Reed v The Queen

[1991] HCATrans 136

~,~KIT1Ul.1A"li' ·~))---~ ....

--

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M39 of 1989

B e t w e e n -

PETER MICHAEL REED

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

DEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 6 JUNE 1991, AT 11.28 AM

Copyright in the High Court of Australia

Reed 1 6/6/91

MR D. GRACE: If the Court pleases, I appear on behalf of

the applicant. (instructed by Grace & Macgregor)

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

my learned friend, MR N.T. ROBINSON, in this

matter. (instructed by the Director of Public

Prosecutions)

MASON CJ:	Mr Grace.
MR GRACE:	If the Court pleases. The summary of arguments

previously filed are relied upon by the applicant,

together with the following further submissions.

Firstly, in relation to severance, it is

submitted that the presentment rules have been

incorrectly applied in the circumstances of this

case in that the shooting charges, the subject of the joinder, were not severed. Alternatively, if

the rules were correctly applied, there was a

misexercise of discretion in not severing the

charges by reason of a substantial risk of
impermissible prejudice. In any event, it is
submitted that a miscarriage of justice has

occurred because the applicant has been denied a

fair trial in relation to the shooting charges.

The applicable provisions are contained in the Sixth Schedule, rule 2, of the Crimes Act and

section 372 of the same Act. Those applicable

provisions are set out on page 13 of the

application book. Rule 2 of the Sixth Schedule

reads as follows:

Charges for any offences may be joined in the

same presentment if those charges are founded

on the same facts or form or are part of a

series of offences of the same or a similar

character.

The circumstances of this case place the first

limb of that particular rule in contention.

The alternative argument is that if the

joinder was proper, that in the exercise of the
learned trial judge's discretion pursuant to

section 372(3), the charges ought to have been

severed.

The basis of the finding by the learned trial

judge and the Court of Criminal Appeal was that the

charges were correctly joined because they had a

common factual origin, namely, a consciousness of

guilt shown by the shooting counts in relation to

the bombing counts and a deep hatred of police as

shown by the shooting counts and bombing counts.

The test that was applied was the test enunciated

Reed 2 6/6/91

by His Lordship, Lord Justice Shaw, in Reg v

Barrell and Wilson, (1979) 69 Cr App R 250.

That case was a situation where the accused

had been charged with affray and assault. In the

course of being on bail waiting for trial, one of
the accused attempted to pervert the course of

justice by attempting to corrupt one of the Crown

witnesses. The charge of attempting to pervert the

course of justice was joined on the same

presentment as the assault and the affray charges

and the accused was duly convicted.

At page 252 of the report, the second paragraph on the bottom of the page,

Lord Justice Shaw says this:

Mr Jubb, on behalf of Wilson, submitted

that count 3, far from being founded on the

same facts as count 1 -

that is the attempting to pervert the course of

justice count -

derived from a new and different set of facts

which was not only different in its nature but

separated by a substantial interval of time

from the set of facts which gave rise to

counts 1 and 2. He contended that to justify

a joinder within the terms of section 4 and

rule 9 the subsidiary offence must (to use
counsel's terminology) be an integral part of
the primary offences and must not be separated

from them by any distance in time.

This contention rests on too narrow a

construction of the language of the statute

and the relevant rule. The phrase "founded on

the same facts" does not mean that for charges
to be properly joined in the same indictment,

the facts in relation to the respective

charges must be identical in substance or

virtually contemporaneous. The test is

whether the charges have a common factual

origin. If the charge described by counsel as

the subsidiary charge is one that could not

have been alleged but for the facts which give

rise to what he called the primary charge,

then it is true to say for the purposes of

rule 9 that those charges are founded, that is

to say have their origin, in the same facts

and can legitimately be joined in the same

indictment.

Rule 9, in terms, is identical to presentment

rule 2 in the Crimes Act.

Reed 3 6/6/91

The correctness of that test is not

challenged. However, the application of it to the

circumstances of this case is.

