OKS v The State of Western Australia

[2019] HCATrans 11

[2019] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P62 of 2018

B e t w e e n -

OKS

Appellant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

BELL J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 FEBRUARY 2019, AT 9:45 AM

Copyright in the High Court of Australia

MR S.A. VANDONGEN, SC:   If your Honours please, together with MR S. NIGAM, I appear for the appellant in this matter.  (instructed by Nigams Legal)

MS A.L. FORRESTER, SC:   If your Honours please, I appear with MS K.C. COOK to represent the State in this matter.  (instructed by the Director of Public Prosecutions (WA))

BELL J:   Yes, Mr Vandongen.

MR VANDONGEN:   Thank you, your Honours.  Your Honours should have our outline of oral argument.  I will allow your Honours to briefly look at that because one thing I want to say about it and about the submissions filed on behalf of the appellant.  You will note in the outline of oral argument that there are no propositions directed to the proposition that the reasons of the Court of Appeal were inadequate, albeit that they were the subject of submissions. 

Upon reflection and upon looking at the materials that were filed in the special leave application, I have considered it is not appropriate for me to make that argument now because it was not relied upon at special leave, so I withdraw those submissions and do not seek to make any further point about them.

BELL J:   Thank you for that, Mr Vandongen. 

MR VANDONGEN:   This appeal concerns a matter of very short compass and I do not anticipate that I will be terribly long in oral submissions, having regard to the issues that are raised by the ground of appeal. The appeal concerns the question of whether the Court of Appeal was correct to apply the proviso in section 30(4) of the Criminal AppealsAct 2004 (WA) in circumstances in which an erroneous direction was given to the jury that precluded a process of reasoning that was relevant to a critical issue in the trial, that is, the complainant’s credibility.

Now, just pausing there for the moment, I note from the respondent’s submissions – and they, quite properly, in their additional materials, point to other materials that, it could be said, properly so, supported the complainant’s evidence.  That does not, in my submission, detract from the fundamental proposition that the credibility of the complainant was absolutely crucial at the trial.  In fact, that is the way the trial was conducted.  The directions that were given to the jury about that issue made it clear to the jury that the crucial issue for them to determine was the credibility of the complainant, particularly as her evidence was the only evidence about the acts, the subject of the counts on the indictment.

BELL J:   Yes.

MR VANDONGEN:   What I was going to do was, before going to the actual reasons of the court, and by reference particularly to the President’s reasons for deciding to apply the proviso and to dismiss the appeal, was to first identify the relevant direction - and I will do that very, very quickly but then also to identify the evidence with which that direction was concerned. 
           If I could ask your Honours, dealing with the first point, the identity of the relevant directions, to take up the core appeal book and if I could direct your Honours to page 35 of the core appeal book to the direction that appears in about line 22 in a paragraph that begins “But do not follow a process of reasoning”.  What was called the impugned direction in the court below is that direction there which is contained wholly within that first sentence of that second complete paragraph.

BELL J:   It was the defence case that the jury could not be satisfied to the requisite standard because the complainant was shown to have been untruthful on occasions and her evidence in relation to count 1 was unreliable.

MR VANDONGEN:   Yes, your Honour.

GORDON J:   Is that what is recorded on page 34 of the appeal book by way of the judge’s summary at about lines 33 to 35?

MR VANDONGEN:   Yes, your Honour, it is.

GORDON J:   So that is it is part of the accused’s case that he put to the jury that the actual process of reasoning was, in a sense, what was relied upon?

MR VANDONGEN:   It is, yes, your Honour.  You do not have the closing addresses, I do not think, in the appeal books.  Reference is made in the judgment below to the closing addresses and to the points that were made by counsel.  You can see that in ‑ ‑ ‑

GORDON J:   But what appears at page 34 is an accurate summary of what was the case put to the jury by the accused’s counsel.

MR VANDONGEN:   Yes, your Honour.  There were, I think, seven points.  If you look at page 96 of the appeal book, the core appeal book, you will see there at paragraph 35 of the learned President’s judgment a summary of the seven factors that were relied upon by defence counsel in closing. 

BELL J:   And in considering the substantive ground on appeal that challenged the direction, the President accepted not only that it was a direction of law, as distinct from a comment ‑ ‑ ‑

MR VANDONGEN:   Yes.

