R v May

[2012] HCATrans 358

[2012] HCATrans 358

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S176 of 2012

B e t w e e n -

THE QUEEN

Applicant

and

SCOTT ALAN MAY

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2012, AT 10.12 AM

Copyright in the High Court of Australia

MR L.A. BABB, SC:   If the Court pleases, I appear with my learned friend, MS T.L. SMITH, in this matter.  (instructed by Director of Public Prosecutions (NSW))

MR T.A. GAME, SC:   If the Court pleases, I appear with my learned friend, MR D.P. BARROW, for the respondent.  (instructed by The Law Practice)

FRENCH CJ:   Yes, Mr Babb.

MR BABB:   Thank you, your Honours.  Your Honours, it is my submission that it is in the interests of the administration of justice generally and in the particular circumstances of this case that special leave be granted.  This is a matter where a unanimous verdict of guilty of a jury was overturned by a majority verdict two to one with the Chief Justice in dissent.

FRENCH CJ:   Well, that is not much of a criterion.

MR BABB:   No, your Honours, but the verdict of acquittal was arrived at by the majority by omitting a large and significant body of evidence in the assessment of whether there was an unreasonable verdict.

FRENCH CJ:   Did not Justice Simpson incorporate by reference the review that Chief Justice Bathurst had undertaken in his judgment?

MR BABB:   With respect, not, your Honours.  If you go to paragraph 404 of the judgment at appeal book 193, the other material that her Honour took into account is summarised in total between paragraph 404 and paragraph 415 and your Honours ‑ ‑ ‑

KIEFEL J:   But her Honour referred back to the larger survey of evidence by the Chief Justice.

FRENCH CJ:   At paragraph 344 on page 177.

MR BABB:   She did, but when one looks at paragraph 415 you can see, “Notwithstanding these various items of evidence”, and that is a reference back to only those matters referred to between paragraphs 404 and 415.  They are the sum total of the additional evidence that her Honour took into account as possibly supporting Burnes on his assertion that the respondent was involved in the murder.

KIEFEL J:   Well, her Honour focused upon Burnes’ evidence because he was critical to the prosecution case.  He was the only evidence which directly - of the joint enterprise, was he not?

MR BABB:   He was the only evidence directly of the shooting and the joint criminal enterprise.  However, what her Honour has omitted is significant evidence both before and immediately after and the significance of ‑ ‑ ‑

FRENCH CJ:   Just before we go to that – and you will take us to that in a minute – but you accept that the Chief Justice himself at paragraph 62 characterised Mr Burnes as the critical witness?

MR BABB:   Yes, your Honour, there is no doubt about that.  He was central in that on his version there were only the three of them present at Callan Park when the shooting occurred.  However, looked at in its proper context, we have the mobile phone evidence that was relied on by the Crown at the trial that was strongly supportive of Mr Burnes’ version that he had been together with the respondent and that they had picked up the deceased from Leichhardt market town.  The last phone call that was made by the deceased was made to the respondent at 9.45, about 30 minutes before the murder took place, and that was made from the Leichhardt area and received somewhere in the Leichhardt area.

That was important to the question of whether the respondent was involved in the murder because the respondent made a statement to police saying that he was to meet the deceased at Leichhardt market town but said that the meeting never took place.  He said that he went home at 9.15 and remained at home all night and through the early hours of the morning and that was demonstrably false on the evidence and was a false alibi created by the respondent, another thing that her Honour did not refer to in her assessment of the evidence. 

We know that was demonstrably false because firstly Rafferty, who was the person on the Crown case who was to take over the drug distribution immediately after the obtaining of the telephones, said that he met with the respondent that night and received two drug phones and the personal mobile phone of ‑ ‑ ‑

FRENCH CJ:   All the equipment necessary to set up the new business, is that what you are saying?

MR BABB:   Yes, and Mr Rafferty is not mentioned in the evidence assessment done by her Honour Justice Simpson.  He does not get a guernsey even though at the appeal, as the Chief Justice notes, the appellant had said that he was crucial to an assessment of the Crown case, and he was.  He gave evidence before the Police Integrity Commission that he had met with the respondent, had received the three phones and was told, “You’re in business from tomorrow”, and that he then met with the former drug dealer who was employed by the deceased and handed one of the drug phones to him.

