Michael Miller and the Queen

[2020] HCATrans 111

[2020] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A3 of 2020

B e t w e e n -

MICHAEL MILLER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO CONNECTION TO ADELAIDE

ON FRIDAY, 14 AUGUST 2020, AT 9.29 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   If the Court pleases, I appear with my learned friend, MR K.G. HANDSHIN, for the applicant.  (instructed by Barbaro Thilthorpe Lawyers)

MR M.G. HINTON, QC:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (SA))

NETTLE J:   Thank you, Ms Shaw.

MS SHAW:   Your Honours, it is submitted that an important point of principle is raised by this application about the test to be applied by an intermediate appellate court considering whether provocation should have been left to the jury in circumstances where the Court is satisfied that the subjective limb was raised on the evidence and where the trial judge directs the jury in relation to self‑defence.

We submit that the following specific questions are raised by the approach of the Court of Criminal Appeal in the present case.  Firstly, where an appellate court is addressing the threshold question of whether the provocation ought to have been left to the jury, is it the task of the appellate court to select what it considers to be the provocative conduct of the deceased rather than to identify the complete body of evidence which might have been considered by a jury as going to provocation had it been asked to consider the issue.

Secondly, is it the task of the Court of Criminal Appeal, considering the threshold question, to form its own view about the gravity of the provocation and then ask itself whether provocation of that gravity could have caused an ordinary person to lose self‑control and form an intention to do at least grievous bodily harm.

In particular, to the extent that the authorities describe the objective limb as involving a question of opinion or evaluative fact – for example, in Lindsay v The Queen (2015) 255 CLR 272 at paragraph 16 – did the Court of Criminal Appeal misunderstand these observations as authorising it to set the gravity of the provocation by reference to its own views of the case without proper deference to what the jury might have thought was the sting of the provocation from the viewpoint of the accused.

Thirdly, did the approach taken by the Court of Criminal Appeal, in particular at paragraph 144 of the judgment, conflate the question whether there was evidence raising the objective limb with whether the jury might ultimately have had a doubt about the applicant’s guilt and, if so, did this involve error.

The applicant also seeks to invoke the Court’s visitation jurisdiction.  In relation to our first contention, in essence the applicant’s complaint is that the Court of Criminal Appeal mistook its role and instead of simply surveying all of the evidence most favourable to the applicant which went to the question of provocation, it engaged in a selective fact‑finding task.  We submit the Court essentially disregarded the requirement that it consider whether provocation ought to have been left based on material in the evidence at its highest when viewed most favourably from the applicant’s standpoint.

GORDON J:   Ms Shaw, in relation to that contention, are the two complaints what you might call “contextual evidence”, that is, the girlfriend’s conduct and the history?

MS SHAW:   In addition to that, the applicant’s anxiety, that is, his own mental state, that had been exacerbated by the history that your Honour has noted, and that history, of course, relates to the period of some 12 months prior to 1 February 2017 when the deceased had threatened the applicant with a knife and a shiv, thereafter there had been a report to him by the deceased partner, of her having been assaulted and him seeing bruises, an intervention order he assisted her with, but then they fell out over her use of his phone, and in fact she informed him shortly before 1 February that when her partner, that is, the deceased, was released from prison, he was going to murder him.

And when the deceased did come to live next door, within a week of this event, the applicant heard him threatening him from the yard, and because of what he had been told by the deceased partner, he had already taken measures to keep himself safe, including placing a knife on the table in his house, and it was that knife that he decided to take with him to deter the deceased, should he emerge from the house.

Now, when his Honour ‑ when the Court of Criminal Appeal came to consider the approach to both the subjective limb and the objective test, his Honour Justice Stanley, commencing at paragraph 135 at application book 280, set out what he considered to be the most favourable view of the evidence from the applicant’s point of view, and summarised key features of the evidence before the Court.  But as we point out in our reply at paragraph 6, his Honour in fact omitted a number of features ‑ that is at application book 325 ‑ in relation to the evidence that a jury may have had regard to in evaluating the gravity of the provocative conduct. 

However, in terms of our complaint about his Honour Justice Stanley’s approach to the objective limb, what his Honour identified as the matrix of the provocative conduct at paragraph 135 for the purposes of the subjective test is in stark contrast with what his Honour finds to be the provocative conduct at its highest in relation to the objective test at paragraph 143 at application book 283.