BELL J:    ‑ ‑ ‑ but that, applying conventional principle, it must be assumed the jury acted upon the direction.

MR VANDONGEN:   Yes, your Honour.  I have identified the relevant direction.  The evidence with which that direction was concerned was summarised by the Court of Appeal at core appeal book page 99.  And at paragraph 56, his Honour the President sets out in paragraphs (a) through to (f) the actual admitted or alleged lies that were relied upon by the defence at trial.

Can I add to that, to make this point clear, that paragraph (c) is a description of a lie that, despite her claims to the contrary at trial, the complainant had not told the police about her involvement in drug dealing.  It needs to be emphasised that that was a lie if accepted by the jury on oath because that was her actual evidence at trial, a denial that she had told the police – evidence that she had told the police about her involvement in drug dealing and then evidence from the investigating officer which was adduced in cross‑examination that he had not been told that she had been involved in drug dealing.  That was perhaps a more significant lie in the context of things.

In addition to that, there is one lie which is not identified by the Court of Appeal in that paragraph.  If your Honours look at core appeal book page 34, at about line 51 in the last paragraph, there is one additional lie which was actually drawn to the attention of the jury by the trial judge and it was to this effect, that originally the allegation that was made by the complainant in her statement was that the touching, the subject of count 1, had occurred over the top of her underpants. 

At trial, before the jury was empaneled, that allegation was removed, presumably as a consequence of proofing the complainant.  The complainant was cross‑examined about that change and she admitted in evidence that that was a lie in the sense that she had lied to the police in her statement about whether touching had been under or over her underpants.

You can see that, and I do not need to take you to it, but I can tell you that in the appellant’s book of further materials you will find that cross‑examination at page 396 through to 397.  So that is one additional lie which is not recorded by the Court of Appeal in its summary of the admitted or alleged lies at the paragraph that I have just taken you to. 

Having identified the impugned direction and the lies that were relied upon, you will see, before I go to the reasons, that in the identification of the lies his Honour the President has given references to the transcript pages, so I do not need to take your Honours to that. 

Can I then turn to the reasons for decision and direct your Honours to core appeal book page 121.  What his Honour the President does is, over the course of four pages, from page 121 to 124, set out in different paragraphs what he says were eight reasons for applying the proviso in this particular case.  You would have seen from our written submissions that, when properly analysed, in our submission those reasons really collapse into, perhaps, three reasons, not the eight reasons that his Honour refers to. 

Before coming to the kernel of his reasons, can I identify the other two reasons which I say collapse from those eight reasons. The first reason is at paragraph 137 on page 124, the paragraph which begins “Sixthly”.  In that paragraph his Honour deals with the proposition that the error was a fundamental error in the sense that it did not matter whether proof beyond reasonable doubt was established by the Court of Appeal.  It was an error of a nature that automatically led to the non‑application of the proviso.  His Honour rejected that there.  So that was one of the reasons for his decision, the court’s decision, to apply the proviso.

The second reason that he gave at paragraph 139 really does not concern your Honours and it is not an issue raised in the appeal.  It is a matter of history that what occurred in this case is that the State did not originally rely upon the proviso at the hearing of the appeal.  The court then wrote to the parties after the hearing of the appeal and asked whether or not it was open to the Court to apply the proviso, and submissions were made in response to that. 

As a consequence of those submissions, the Court of Appeal then wrote to the parties again, setting out the reasoning process which might be adopted in applying the proviso and then applied the proviso consistent with those reasons that were provided to the parties.  So the eighth reason really does not take the matter much further – a long way of telling your Honours that it does not take the matter much further. 

The kernel, if you like, of the reasons of his Honour are contained at paragraph 134.  No doubt his Honour was directing his attention to the nature and, perhaps more importantly, the effect of the impugned direction by reference to whether or not the effect of the impugned direction would have on the determination that was actually made by the jury.  You can see in that paragraph, which begins with the word “thirdly” he says, about three lines down:

I have no doubt that the impugned direction would have had no significance in the jury’s determination of the verdict of guilty on count 1.

What I then say is that what is missing between that sentence and the next sentence is the word “because”, and the “because” is “because” of the other directions that were given by the trial judge effectively neutralised – my word, in fact, the respondent’s word – the impugned direction. 