Again, that person, referred to as DN within the evidence, was not referred to by Justice Simpson in his full role.  What Justice Simpson referred to in relation to DN is only at paragraph 350 in her summary of the background and it is informative because it shows how far off the mark the assessment of the evidence was by the majority.  There the only reference that is in the judgment to DN is his evidence that there was a dispute between the respondent and the deceased concerning the control of the business prior to the night, but her Honour says that:

From the evidence of DN, it would appear that this dispute was resolved.

Now, it was quite the opposite, in fact.  Your Honours will see there is a chronology that was attached by the Chief Justice and that is at 198 of the appeal book, and those mobile phone records were key because they show the true nature of what was happening.  There was mobile phone communication between the respondent and Rafferty leading up to the murder, and Rafferty and DN.  The last person that the deceased calls at 9.45 is the respondent, and the first person that the respondent calls after the time that the murder has occurred is Rafferty. 

Rafferty is then in constant contact with DN in order to organise a meeting with DN, and we know that that meeting took place because DN gave evidence of the meeting and DN’s partner gave evidence of the meeting where, firstly, the phone that had that very day been in the possession of the deceased and DN, DN having given it back to the deceased, is passed by Rafferty to DN and they discuss the heroin distribution.

Now, you can see from looking at paragraph 350 that her Honour Justice Simpson has failed to appreciate the significance of the evidence of the transfer of the phones and the taking over of the drug business and has somehow come to the conclusion that DN’s evidence makes it appear that this dispute was resolved.  In fact, DN’s evidence combined with Rafferty’s evidence shows that the resolution was through the involvement of the respondent in the murder of the deceased.

FRENCH CJ:   So the critical piece of evidence that you say is overlooked is the transactions from which the inference could be drawn that there was a handover of the business arrangements which was entirely then consistent with, as it were, the elimination of the deceased?

MR BABB:   That is the critical material after the death and the other important material predates the death, and that is the last phone call of the deceased being to the respondent half an hour before the murder, and the fact that the mobile phone calls were in the vicinity of Leichhardt market town which is the location that Burnes says he, together with the respondent - they picked up the deceased from Leichhardt market town, and the false alibi.  They are the three really crucial blocks of evidence, informed by a number of sources:  the taking over of the business supported by the mobile phone records, an independent confirmation, but also the direct evidence of Rafferty and DN.  So it is those three areas ‑ ‑ ‑

FRENCH CJ:   These things you say overcome the inherent difficulties in Burnes’ evidence identified by Justice Simpson?

MR BABB:   Your Honours, as the Chief Justice found, when you look at the totality of the evidence, you could not find that it was an unreasonable verdict.  I do not downplay the difficulties with Burnes’ evidence, but the Chief Justice fully considered all the evidence and his appreciation – his determination that it was not unreasonable, with respect, was the correct one, and when you look at Justice Simpson’s analysis she just has not come to terms with the evidence and has not included it.  It is not just a matter of, “I’ve read and incorporate everything that the Chief Justice has said about the facts”.  Looking at ‑ ‑ ‑

KIEFEL J:   But the Chief Justice took a different view of the evidence relating to Burnes, did he not?  He set out the evidence but it must be, must it not, because of the critical nature of his evidence, that he took a different view about the reliability of some of his evidence?

MR BABB:   The way I would put it, your Honour, is that he correctly took account of all the supporting evidence in order to find that you could not find it was unreasonable to accept Burnes, and the significance is taking into account all the evidence in support.  When we look at what her Honour has done, it is just clear from paragraphs 404 onwards, and her Honour says:

As I have indicated, I find it quite impossible to conceive that a conviction could be upheld on Burnes’ uncorroborated evidence alone.

The Crown, however, relied on some disparate items of evidence that provided some support for Burnes’ account.

Only six things are mentioned there.  The six things that are mentioned, with the exception of a reference to the statement of the respondent that he was to meet the deceased at market town, which is at paragraph 412, they are things that - of all the things that you would mention in terms of those matters that supported Mr Burnes, they are extraordinary that you do not mention Rafferty, you do not mention DN, you do not mention the false alibi, you do not mention the fact that the deceased’s last phone call was to the respondent.  Those are the matters that link the respondent to the murder. 

However, when you look at what is referred to by her Honour, the first one:  New Year’s Eve and a gun and the fact that the respondent went to the emergency room - it was a peripheral matter that only went to support him in that he said that the respondent had had a cut lip and said he was going to hospital and there were records to support that.  Winfield Blue, the Gameboy, the fact that a Gameboy was pawned - they are all matters going only to Burnes’ involvement in the matter.