In essence, at paragraph 283 when his Honour identifies the matrix of the provocative conduct he sets out five topics, each of which he qualifies in relation to their potential sting in terms of how a jury may have viewed those topics.  We submit, insofar as his Honour has proceeded to select in that way it is inconsistent, for example, with your Honour Justice Nettle’s observations in Lindsay at paragraph 79, page 299, that it is:

essential to keep in mind that the degree of provocation to which it must be assumed the ordinary person is subjected is the degree of provocation which was subjectively perceived by the accused. 

That is the fact that his Honour has essentially diluted and watered down the matrix of the provocation for the objective test we submit bespeaks an erroneous approach.

We submit there is no scope for a court of criminal appeal to be selective about the facts in relation to its consideration of either the subjective or objective limb.  We submit, in paragraph 4, application book 325 of our reply, that Chief Justice Barwick in Moffa’s Case make it plain that the Court of Criminal Appeal:

had to look at the “situation in its entirety” in order to ascertain what the jury might have thought of the provocative conduct.

The second question that our application raises is does the task of the appellate court involve forming a value judgment about the sting of the provocation.  There are, essentially, two issues arising for consideration under the umbrella of this question.  The first is the correct approach to be taken by an appellate court in determining the gravity of the provocation when considering a threshold question.  The second concerns the meaning of this Court’s reference, in Lindsay, at paragraph 16, to the objective limb involving a question of opinion or evaluative fact.

As to the first issue, the correct approach, we submit, is that stated by Chief Justice Brennan in Green (1997) 191 CLR 334 at 345, where his Honour observes that it is not the function of the appellate court to substitute the view that a jury might have taken as to the gravity of the provocation on the particular accused which, in turn, sets the framework within which the ordinary person whom is considered with its own view as of the sting of the provocation.

So, your Honours, when we turn to paragraph 137, application book 280 where his Honour Justice Stanley is considering the sting of the provocation having regard to the antecedent interactions between the applicant and the deceased, he identifies what, in his view, the history demonstrates about that history of antipathy.

We submit that this approach was incorrect.  His Honour was required to consider what view a jury might possibly take on the basis of the material in the evidence viewed most favourably from the applicant’s standpoint.  Instead, his Honour identified competing arguments and qualifications in relation to that history so, we submit, to dilute the potential sting of the provocative conduct from the applicant’s perspective.

For example, his Honour notes that the prior threat with a knife and a shiv had not resulted in injury and that the applicant was taking medication for his anxiety.  In fact, the applicant’s evidence was that, at the time, he was being goaded and tormented on the road where he was too fearful to turn his back because of the deceased’s threats with a spear, his approaching him with his shirt, and standing and goading him to stab him or to use the knife.  He felt anxious and felt glued to the spot and this was the same sensation he had for which he took the medication.

His Honour emphasised that the applicant verbally abused the deceased.  However, the applicant’s evidence was he did this hoping to draw attention to his predicament in the face of the deceased’s threatening conduct.  It is submitted that for his Honour to express his own view as to the qualifications to the evidence relied upon by the applicant was in error.

It was firstly to engage in a fact‑finding exercise, which is a role of the jury, and, secondly, it was not to take the evidence at its highest when viewed from the applicant’s standpoint.  In this respect, we refer to the remarks of Chief Justice Dixon in Parker which are set out in the applicant’s written submissions at paragraph 35, application book 305 where his Honour said:

The selection and evaluation of the facts and factors upon which that conclusion would be based would be for the jury and it would not matter what qualifying or opposing considerations the Court might see:  they would not matter because the question was, ex hypothesi, one for the jury and not for the Court.

We submit that the task of the appellate court is simply to identify the provocation matrix by isolating the body of evidence that is most favourable to the accused on the issue.  We submit that in relation to paragraph 138 his Honour appears to diminish the significance of the gravity of the provocation because it does not fit into one of the well‑known categories of cases.

However, in this case, of course, the applicant’s loss of ‑ sudden and temporary loss of self‑control was premised on a violent history of the deceased and his fear that was exacerbated and on the night the loss of self‑control was, insofar as the case for provocation was concerned, linked to fear and panic, as this Court has discussed in Van den Hoek’s Case.