So what his Honour does is refer to the directions that he has set out at paragraph 32 on page 122, but when you look at the other reasons that he gave ‑ that is, at paragraph 135 and 136 ‑ they are all species of or come on the back of the conclusion that the impugned direction would have had no significance in the jury’s determination because of the directions. 

That conclusion then fed into the reason in paragraph 135, and you can see that in paragraph (a) of 135.  So a conclusion that the court could give very significant weight to the jury’s verdict was directly informed by the conclusion in paragraph 134 that the impugned direction would have had no significance in the jury’s determination.  So that is how his Honour, at least in part, led to the conclusion that you could give significant weight to the jury’s verdict.

Then paragraph 136, which is the fifth reason, incorporates at paragraph (b) the giving of significant weight to the jury’s determination and leading to a conclusion, making due allowance for the natural limitations to a conclusion that the appellant had been proved beyond reasonable doubt to be guilty of the offence in count 1.  That is why I say the kernel of his Honour’s decision was a determination or an absence of doubt that the impugned direction would have had no significance in the jury’s determination of the verdict of guilty on count 1.

EDELMAN J:   That is really what your submission comes down to, is it not?  It is that if the impugned direction had a significant effect on the jury then it is not possible for an appellate court to say that the conviction was inevitable?

MR VANDONGEN:   Yes, your Honour.  And the argument that is put against me – and it probably arises from what the President said – is that those other directions neutralised the impugned direction.  So in examining that question one needs to look at the directions that were given and are said to have neutralised the impugned direction.  Can I do that by reference to the directions that are set out at paragraph 132.  To take, for example, what we say is far from neutralising the direction, the impugned direction qualified the directions that are set out in paragraph 132.

To demonstrate that can I use paragraph (a), a direction that the jury must scrutinise the complainant’s evidence with special care.  When one inputs into that ‑ because all of the directions had to be followed by the jury, including the impugned direction.  When one inserts the impugned direction into that direction, it would read “the jury must scrutinise S’s evidence with special care but not to the extent of the impugned direction”.  So not to the extent of reasoning in a way which was prohibited by the impugned direction.

Paragraph (b) of 132 is really just a repetition of paragraph (a), with respect to his Honour.  It is really with more emphasis, identifying a direction which required scrutiny of the complainant’s evidence with care.  And, again, the same submissions that I have made about paragraph (a) would apply.

Paragraph (c) is concerned with inconsistent statements.  It is not clear, in my submission, how a direction on inconsistent statements could have neutralised the impugned direction.  It may be that, to some extent, some of the lies relied upon the existence of inconsistencies to establish the lie.  But, even then, it means take into account the inconsistencies but do not take into account to the extent allowed for in the reasoning process prohibited by the impugned direction.

Paragraphs (d) and (e):  again, this is acknowledging that the jury was entitled to take into account lies in its assessment in relation to counts 1 and 2, and indeed by other directions that appear on each side of the impugned direction.  But the effect of the impugned direction is to qualify that scrutiny; that taking into account, and affording significance to those lies, it qualifies the significance that might be placed upon those lies by reducing the weight or the reasoning process, whichever way you look at it, that could be afforded to those lies.

Paragraph (f), a standard direction of course, that the jury could not convict without being satisfied of the complainant’s evidence beyond reasonable doubt – truthful, accurate and reliable – but of course subject to the qualification that the prohibition against reasoning in the way in which it was prohibited by the impugned direction.  And paragraph (g) is really just a combination of all of the above directions, so the same submissions would apply in relation to that.  In a nutshell, that is our submission on the appeals; that it cannot be said to have neutralised those directions.

EDELMAN J:   Your submission really is concerned with, ultimately, whether an appellate court can second‑guess a jury, in light of a credibility‑type issue.  Whatever conclusion one reached upon that issue, that really encompasses your second ground, does it not?

MR VANDONGEN:   Yes.  It does, yes.  The conclusion, yes.

EDELMAN J:   Yes.  So it is not really a case of whether or not the misdirection was so fundamental that one could not get to any consideration of inevitability at all.

MR VANDONGEN:   No.  The submission that we make about fundamental arises from the characterisation of the impugned direction by the Court of Appeal itself.  Recognising that what it did was disrupt the fundamental roles of the judge and the jury, in the sense that the judge inserted himself into the fact‑finding processes of the jury.  And having regard to what we have quoted was said as a party, that the fundamental differences between the judge and the jury, and the disruption of that in this case, could lead to a conclusion that, even without looking at the effect of the error, that the proviso could not be applied in this case.