DEANE J:	Mr Grace, the Court of Criminal Appeal made an assumption in your client's favour which is not
quite apparent to me.  Why was not evidence of your
client's earlier criminal activities admissible to
explain the alleged violence of his reaction when
faced with arrest?
MR GRACE:	Because that was an issue of fact that was to be determined by the jury, and in the final analysis,
the jury decided - - -

DEANE J: But if somebody shoots a policeman who has come to

arrest him, is it not admissible to prove that half

an hour before he has murdered somebody down the

road?

MR GRACE: Well, that may well be, Your Honour.

DEANE J: Well then, in this case, if your client was guilty

of one or more of the earlier criminal offences
alleged against him, why was not evidence of that

guilt admissible, on the question whether he had

deliberately shot a policeman who had come to

arrest him, to explain that action?

MR GRACE:  If I could answer that in two parts, Your Honour:

firstly, it perhaps begs the question to put the

issue of facts in relation to the bombing counts in

the way of the shooting counts. It presumes, if

Your Honour's conclusion is correct, that the jury

may consider the bad character shown by the bombing

counts as evidence to prove the shooting counts.

DEANE J:  No, not the bad character but a motive to

strenuously resist apprehension.

MR GRACE:  Certainly. I have no quarrel with that

particular argument, Your Honour.

DEANE J: Well then, if that is right, was not the evidence

of your client's earlier criminal activities

admissible to explain the shooting of the policeman

subsequently?

MR GRACE:  It may well have been admissible, Your Honour,

except that the charges ought not to have been

joined on the same presentment. The charges could

have been heard separately and - - -

DEANE J: But if it was admissible - and I am just directing

my question to this first legal point - you have

the evidence of the earlier crimes admissible on

the shooting, and the evidence of the shooting

Reed 4 6/6/91

admissible on the earlier crimes. Why would not

that come within the words of the schedule?

MR GRACE:	Because it is submitted that in the exercise of the learned trial judge's discretion - - -
DEANE J:	I follow the discretionary argument but I thought

you were also putting it as a matter of not within

the - - -

MR GRACE: Well, it is technically admissible, with respect,

Your Honour. But in the exercise of a discretion

as to prejudice, it would be excluded.

DEANE J:	I follow that.
BRENNAN J:	I am not sure that I follow that quite so

readily. If the counts had been separated or the

trial had been separated and your client was

presented on the shooting counts, why would the

Crown not have been entitled simply to adduce the

evidence of what had happened earlier and why would

that not have been quite admissible and not

properly to be rejected in the exercise of a

judicial discretion?

MR GRACE:  The shooting counts were heard subsequent to the

bombing counts, Your Honour.

BRENNAN J: Well, whether before or after. Let us assume,

before.

MR GRACE:  Yes. Well, the complaint is that the evidence in

relation to the bombing counts prejudiced a fair
trial of the applicant in relation to the shooting

counts.

BRENNAN J: But the question is why do you say that?

MR GRACE:  Because much of the evidence led in relation to

the bombing counts would not have been admissible

because its prejudicial effect would have far

outweighed its probative value, even if admissible

on the matters raised by His Honour

Mr Justice Deane in the exercise of the judge's

discretion.

I have compiled a list of the evidence which

it is said was led in support of the bombing counts

which would have been prejudicial to a fair trial

of the applicant on the shooting counts and I

provide that list to the Court and perhaps I could

refer to that at this stage.

MASON CJ: Yes.

Reed	6/6/91
MR GRACE:	A perusal of those matters, in my submission,

would make it clear that a large number of those

matters, even if they were admissible, would have
been excised from any shooting trial in the

exercise of the judge's discretion. If I could

specifically refer to point 2:

Evidence of Police surveillance of the

Applicant, and of the fact that he was on

parole.