The most stark example of his Honour’s sifting through the bounds of the potential provocation and its gravity is at paragraph 140 where his Honour addressed the applicant’s submission as to the provocation by the deceased in the context of verbal abuse.  His Honour interleaves in that discussion arguments against the sting of the provocation and concludes himself at line 31 of application book 281:

There is no basis upon which the jury could consider that the verbal abuse hurled at the applicant by the deceased would occasion any great offence. 

We submit that may not be a finding that a jury would arrive at, namely, a jury might take a different view.  Nevertheless, his Honour did find at paragraph 141 that the threshold test for the subjective limb was met and, in relation to the paragraph – I am sorry, at 142 his Honour found the subjective limb was met, but in paragraph 141 when his Honour ‑ at application book 282 ‑ when his Honour was outlining the gravity of the provocation and its sting, that is the potential matters that a jury might have regard to, his Honour listed, in essence, more than 10 points against the question of whether or not the applicant had met the threshold test.  But, as I said, nevertheless, he did find that, on the basis of Lillian Bridgland’s evidence, the threshold test for the subjective test was met.

In our respectful submission, when his Honour came to paragraph 143, which concerns the second related issue, that is, his Honour’s assumption or premise that his role is, we submit wrongly, to approach the objective limb on the basis that because ultimately, for the jury, it was a matter, a question of opinion and evaluative fact, that was, in effect, what the Court of Appeal’s role was in determining the threshold question.  So at application book 283, when his Honour turned to the objective limb, he referred in particular to what he identified as the function of the appellate court, as:

of the trial judge, to fix the boundaries of the minimum powers of self‑control that must be observed –

and we accept that that is a correct statement as to what this Court held in Lindsay.  However, when his Honour goes on to say:

This is a question of opinion or evaluative fact ‑

that is, indeed, not what the function of the Court of Appeal is, and the Court must stay with the original submission we put, that it is required to consider the evidence from the viewpoint most favourable to the accused.

Therefore, by distilling the entire history of relationship and the 13 minutes of goading and tormenting the applicant on the road before the deceased ran at him with the second pole he had picked up and hit him three times, and the applicant stabbed him once in response, that was distilled down to, in essence, five points which, in the way they were described by his Honour, were diluted of any sting of any moment.  So when his Honour came to paragraph 144, to find that:

Considering all the evidence at its most favourable to the applicant –

That, of course, was wrongly assuming that his role had been to express ‑ make findings about the gravity of the provocation in relation to the objective test and to conclude therefore that the applicant’s case did not meet that threshold.  And we complain also that his Honour then posed the critical question by really engaging in the question that might be posed on a ground of appeal relating to “unsafe”, and that was an error, and his Honour then reversed the onus of proof in relation to that paragraph.

However, in our respectful submission, it is a matter of public importance as to whether or not the Court of Appeal has wrongly taken upon itself a construction of Lindsay that its role includes the determination of the sting of the provocation for itself.  And this was in a case, we submit, where the case, as borne out by self‑defence having been left, did in fact raise a strong case of provocation that ought not to have been withdrawn from the jury as it was as a result of the approach that was taken by the trial judge, bearing in mind his obligations under Pemble v The Queen.  And importantly, because my client has been convicted of murder and sentenced to life imprisonment, we submit that this matter is worthy of the Court’s visitation and jurisdiction.  If the Court pleases.

NETTLE J:   Thank you, Ms Shaw.  Mr Hinton.

MR HINTON:   Can I start with one observation.  In Lindsay v The Queen, this Court did not, with respect, establish any new principle with respect to the common law doctrine of provocation.  This Court applied what it had previously held in the cases of Masciantonio v The Queen and Stingel v The Queen.  There is, with respect, no uncertainty arising from this Court’s judgment in Lindsay, and in particular paragraph 16, to which my learned friend referred, that requires this Court to revisit what it wrote in order to make matters plain.

