I

would like to hear from you why that is not the

obligation of the Court of Criminal Appeal.

MR WEINBERG:  To hear further character evidence,

Your Honour?

McHUGH J: Yes, to hear further evidence if the accused

wants to present it. After all, he is now in new

jeopardy.

MR WEINBERG: Because, Your Honour, the process by which he

fell into that jeopardy was not a rehearing de

novo. It was not - and if it had been as it is in

cases of intermediate courts like the county court
or the district court where appeals are hearings de

novo then, of course, he gets the right to call

such evidence again as was led before the

magistrate.

Medina 23 12/3/91

When you have that kind of process then you have an absolute and unlimited right to present

such material and such evidence as you wish to in

support of the ultimate disposition. That is

because the sentencing judge is at large. He sits

in the shoes of the magistrate. That is not the

position of the Court of Criminal Appeal. That

court's jurisdiction is triggered only by a finding

of error on the part of the sentencing judge and

once that finding of error is made the court is

empowered by section SD to:

impose such sentence as to the said court may

seem proper.

Now, in our submission, it would be odd, at the

very least, if that provision connoted, in the case

of a Crown appeal, the right to the respondent to

then place an entirely new set of facts before the

court.

MCHUGH J:  That looks at it from the wrong end. The

question is not whether it connotes that	right but
whether it excludes that right which, by
implication, the common law would imply.

MR WEINBERG:  Could we approach it this way, Your Honour?

Supposing there had been no mitigating evidence at

all put before a sentencing judge and the

sentencing judge imposed a lenient sentence; the

Crown appealed; the court said, "Yes, that's a

ridiculous sentence, it's manifestly inadequate,

you've got to go to gaol for a very long period of time. Now, we'll hear your plea, other material."

The plea is so compelling, all this character

evidence that was never put before the judge at

first instance is brought forward. The court then says, ''Well, we' re now persuaded that the sentence

imposed originally was right and well within the

range even though it was erroneous on the material

then placed before the judge.".

Now, you would be getting not double jeopardy

but two bites of the cherry, if I can draw a

different metaphor, which the law simply does not

contemplate or allow for. It does allow for fresh

evidence in appropriate cases.

There is a public interest, in our respectful

submission, in ensuring that this process does not

go on, ad nauseam, indefinitely of very lengthy

pleas being placed before a Court of Criminal

Appeal. It is not a court which is well suited to

performing that kind of task which may, in a given

case, be a very lengthy task.

Medina 24 12/3/91

McHUGH J:  On the other hand, these appeals are

comparatively rare. It is not a section 6 -

MR WEINBERG:  No, Your Honour, they are comparatively rare

and we accept that.

McHUGH J: They seem to be increasing.

MR WEINBERG:  No, Your Honour, we deny that and the

statistics of the Commonwealth DPP will demonstrate

the falsity of that assertion.	They are
comparatively rare.	They are only brought in cases

where the Director is satisfied that the sentence

is one that ought to be appealed properly and is

not simply one that can be described as lenient.

McHUGH J:	What would the annual number brought be?
MR WEINBERG:	No more than 20 a year throughout Australia

presently - it is the Commonwealth I am talking

about. I cannot speak for my State counterparts.

McHUGH J:  No.

DAWSON J: But the rules of natural justice are satisfied by

the respondent, in an application such as this,

being able to demonstrate to the Court that there

is fresh evidence and if he demonstrates that and

it is relevant being able to call it.

MR WEINBERG: That is so, Your Honour, with respect.

DAWSON J: They do not call for anything more in the

circumstances.

MR WEINBERG:  No, Your Honour, and in our submission, such

intimation as we are able to glean as to what was

contemplated by the respondent below and the

applicant in this Court was that he wished to put

before the court further evidence about his

improved capacity to repay and nothing else. Now,

if that be the situation, with respect, we say that

the fact that the court had already accepted, we	simply could not have assisted the respondent given
say, that this was a case that called for a
custodial term and, in a sense, we are entitled to
say that the court had already given the respondent
the benefit of assuming that he was going to repay
because it must be recalled that the learned
sentencing judge, when he imposed sentence - and
this appears at page 89 - told the applicant in
this Court, that he was making:

no order as to the restitution of the balance

of the amount but it is obvious from what I

have said that unless restitution has been

Medina 25 12/3/91

made there will be no expectation of a

non-custodial sentence.

So, His Honour was saying, "There has to be full

restitution otherwise you will go to gaol". Now,

the Court of Criminal Appeal said that disposition,

even with that intimation, was manifestly

inadequate. So, in a sense, we are entitled to say

that the court was assuming that the applicant

would make full restitution and despite that fact,

the court was saying, this was a case that called

for a custodial term and nothing less. How then

can it be said, we say with respect, that evidence

that he had won Tatts Lotto last week and could pay

the money tomorrow could have assisted the
applicant at all in terms of the disposition that
the court saw as being the only appropriate
disposition in the circumstances of this case.