BELL J:   Perhaps the easier path is ‑ ‑ ‑

MR VANDONGEN:   Exactly.

BELL J:    ‑ ‑ ‑  to say, consistently with Weiss and a succession of decisions that have followed it, that in an instance where the central issue was the credibility of the complainant, a direction that takes away from the jury as a matter of law a path of reasoning that in fact was open to them, would not permit the appellate court to conclude that the precondition for the proviso was engaged.  Though I appreciate that his Honour noted the advantage that the jury had, your contention is one simply cannot make an assessment of credibility on the record, having regard to the nature of the error.

MR VANDONGEN:   Yes, your Honour.  Yes.

BELL J:   Yes, I think we have the point.

MR VANDONGEN:   I am about to sit down, because they are my submissions.  Your Honour put to me that it was a line of reasoning that was open to the jury.  The Court of Appeal found not only that it was a line of reasoning open to the jury, but that it was favourable to the appellant.

BELL J:   Indeed.

GORDON J:   It is more than that, is it not?  It is a line of reasoning which was relied upon and put by the accused’s counsel at trial at page 34 of the appeal book and summarised in a summary?

MR VANDONGEN:   Yes, your Honour, and in fact if you read, as I am sure your Honours have already done, the cross‑examination of the complainant, I will not say all of it but a great bulk of the cross‑examination was directed towards the idea of establishing that the complainant had lied in the respects in which it was ultimately relied upon.

BELL J:    Yes. 

MR VANDONGEN:   Those are my submissions, if your Honours please.

BELL J:    Thank you, Mr Vandongen.  Yes, Ms Forrester.

MS FORRESTER:    Thank you, your Honours.  The respondent has provided an outline and argument, and if I can give your Honours a moment.

BELL J:    Yes, thank you, Ms Forrester.

MS FORRESTER:    Your Honours, the initial direction, which you have already been taken to at core appeal book page 35, while clearly wrong, and there is no dispute about that and what the prohibition was, needs in my submission to be taken in the context of the entirety of the two paragraphs starting at line 11 on page 35 and going down to line 33.  His Honour commenced the direction by telling the members of the jury:

it is for you to decide what significance the suggested lies in relation to the evidence of the complainant have to the issues in this case.  The fact that a person has told a lie may be a factor in your assessment of their credibility.  That is a matter for you to consider.  You may wish to take it into account in assessing whether or not the complainant is telling the truth in relation to the touching the subject of counts 1 and 2 on the indictment.

Then there is the impugned direction.  Then his Honour goes on:

So, members of the jury, if you in your deliberations think she has told a lie or you accept when she says she did tell a lie that she did so, that is a factor you may take into account when you come to assess her credibility in relation to the alleged touching ‑

So while it is no part of the respondent’s submissions that the direction was not of the nature that has been found in the Court of Appeal, the effect of it, in the respondent’s submission, is not such as to preclude the application of the proviso.

BELL J:   The President found that the direction was a direction of law, as distinct from a comment, that it was wrong and that it took away a process of reasoning, as a matter of law, and that process of reasoning was central to the defence case.  In those circumstances, Ms Forrester, the balance of the direction on page 35, it is difficult to see that it, in some way, cured those errors that his Honour crystallised in his judgment.

MS FORRESTER:   Your Honour, had it cured the error then I would not be here at all.  It is the question of whether a substantial miscarriage of justice occurred in all of the circumstances of this particular case.  While I entirely acknowledge the point that your Honour has put against me in the context of what the President found, in my submission that went to the nature of the error. 

His Honour then, at paragraph 134 – that is, the core appeal book, page 123, to which your Honours have been taken and which really is the nub of the decision in this case – is that, in the circumstances, having read all of the directions, and in my submission – perhaps I will just say this first.  Paragraph 134, there is no doubt it carries, in effect, the entirety of his Honour’s decision insofar as this appeal goes in that his Honour determined that the effect was not such as to prohibit the application of the proviso in this case.