What her Honour has not grappled with is the evidence going to the respondent’s involvement in the matter and even where her Honour does come to a significant feature, that is, the respondent’s statement that he was to meet the deceased at Leichhardt market town, that in isolation – she there qualifies it by saying, “But it was to have been an hour earlier and he said he went home at 9.15”.  By leaving out consideration of the mobile phone calls and which cell towers they went to, and the later evidence of Rafferty that he met up with the respondent, so the respondent must have been lying about being at home all night, the true significance of that material has not been taken into account.

FRENCH CJ:   You are pitching this as a visitation case, are you not?  It is not a question of principle which emerges from it in relation to this ground.

MR BABB:   Not in relation to this ground.  This ground is very much – the grant of leave on this ground would be in relation to the interests of the administration of justice in the particular case, but also for the State where you have a majority decision overturning a unanimous verdict of the jury without reference to the relevant ‑ ‑ ‑

FRENCH CJ:   I am sorry; I cannot understand the significance of the fact that it is a majority decision of a Full Court and a unanimous verdict of a jury.  These are chalk and cheese, in a sense.

MR BABB:   They are, but ‑ ‑ ‑

FRENCH CJ:   I do not think it adds anything to your argument except a rather empty rhetorical flourish, if I may say so.

MR BABB:   Thank you, I will move on.  The only significance though, your Honour, is the lack of reference in the majority judgment to significant pieces of the evidence which one would have expected to have been fully canvassed. 

FRENCH CJ:   Yes.

MR BABB:   However, in relation to the other two grounds, there are matters of – there are four grounds but really it is grounds 1 and 2 that I would submit there are matters of general principle ‑ ‑ ‑

FRENCH CJ:   Well, if you do not get leave on this ground, there is no room for the other ground.

MR BABB:   That I would have to accept is correct, your Honour, and the matters of general principle in the other grounds perhaps if I was not coming with this first ground may not get leave in and of themselves, but they are significant matters.  The first one in relation to directions on joint criminal enterprise and the fact there was a reference to a different crime, we say when looked at in the context of this case, a case that very much turned on firstly the proposition that Burnes did not commit the murder, that he falsely confessed and was sentenced for a murder he did not commit and alternatively the respondent was not present when he committed the murder, the focus of the jury never deviated from questions of whether the crime of murder was agreed to and whether the possibility of a shooting without signal was within the contemplation of the respondent.  Your Honours, in terms of the directions, that was made abundantly clear.  The directions are at 136 of the application book.

FRENCH CJ:   That is the written directions, yes.

MR BABB:   Written and oral, your Honour.

FRENCH CJ:   Oral follow, I think.

MR BABB:   The written directions, the Full Appeal Court found no error in – I withdraw that.  In relation to the written directions, the difficulty that the Chief Justice found - and there was an agreement from Justice Simpson - is at [49] on page 137.  It is the reference to “a different agreement, or a different crime”. 

There was much discussion, your Honours, about extended joint criminal enterprise versus joint criminal enterprise in the appeal, and also the discussion about whether the agreement was sufficient.  It was in that context that too much emphasis has been placed on reference to a different agreement.  His Honour the Chief Justice at paragraph [51] - what he said was there no problem with the direction.  It is clear that that sets out the

context of exactly what the jury needed to consider in terms of what was the agreement and what was in contemplation.

It was within the context of a discussion on appeal of my learned friend’s submission on behalf of the appellant that a contingent agreement could not be sufficient to establish the joint criminal enterprise and it has shifted the focus, in my submission, and that is a matter of general principle and general consideration there.

FRENCH CJ:   Mr Babb, I think your time is up, thank you.

MR BABB:   Thank you, your Honour.

FRENCH CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  If you granted special leave in this case you will be flying in the face of the Court decision of this Court in Benz.  A visitation case does not answer the criteria in respect of a Crown appeal against acquittal and in Benz – perhaps if your Honours could go to it at 168 CLR – one looks at that which the Chief Justice says at – and this is really high authority going back to Wilkes that a case has to raise a matter of sufficient public importance and it is described in Wilkes. 

We see in Justice Deane’s judgment then at 120 citing Justice Dixon’s judgment in Wilkes “an exceptional discretionary power”.  We see in Justice Dawson’s judgment at 131 bringing together the exceptional nature of the issue to be raised – leading over to 132 – and the matter of public importance – that is 132.  Then at 146 Justices Gaudron and McHugh refer to it as truly “exceptional circumstances”.