Could we say that, in so far as we are able to point to authority directly in point on this

question of whether a Crown appeal whether a

respondent is entitled to call fresh evidence or

further evidence - could we draw the Court's

attention to Reg v H, (1981) 3 A Crim R 53. That

was a Crown appeal in which the respondent sought

to introduce further evidence upon the Crown appeal

and if we draw the Court's attention to a passage

which appears at page 75 in the judgment of

His Honour Mr Justice Begg, after dealing with the

Crown's attempt to tender what can be described as

fresh evidence, rejecting that, about 15 lines from

the bottom, Mr Justice Begg said this:

The respondent.also filed two affidavits. The

court expressed the opinion that this matter

should not be admitted, but a final ruling on

the question of admissibility was deferred

until it was seen how the matter unfolded. I,

for my part, have read the material submitted.

It does not in any way influence my decision.

substantial justice is done, but it would only	In an appeal this Court has wide powers to see
be in rare and exceptional cases that
additional evidence as to what has occurred
since the hearing below was finalised can be admitted and certainly material which is
"fresh evidence" would have to comply with the ordinary requirements of the principles
relating to that type of material. My final
view is the material should be rejected in
this case.

That is the only direct pronouncement directly in

point dealing with a Crown appeal that we are able

to find and neither His Honour the Chief Justice

nor the President, Mr Justice Moffitt, directed

Medina 26 12/3/91

their attention to that point specifically, but

Mr Justice Begg certainly did.

DEANE J: If this case threw up that point, that is

obviously an important point and it is not

immediately apparent to me that Justice Begg's

answer to it is necessarily correct, but the

applicant's problem here seems to me to be whether

the case does throw up that point.

MR WEINBERG:  We take both points, Your Honour. We say that

the applicant's case does not throw the point up

and we say, secondly, or we submit, that His Honour

Mr Justice Begg was correct in saying that the

rules of fresh evidence do apply in these

circumstances.

It seems from the affidavit material - and it

has not been asserted to the contrary - that no

effort was made to introduce fresh evidence in any

proper form, that very little intimation was given

to the Court of Criminal Appeal of what the nature

of the evidence would be. One would be entitled to

say that it would not have taken very long for

counsel for the respondent to say, "Look, this is

the kind of evidence that I want to introduce. If

I need to prepare some affidavits and bring the

matter on in that way, I want leave to do it".

Nothing of that kind occurred. It was nothing more

than a general intimation that he wished to call

further evidence and we are now told that that was

limited to the question of restitution and for that
reason, we submit, this is not an appropriate

vehicle to raise the particular point of general

principle which might be behind the point that

Your Honour Mr Justice Deane has identified.

Now, I have not directed any attention at all,

obviously, to the question of whether the sentence

fixed by the Court of Criminal Appeal was an

appropriate sentence. We did not understand that

to be argued in the grounds of appeal but it was

that the sentence of 18 months with an additional	raised before this Court and all we would say is
term of six months is, itself, a very moderate sentence by comparison with a number of sentences
imposed for similar conduct by the New South Wales
Court of Criminal Appeal in cases not dissimilar to
this one. That is really all we desire to say, at
this stage, subject to the Court wishing to hear
from us in relation to the matter of remitter.

MASON CJ:  We need not trouble you on that, Mr Weinberg. Yes, Mr Horler?

MR HORLER: Briefly, a question concerning statistics was

put to my friend. While the appeals of the kind

Medina 27 12/3/91

concerned with here are infrequent so far as the

Commonwealth Director of Public Prosecutions is concerned, in New South Wales they are not infrequent and increasing and the problem is a difficult one in terms of the common use of

Griffiths' remands in New South Wales - State DPP

appeals.

The only other matter I wanted to say something about and put a further submission is

this: in our respectful submission, it would be

wrong to see this case as a fresh evidence point.

In answer to much of what my friend has said, we

say that in exercising its discretion in May 1990

the court was obliged to look at the prisoner's

circumstances then and it does not matter whether

or not the valiant Mr Byrne was unable to persuade

the court that the financial position had changed,

natural justice required that he be given that

opportunity so that that discretion in May 1990

could and should be properly exercised. He was

shut out from doing so and therefore there has been

a denial of natural justice. And in putting that

final submission, I want to just draw together some

untidy straws in my submissions and respond to my

friend. Those are the only matters in reply that I

want to put. If the Court pleases.

MASON CJ:  Thank you, Mr Horler. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 11.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.38 AM:

MASON CJ: This application for special leave to appeal

seeks to raise the important question whether, in a

Crown appeal under section SD of the Criminal

Appeal Act 1912 of New South Wales, the Court of

Criminal Appeal was under an obligation to receive

evidence from the respondent with respect to events

occurring after the hearing before the sentencing

judge. However, by majority, we are not persuaded

that the present case is a suitable vehicle for the

determination of that question.

It is not clear whether the applicant indicated to the Court of Criminal Appeal the

Medina 28 12/3/91

nature of the evidence which he wished to call.	It
now appears that the applicant wished to call
evidence as to his improved capacity to repay but, having regard to the conclusion reached by the
Court of Criminal Appeal that the offence called

for a custodial sentence, we are not persuaded that

the evidence which the applicant wished to call

would have influenced the length of the custodial

sentence which was imposed upon him. The

application for special leave to appeal is

therefore refused.

AT 11.40 AM THE MATTER WAS ADJOURNED SINE DIE

Medina 29 12/3/91