His Honour’s summary at paragraph 132, which is core appeal book 122, to which your Honours have also been taken, is not in any way a complete summary of all of the directions in relation to credibility and reliability.  They are a summary.  But there are many, many directions in the course ‑ ‑ ‑

BELL J:   Accepting, Ms Forrester, that the trial judge gave conventional directions relating to the assessment of credibility and the like, but working on the assumption, which we must, that the jury complied with the impugned direction, what was the jury to make of the further direction, summarised at paragraph 132(d) of the President’s reasons, that, if the jury found that the complainant had told lies, they could take it into account?

MS FORRESTER:   But they could not reason that just because she had told lies that she therefore automatically could not be believed; that that was the process of reasoning that the jury were deprived of.  It would be incorrect of me not to acknowledge that it is a very binary choice in the context of this appeal.  There is either a view that it did have the effect, and it was such a significant effect that the proviso simply cannot apply in this circumstance, or it did not.  My argument therefore must necessarily be reasonably short in compass, because there are only so many times that I can put to your Honours that a fair reading of the charge could have left the jury in no doubt of the decision that they had to make in relation to count 1.

There are two other matters that I would put and that is, first of all, that the jury did clearly exercise their task in discriminating between the complainant’s evidence, as is evidenced by the fact that they came to different verdicts on counts 1 and 2, but there was supporting evidence in relation to count 1 that did not exist in relation to count 2.  Critically, in my submission ‑ ‑ ‑

BELL J:   Is that a reference to the Facebook entries?

MS FORRESTER:   There is a particular Facebook entry in relation to which the complainant gave evidence.  She gave evidence that towards the end of the communications with the appellant she asked him if he remembered the circumstances in which what effectively was the first count occurred.  Now, there is no recording of this, but there is a Facebook message saying, “Spontaneous combustion”, which confirmed a very central part of her account of the facts of count 1.  So that there was, to that extent, an acknowledgement at least of the surrounding circumstances of the acts in relation to that count.  So that was a critical feature in count 1 that was not present in any way, shape or form in relation to count 2, which was a different event.

The only other matter that I think I can usefully put to your Honours, in addition to my submissions, is that the context of a trial, of course, is always a live one, and the atmosphere cannot be discounted.  Looking back at transcript and not being part of the atmosphere is important, particularly in relation to a trial where credibility is the central issue.

The fact that counsel acting for the appellant at the time acknowledged the error and chose not to address it, in the context of a trial which by any view was robustly conducted, and was conducted in relation to the closing address being one where the central issue was the complainant’s lies, the fact that counsel did not see anything that required redirection, an experienced and competent counsel, as was put in the Court of Appeal, that is something that in my submission your Honours should and could take into account in determining the effect of that direction on this jury, or the effect of the direction in the context of the application of the proviso.

Could I move then just to one final point and that is in relation to some matters that your Honour put to the appellant, and that is that, in my submission, consistent with Weiss and all of the authorities that have followed it, it cannot even be said in the case of a credibility issue where credibility is central that the proviso may never apply.  In my submission, there is no one factor that will always require the application of the proviso.  There are many examples of this Court having made different decisions about similar issues and it depends always, as was said in Kalbasi, on the nature of the misdirection in the context of the issues that were litigated in the trial.

BELL J:   In the context of the issues at this trial where the defence case is the simple proposition that, whatever suspicions you may have, reading between the lines in the Facebook exchanges, what you are confronted with is the word of a complainant who has told a number of lies, including, in defence counsel’s submission, on oath to this jury, and in those circumstances you ought not to consider the Crown has discharged its obligation.  That was the defence case and the error took away a process of reasoning that accorded with that case.

MS FORRESTER:   And that of course is the matter that your Honours are partly called upon to determine today.  Perhaps I was not clear, but my submission relates to the more general proposition that was put to your Honours on the part of the appellant to the effect that, in a case where credibility is the central issue, it is still not the case that the proviso cannot apply.

EDELMAN J:   Your submission is basically that this is not one of those special cases where, even if it could be said by an appellate court that, despite the advantages of the jury, conviction was inevitable.  This is not a special case where, even then, one would conclude there is a substantial miscarriage of justice.

MS FORRESTER:   Yes, your Honour.  There are two limbs to the submission.  First of all, that it is not one of those fundamental breaches that will, inevitably, prevent the application but that, even if it were not one of those, it is also not the case that the effect of such direction will always be that the proviso cannot be applied.  If your Honours determine that in this particular case it had that effect then there is little more that I can add to my submissions.