Now, all that is at issue in this case in respect of the unsafe verdict is a difference of opinion about the analyses conducted in the court.  Can I mention this, your Honours, though, that if there were ever a case of double jeopardy, if not triple jeopardy, this is such a case.  The appellant was not arrested until September 2006.  He was discharged after committal, so was at his liberty again – committal in September 2007 after Burnes gave evidence.  There was an ex officio indictment, so he was in custody after the ex officio - went back into custody.  He is in custody.  The appeal was heard in October 2011.  The judgment was delivered in May 2012 and he has been at liberty since then.

So if you granted the Crown leave and you heard the appeal and you upheld the appeal, it would have to go back to the Court of Criminal Appeal on the Crown’s case for a further hearing.  So this case could only be described as a truly exceptional one and what is being put is a difference of opinion as to how the issue of Burnes was dealt with. 

Now, in respect of that issue – and if anybody has a special leave point, it is us in relation to the contingent agreement point, but we say you just do not get there.  The Crown is saying it is a visitation case.  We say that puts them out of court to start with, and it would be flying in the face of those cases – Wilkes, Benz – to do so.

The analysis of the Chief Justice – first of all it has to be understood that Justice Simpson was taking up where the Chief Justice had left off.  That much is apparent from her judgment.  When she said that there was no other evidence to support the meeting between May and Burnes, meeting with the deceased, request to kill, circumstances of the killing, that is all correct.

In old language, Burnes was at least a Davies‑type accomplice, a Bromley‑type witness who would draw a warning as a schizophrenic psychotic who gave a series of inconsistent accounts, some wholly exculpatory of Mr May and some that he gave a signal not to shoot, not a signal to shoot.  We say about that, if I can just raise it, if you give a signal not to shoot, that is a contingency where you are not giving your agreement.  It is a different kind of contingency, and that is the question of principle we wanted to get at, but the Chief Justice resolved the issue on the substance of the directions given and that in itself is not a special leave point. 

So when you look at the Chief Justice’s judgment about Mr Burnes, one sees – can I just take your Honours, for example, to page 173 at the top of the page:

depended to a very great extent on an assessment of his demeanour in the witness box.

Likewise at 334, depended very much on the assessment and:

the advantage of the jury in seeing and hearing the witnesses –

That is in the middle at about line 42.  Now, on the basis of Justice Simpson’s deep analysis of Burnes’ evidence and the different accounts and what you can draw from them, the idea of Burnes’ demeanour having anything to do with this case completely goes out the window ‑ ‑ ‑

KIEFEL J:   Are you saying what was required here by the jury was the stringent analysis that Justice Simpson undertook, particularly in the circumstance where the cross‑examination, although very thorough, was regarded by the appellate judges as being difficult to follow, at the very least for the jury.

MR GAME:   That is the point she was trying to make, that there were so many different things he was being cross‑examined on because he had given accounts in different police statements, induced statements, committal, before Justice Fullerton, in tapes…..so it must have been an excruciating task for the cross‑examiner.  But we have listed in our submissions ‑ ‑ ‑

KIEFEL J:   Even harder for the jury to follow.

MR GAME:   ‑ ‑ ‑ all the things he actually did accept.  So the approach of Justice Simpson makes sense when you understand that what she is doing in chambers is trying to work out from questions put what the responses mean, and we have set out what the actual concessions amount to.  So there is nothing but a conventional analysis of that.  When it comes to the “for example” at the end, the “for example” is actually a “for example” that is touching on this issue, and the Crown makes a big play about the “for example”, but the “for example” is about how far does the Crown get to those crucial issues of the meeting, the request to – the signal, the circumstances of the actual killing, and the business about the phone records.

The fact that her Honour has actually dealt with the respondent’s own statement to the police shows that she is fully aware that there is evidence that puts them close together at the time.  She is actually addressing a part of it.  So one has to give her the credit of appreciating where her own reasoning was taking her.  So what one sees then is two different approaches to the assessment.  One is Chief Justice Bathurst sets out the circumstances that says some things about Burnes’ evidence but does not do the analysis that Justice Simpson does, but relies on demeanour.  Then her Honour takes up from there and then analyses Burnes’ evidence closely. 