The common law doctrine of provocation, which now applies only in this State, has long been settled.  The role of the trial judge in determining whether or not to leave the defence of provocation to the jury has long been settled.  In Stingel v The Queen, at page 334 – I apologise but I will read this one passage to your Honours quite quickly – the unanimous High Court said:

The result is that the question for a trial judge under s.160(3) –

of the Tasmanian Criminal Code, which at that time was no different to the common law:

can be summarized as being whether, on the version of events most favourable to the accused, which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.

That was the position in 1990.  Nothing in Masciantonio changed that.  Nothing in Lindsay changed that.  What we have here is that approach being applied by the Court of Criminal Appeal in determining whether or not the trial judge, in this case, was right not to lead the defence.

If that is accepted, this case does not raise a question of general importance for the consideration of this Court.  It does not raise a question of general importance because, when a trial judge is considering whether, on the version of events most favourable to the accused, suggested by the material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked, the judge must necessarily consider and evaluate the evidence as it applies to both limbs of the doctrine of provocation.

An evaluation necessarily requires drawing certain conclusions.  The conclusions are bounded by what this law has said with respect to the task, and by that I mean the task is to determine what the jury might do, and what the jury might do when it applies the ordinary person test subject of the second limb.

So we have here a purported – I say “purported” – standard application of principles that are settled.  If your Honours accept that, then the only question for your Honours is whether or not in that standard application Justice Stanley, with whom Justices Parker and Doyle agreed, has gone so far wrong that this case merits a grant of special leave.

Can I take your Honours to Justice Stanley’s judgment and a whirlwind tour of it, if I may, commencing at page 275 of the application book.  All I point out is that between 275, paragraphs 116 to 122, on page 277, his Honour records the submissions made.  At paragraphs 123 to 133 he then refers to what is settled principle.  No complaint is made with respect to his identification of the two limbs of the doctrine of provocation at paragraph 123, application book 277.  No complaint is made with respect to his Honour’s reference to the principles as discussed in Masciantonio at paragraph 125, Lindsay at 127 and 128. Here his Honour is concerned to direct himself, in effect, with respect to the Court’s task in assessing whether or not the defence should have been left. Again, settled principle, settled by this Court and repeated.

I draw your Honours’ attention in particular to paragraph 125.  It is an expansion on 124.  The language is significant because, as we will see, it is that very language that Justice Stanley comes back to when he purports to express his conclusion.  In Masciantonio at page 68 this Court said that the question for the trial is the same as the question for an appellate court where the issue is whether or not provocation should have been left.  At paragraphs 127 to 129 Justice Stanley is still focusing on the question for the judge and, indeed, the question for the appellate court.  In Lindsay this Court reaffirmed that a trial judge is:

authorised to take the issue [of provocation] from the jury . . . [if] no reasonable person could possibly conclude, in the situation viewed most favourably from the standpoint of the accused, that no ordinary man could have so far lost his self‑control as to form an intent to [kill or] at least do grievous bodily harm –

and act on it.  “Could possibly conclude” – those words require an assessment of the evidence by the trial judge and on appeal by the Court of Criminal Appeal.  To suggest in this case that once ‑ it seems to be the suggestion that once you have evidence of provocative conduct, it must necessarily be left to the jury ‑ some evidence – smacks of the same submission that was made in Lindsay and rejected.

At paragraph 135 of his judgment Justice Stanley turns to identify the potentially provocative conduct.  Now, with respect to Justice Stanley, this is against the background of earlier in his judgment setting out in great detail what transpired on the night, and I would ask your Honours to bear in mind that what transpired was an episode that we know lasted a little over 13 minutes.

Now, we know that objectively because there was a triple zero call made and the caller ‑ the deceased’s girlfriend and subsequently her sister, or sister‑in‑law if my memory corrects me – remained on the phone throughout the duration of the incident.  For 13 minutes we have these men sizing up to one another with a brief interlude where the deceased goes back into his house. 

But that is relevant to the assessment of the provocative conduct.  Justice Stanley in his recitation of the evidence pays close attention to the triple zero call because of what it necessarily recorded in the background.  You could hear the events unfolding and you could also hear the narrative given by the girlfriend at the time speaking to the operator.  So this was not a brief incident.  So that history that my learned friend referred to – there was an incident some 10 months before with the knife or the shiv – has to be considered in the light of this 13‑plus minute episode where the accused first leaves his home to go out but stops, stops in front of the deceased’s home next door and does not keep going on his way. 