BELL J:   Do I understand that your submission is that we are to understand that the Court of Appeal approached the proviso, taking into account the advantages that the jury had in seeing the complainant but having regard to the material that you say was supportive of the complainant’s account on ground 1, considering that it was open to the Court on the review of the record to be satisfied beyond reasonable doubt.  That is essentially your proposition, is it not?

MS FORRESTER:   It is, your Honour, but it is underpinned by his Honour’s finding at paragraph 134.  In the absence of his finding that the jury could not have been impacted by the impugned direction, his Honour would not then have been entitled to give what he called very significant weight to the jury’s verdict.  That is why I submit that paragraph 134 really is the nub of the matter, because if his Honour is found to be incorrect in that finding, then nothing else that follows can properly flow.

BELL J:   You resolve the tension between the finding in paragraph 134 and the earlier finding dealing with the substantive ground that the jury would have followed the erroneous direction.

MS FORRESTER:   They would have followed all of his Honour’s directions and for a jury, as opposed to a court, the significance of his Honour’s direction may not have held in the same way as it does to – perhaps I can start again.  His Honour the President found that it goes to the division between the functions of the judge and the functions of the jury and his Honour directed the jury on those things.

I am not going behind the finding that this was a direction of law in any way, shape or form and that juries are to be regarded as following the directions, but when one reads the charge as a whole, and the impugned direction was followed by as severe a Longman warning as can be found in the current system, the jury would not have been influenced in a way that precluded the defence case being properly considered by the jury.

NETTLE J:   Does the Crown, Ms Forrester, go so far as to say that, if the jury had been correctly directed and were acting rationally, they were bound to convict?

MS FORRESTER:   Yes, your Honour.

NETTLE J:   Notwithstanding that the credibility was so much in issue and that the complainant had told so many lies including one ‑ ‑ ‑

MS FORRESTER:   In my submission, that was a matter for the jury and, having convicted ‑ ‑ ‑

NETTLE J:   No, you go further than that.  You say that that jury acting rationally, had they been properly directed, would have been bound to convict notwithstanding the lies and absence of credibility.

MS FORRESTER:   It is rare, your Honour, to find a case where a jury would ever be bound to convict and I think it would be ‑ ‑ ‑

EDELMAN J:   Or would inevitably have convicted, that there was no possibility they would not have convicted.

NETTLE J:   Acting rationally and properly directed.

MS FORRESTER:   In my submission, there was an inevitability about the conviction on count 1 in the circumstances of this case.

KEANE J:    That was not the view that President Buss took at paragraph 123.

GORDON J:   It was a majority verdict, was it not?

MS FORRESTER:   On count 1, yes, your Honour.

KEANE J:   In paragraph 123, Justice Buss says:

In the present case, it was open to the jury, if they so decided, to conclude that S was a dishonest or an unreliable witness on the basis of the lies S admitted having told ‑ ‑ ‑

MS FORRESTER:   Yes, your Honour; it is always open to a jury to make those decisions because they are the ultimate arbiters of the facts.

KEANE J:   Well, if it was open to the jury to do it, then there was not any inevitability about it, was there?

MS FORRESTER:   His Honour found, at the end, that the appellant had not lost a chance of acquittal fairly open to the jury and, in my submission, his Honour, in the totality of his reasons, made that finding that the appellant was not denied a chance of acquittal on count 1.  I acknowledge, however, that he did place very significant weight on the finding of the jury.  So, again ‑ ‑ ‑

GORDON J:   It is sort of circular, is it not?

MS FORRESTER:   It can be, your Honour, and that is part of the difficulty that I had in answering his Honour’s question.

BELL J:   Yes.

MS FORRESTER:   But I do not mean prevaricate in that way.  The State does say that the totality of the findings of the President indicated that the proviso was properly applied.  Unless I can assist your Honours further.

BELL J:   Thank you, Ms Forrester.  Anything in reply, Mr Vandongen?

MR VANDONGEN:   No, thank you, your Honours.

BELL J:   Yes, very well.  The Court will reserve its decision in this matter.  Adjourn the Court until 9.30 am tomorrow in Sydney.

AT 10.24 AM THE MATTER WAS ADJOURNED