What one concludes about that is the conclusion drawn from her examination of the whole of the evidence.  So the idea that the Court would then take the case in order to review that is an unlikely vehicle for – it is an unlikely and inappropriate case for special leave.  So that is where we say the – and your Honours have obviously seen it, but her Honour does quite a devastating examination of the course of the interviews and accounts and the inconsistencies in them.

FRENCH CJ:   What is the content of a liberal or flexible approach?

MR GAME:   Well, your Honour, all her Honour is saying – I know that is ‑ ‑ ‑

FRENCH CJ:   At paragraph 368.

MR GAME:   If you then go over to paragraph 384, that is explaining what her Honour is doing.  So what her Honour is doing is trying to work out what it is that all the different subjects are that this man is being questioned about, and there is nothing in it, because what was being put was correct.  It was from records, the judge had it, the defence counsel had it, the prosecutor had it; they were aware of what was being done in the cross‑examination.  So that is all that means.  It is no more than a comment about what her Honour is doing in respect of analysing his evidence.  So that is not a special leave point either, and it would not be unless she actually did some other different kind of analysis, but she has properly analysed his evidence, and quite deeply.

KIEFEL J:   Is her Honour really saying there that she is taking his evidence at its highest for the prosecution?

MR GAME:   What her Honour is doing I think is when she says, for example, assumed, because she is reviewing the material she has had to put herself in the position of working out what the dynamic was in the situation.  But she is not doing anything outside the record.  So when he says “But didn’t you say to him in the phone conversation” or “Didn’t you say to Justice Fullerton” and then he would make a concession, I think that she is actually talking about how she analysed that process.

KIEFEL J:   I see.

MR GAME:   As I said, we set out the fact that the questions were accepted - in our submissions we have set out all the acceptances by him of propositions.  So if the Crown could make it work by showing that she had adopted some different unconventional approach, then maybe there would be something there, but there is no question of principle involved in that sentence.

FRENCH CJ:   She is assuming the factual correctness of the premises upon which certain questions were being put to Burnes, that is to say, that they were based upon medical records, but that is an assumption about things which were not in evidence, is it not?

MR GAME:   No, but, your Honour, the point is that the question is put – that is not a problem because what she is saying is – she also mentions that the Crown Prosecutor was assiduous to take objections if it was not supported by material.

FRENCH CJ:   Yes, but this is material that is not before the jury.

MR GAME:   No, but what is happening is she might pick up some records and then cross‑examine on them…..counsel and then there are a series of questions.  She is just making a perfectly sound assumption that counsel has a basis to put his submissions.  But as I say, it would go somewhere if there were rejections of the questions and there was no substance to it.  But it does not go anywhere because there were acceptances, as we have set out in our submissions.  Her Honour really did not even need to say that because that is just a perfectly logical way to go about analysing a record.

Now, as your Honours have also appreciated, the Crown cannot get to the joint criminal enterprise issue unless they get past the acquittal and you would not grant special leave to allow them to get to argue about the joint criminal enterprise.  But I will just take your Honours to the relevant parts of the judgment of the Chief Justice.  At application book 151, paragraphs 267 to 269 are explaining why there are deep problems with directions in writing taken with the oral directions where they talk about “a different agreement or a different crime”, previous agreement being contemplated, where that is not identified. 

The reference to an agreement to kill is given as a “for example”, you will see at paragraph [51].  But we had a deeper point that we were arguing as well, but we argued this and that is what we succeeded on.  As I say, we submit you would not grant leave for them to get to argue about that issue.  But then if you just go back to page 149, you can see what the picture is that we were seeking to get to.  It is paragraph 263 where – we will have to go back to 142, I am afraid.

FRENCH CJ:   This is page 142?

MR GAME:   Page 142, paragraph ‑ ‑ ‑

FRENCH CJ:   Paragraph 249?

MR GAME:   Yes, sorry about that, paragraphs 248 and following.  The point is this, at paragraph 248 it is said that:

the appellant and Mr Burnes had agreed that the deceased would be killed on a signal but not satisfied that the signal was given.

Now, I am not meaning to be excessively critical, but the correct way of saying it is not that “not satisfied that the signal was given”, but satisfied that it was indicated that the not to shoot signal was given.  So you have got to actually feed that into it.  So the contingent thing becomes – we accept that you could have an agreement that is contingent on circumstances that may or may not arise, but a different problem arises altogether where the

contingency is your assent, and that is the deeper issue that arises in this case, and that is the deeper issue that has not been resolved by the cases.