At paragraphs 136 to 138, after identifying the provocative conduct, Justice Stanley is concerned with identifying the gravity of that conduct from the viewpoint of the applicant.  Standard approach.  That is what he is required to do, applying the law as settled by this Court.

At paragraph 140 – which my learned friend places quite significant weight on – his Honour is concerned to deal with a submission put by the applicant in the Court below.  That was, that the language used by the deceased “was emasculating”.  That submission, made against the background of the deceased eschewing the defence of provocation ‑ and I immediately accept that that does not dispose of the issue ‑ but his evidence was, he acted in self‑defence.  One strike and within three minutes he is calm and on the telephone to the police.

Here, we are dealing with the suggestion, not embraced by the accused, although he was fearful that he was emasculated by the language used by the deceased.  When one has regard to the evidence, as set out by Justice Stanley earlier in his judgment, we will see that these two were abusing each other equally.  At paragraphs 141 to 142, the judge deals with the subjective there.  The last sentence of 142, he arrives at his conclusion:

there was some evidence from which the jury could infer –

He then turns to the objective limb.  The question is, on the evidence, could a jury – a reasonable jury – fail to be satisfied beyond reasonable doubt that the provocative conduct, measured in gravity from the position or viewpoint of the accused, could have caused an ordinary person to form an intent to kill or cause grievous bodily harm.  Again, that requires an assessment of the provocative conduct, from the viewpoint of the accused.  Then, the application to that, of the ordinary person’s standard.  The question being, could the jury?  If the Court concluded that it was not possible, the defence could not be left.  If the Court concluded that it was not possible, that is a finding of law.  The evidence just cannot possibly satisfy that limb.

I pause here for a moment, in Justice Stanley’s judgment, to point out to your Honours – if your Honours are not already aware, which I am sure you are – that that was the very task undertaken by this Court in Stingel.

NETTLE J:   I will tell you what really worries me about this case and that is the difference in apparent attitude towards the facts between the trial judge and Justice Stanley.  When I look back at the sentencing remarks, say at page 235 of the application book – I beg your pardon – page 236, at the bottom, the impression one gets of what happened is considerably different from and more favourable to the accused than that which one gets from Justice Stanley’s treatment of the subject.

When I combine that with the fact the trial judge was convinced that there was a case of self‑defence to be left to the jury, and as I read his Honour’s directions to the jury, appears to have been fairly strongly of the view that there was a good case of self‑defence, it is difficult – at least, prima facie – to reach the conclusion that no jury, acting reasonably and properly instructed, could exclude beyond reasonable doubt the possibility that the man was so much provoked as to form the intent to inflict grievous bodily harm and go on and do what he did.

MR HINTON:   Can I deal with those observations one at a time.  Firstly, at 236 of the application book.  Here in South Australia, we have a minimum non‑parole period for murder, standard non‑parole period of 20 years, and the legislation states that the standard non‑parole period reflects a murder at the lower end of the scale of objective seriousness.

So when we look at 236, we see the sentencing judge is attempting to determine where on the scale of objective seriousness this murder lies.  Now, in the circumstances of this offence, where, at around about the 13 minute mark, the deceased comes at the applicant with a pole, your Honour Justice Nettle is right, there is grounds to lead the defence of self‑defence, as it was.

NETTLE J:   It is an unusual case when there is grounds for self‑defence but not provocation.

MR HINTON:   Unusual, yes.  I could not stand here and say that the usual case is that they do not go together.

NETTLE J:   Most trial judges would be hesitant, to say the least, not to leave provocation when self‑defence is open.

MR HINTON:   Again, most trial judges would, I agree.  Two questions, though.  One, is there a question of general importance, no; two, has the court here erred in applying established principle, the submission I am putting to your Honours is no.  Just because it is unusual, with respect, does not mean that there was necessarily error.  What was it about the facts in this case that meant that it is arguable before your Honours such that a grant of special leave should be warranted?  In my submission, nothing.  These two men were known antagonists, they knew each other, this was 13 minutes long, at any point in time he could have left.