The one case that is referred to at 241, Mills - I am not quite sure how Mills came into it, but Mills has nothing to do with the situation.  So that is putting our position – sorry, the other issue is that the Chief Justice dismissed our ground about failing to leave manslaughter and we say that if you have got an extended joint criminal enterprise case or anything like it, you are going to have a foresight of something less or you are going to have a lesser agreement. 

We would say you would inevitably be dragged into manslaughter, but again that is just – we are not inviting your Honours into that but if the Crown got leave we would have to put on notices of contention in relation at least to this contingent agreement question and the manslaughter question.  So if one just goes back, a difference of opinion and a difference of approach in relation to the unsafe does not satisfy section 35A of the Judiciary Act except for the catch‑all at the end.  That is not, according to the authorities, the kind of case that you would grant in respect of an acquittal.  That is the end of the case, we say.

Questions of principle you do not get to.  If you did grant special leave, you would not grant it on more than the acquittal retrial question.  You would actually limit the Crown to that one issue.  That is how we would put it.

FRENCH CJ:   Thank you, Mr Game.  Yes, Mr Babb.

MR BABB:   Just briefly, your Honours, the liberal, flexible approach is clearly a reference to her Honour not only taking into account material that was not before the jury, but assuming and accepting that that material was accurately recorded and using it in that way, and you can see that firstly at page 183 where her Honour refers to the liberal and flexible approach and gives the example at the end of paragraph 368.  So it was not a matter of taking the Crown case at the highest.  It was the opposite.

Then if you go, your Honours, to page 187 in the appeal book there is an example of that.  This is an example where Burnes denied that he had made statements to a psychiatrist and at paragraph 383 her Honour was prepared to act on the basis that the psychiatric records – these are records not produced in evidence; this is only a reference back to questioning - where the propositions put were denied she was prepared to act on the basis that the records contained that material and use that in a liberal or flexible approach.  That is an approach that is a matter of grave concern and one in which special leave is required to ensure that such an approach does not occur in future matters.

KIEFEL J:   Do you dispute the concessions that the respondent lists that are arrived at from evidence?

MR BABB:   No, your Honour, and of course as a matter of evidence where he concedes that what is put to him is correct, then that goes in as evidence.  The legal or flexible approach was only where he denied that he had made particular statements and that has a whole series of problems.  Not only normally would one expect consideration of the record, but also the reliability of the record before one would act on it as a reliable account.  That is all I wish to say in reply, thank you.

FRENCH CJ:   Yes, thank you, Mr Babb.  The Court will adjourn briefly to consider what course it should take.

AT 10.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.58 AM:

FRENCH CJ:   The applicant seeks special leave to appeal from the decision of the New South Wales Court of Criminal Appeal allowing the respondent’s appeal against his conviction for murder, quashing that conviction and, by majority, directing the entry of a verdict of acquittal.  The majority held that the verdict of the jury was unreasonable and unsupported by the evidence. 

The applicant focuses upon alleged inadequacies in the consideration of the evidence by the majority judges.  That ground of the application, which is critical to its success, overall discloses no error warranting the grant of special leave.  The review of the evidence by the majority judges incorporated, by reference, the detailed account of it in the judgment of the Chief Justice.  The case does not present the circumstances which would warrant the grant of special leave to appeal against a judgment of acquittal in the Court of Appeal having regard to what was said in R v Benz (1989) 168 CLR 110. We would not endorse what was described in the judgment of Simpson J as a “liberal, flexible, approach” to the assumptions underpinning questions put to the witness, Burnes, but it is not demonstrated that that approach was sufficiently important to the outcome to support a grant of special leave on the question of principle. Special leave will be refused.

MR GAME:   If the Court pleases, may I make an application for costs.  In Benz the court ordered costs and this is one situation where - from an acquittal in an exceptional circumstance.  There is no fixed practice about it and it is entirely a matter of the Court’s discretion, but we say this is such a case.

FRENCH CJ:   Mr Babb, what do you say about that?

MR BABB:   I do not wish to be heard.  In the Court of Criminal Appeal costs cannot be awarded and that is a matter for the Court.

FRENCH CJ:   We are of the view that no order for costs should be made.

The Court will now adjourn to reconstitute.

AT 11.00 AM THE MATTER WAS CONCLUDED