He stood there, he had armed himself with a knife before he went “in case”, the deceased retreated at a certain point in time inside the house, the applicant did not leave, each abused each other back and forward, most of the time from a position one on his front lawn or inside the fence line, the other on the road, at various times they did approach then back away.  In my submission, this is not a case where it can be said that the evaluation by Justice Stanley on the objective limb has gone awry to the extent that a grant of special leave should be made.  What your Honours are asked to do is to sit as a Court of Criminal Appeal yet again.  In my submission, the task performed was in accordance with the principles established by this Court.  Those are my submissions, if the Court pleases.

NETTLE J:   Thank you, Mr Hinton.  Ms Shaw, is there any reply?

MS SHAW:   Yes, your Honour.  Firstly, we submit that the factual submissions by the Director are premised on the dilution of what was the applicant’s case at is highest, and that the observations of Justice Peek in the sentencing remarks reflect that his Honour, as you said, accepted the applicant’s evidence as to the state of his fear and history insofar as it was not inconsistent with the jury verdict.

So, insofar as my learned friends suggest, it was tit for tat, for example.  That was not the applicant’s evidence, the applicant’s evidence, in particular, at page 168, was that it was the deceased who had emerged from the home whilst the applicant was merely walking quietly past ‑ ‑ ‑

NETTLE J:   Ms Shaw, can I ask you this ‑ I am sorry to interrupt.  What do you say to the Director’s submission that whether or not that would be so, you are really just asking this Court to sit as a further Court of Criminal Appeal and there is no question of principle worthy of this Court’s consideration involved in the matter?

MS SHAW:   Your Honour, there are two important questions of principle.  The first is that the Court of Appeal has wrongly taken the view that paragraph 16 of Lindsay permits the Court, obliges the Court to undertake a fact‑finding exercise.  That is critical in the area of provocation because if the Court of Appeal undertakes a fact‑finding exercise which, in effect, is contra the applicant’s case at its highest, then an applicant and an accused is being denied the opportunity for provocation to be left to the jury and, indeed, is precisely the error that is highlighted in Lindsay v The Queen at paragraph 39 where the Court held that the approach of Justice Peek below in that case had been to engage in an essentially factual conclusion.

So, if in the area of provocation this Court does not have the opportunity to correct whether or not the Court of Appeal is entitled to make value judgments and make findings of fact about the contestable evidence in the matrix of the prosecution case, then the availability of the partial defence of provocation in this State could be set at a very low standard and become almost unavailable. 

That is, it purports to qualify what are the high principles that have been established both through the provocation cases but, in particular, through Pemble and his Honour Chief Justice Dixon in Parker, that if on any version of the evidence a jury might find a case for provocation there is an obligation to leave it.  And it also confirms that whereas this Court has held there is a limited scope for the application of the objective test, if the subjective test is satisfied, and I agree that the argument that there was no scope in Lindsay was rejected but the High Court in Lindsay did confirm there was a limited scope.

And what has occurred here is that the Court of Appeal has addressed that limited scope upon what it sees as a principle, namely, it is entitled to engage in an evaluative task and, therefore, deny an applicant charged with murder the benefit of this partial defence.  We submit, in those circumstances, it is worthy of special leave because it will govern the availability of provocation in this State on the basis of a misapplication and wrong construction of Lindsay which is fundamental.

The facts of this case highlighted and demonstrated what can happen.  A trial judge and the accused’s evidence can have one permutation.  The Court of Appeal’s evaluation can have a completely different and weakened permutation and, in our respectful submission, that is to contravene the fundamental principle that a partial defence of provocation should not be withdrawn from a jury.  It is for the jury to determine as the fact finder whether there is any basis to find that it is tit for tat or any basis to underrate what the applicant might say or an accused might say is the gravity of the provocation for him.

In addition, it limits the availability by reason of paragraph 139 the availability of provocation to cases that fall within a set category or where the accused has a particular characteristic and, we submit, that that is again a wrong limitation on the availability of provocation to an accused in this State.  If the Court pleases.

NETTLE J:   In this matter, there will be a grant of special leave.  The Registrar will write to counsels’ instructing solicitors early in the new week for the directions to be followed in the lead‑up to the appeal.  Thank you both, lady and gentleman.

AT 10.15 AM THE MATTER WAS ADJOURNED