That was a crucial aspect in relation to the

bombing trial. It certainly suggested that the

applicant was a man who had prior criminal
convictions but it was relevant to the timing of
the applicant's presence at the Haros Avenue

address and the fact that he, in fact, had reported

on parole that morning to his parole officer,

Handerside and that was a significant matter in the

defence of the applicant on the bombing counts but

certainly would not have been adduced by the

applicant - would not have been able to be adduced

by the Crown on any trial of the shooting counts.

Turning back to the principle enunciated in

Barrell and Wilson, it is submitted that in this

case it was not a case where the shooting charges

could not have been alleged in a separate

presentment but for the facts which gave rise to

the bombing charges. They were separate and

distinct charges and the accused was charged alone

with the shooting charges. None of the other

accused on the presentment were charged with those

offences.

It could not be said that the charges had

their origin in the same set of evidentiary facts,

particularly so when the alleged facts were

ambiguous, equivocal and possibly tenuous as to

consciousness of guilt and motive. Those facts

that were alleged to have been common were not

essential to proof of the bombing charges or,

indeed, either set of charges.

In Reg v Danes and Taylor, a decision of the

Court of Criminal Appeal in Queensland, (1965)

Qd R 338:

Danes and Taylor were charged in the same

indictment with unlawfully and indecently

assaulting a female.

The same female was involved.

The two alleged offences occurred on the same

night but were separated in distance by

Reed 6 6/6/91

several miles and in time by an hour to an

hour and a half.

It was held:

that, bearing in mind the separation in
distance and the difference in time, the

relevant facts out of which the offence by

Danes arose were not substantially the same as

those out of which the offence by Taylor

arose. Accordingly, the accused should not

have been jointly indicted, and the indictment
and convictions should be quashed.

Now, it is true that that case was dealing

with a difference provision, this time appearing in
the Criminal Code of Queensland, where it is

stated:

That any number of persons charged with committing different or separate offences

arising substantially out of the same facts or out of closely related facts may be charged in

the same indictment.

But it is submitted that the principle of the

sameness of facts must be established in a much

more stronger way than was evidenced in the case

before the Court today.

In Reg v Leslie, (1989) 39 A Crim R 105, again

a decision of the Court of Criminal Appeal,

Queensland, there the court considered the previous

decisions, including Danes and Taylor, and at

page 107, the last paragraph on that page, after

referring to some reasoning that had been referred

to in the judgment of His Honour Mr Justice Hart in

Danes and Taylor, said this:

In Russell, Szann and Patterson (No 2)

counsel for the appellants sought to carry

that reasoning to an apparently logical

conclusion in a case in which it was alleged
that three men acting in concert had in

succession raped a woman at the same place.

They were jointly indicted and were convicted.

On appeal it was argued that the joinder was

not authorised under s 586(6). The judgment

was given by Gibbs J, with whom the other

members of the court, one of whom was

Jeffriess J, agreed. The initial passage in

the judgment (at 337) was this:

"The facts out of which an offence arises

within the meaning of the subsection are the

facts which the Crown must prove to obtain a

conviction - that is, the facta probanda - and

Reed 7 6/6/91

do not include all the evidence admissible to

prove the offence. This was the view taken in

Danes and Taylor and I respectfully agree with

it.

At the bottom of page 108, the last line,

His Honour Mr Justice Kneipp said this:

The result of those authorities appears to be

that in general a joinder will be authorised

if there is at least one common factum

probans, or if there is a concurrence of a

substantial number of circumstances even

though there might not, strictly speaking, be

any common factum probans.

If the Court were of the view that the

evidence on the bombing counts was not admissible

on the shooting counts, whether it be by way of

strict admissibility or by way of exercise of a

discretion, it is submitted that the joinder would

have been unjustified.

Cross-admissibility of evidence is essential to justify joinder in cases where it is alleged

that charges have a common factual origin, as in

this case. In Reg v Kray, (1970) 1 QB 125, at

page 130, His Lordship Lord Justice Widgery

considered the principles applicable to joinder

where charges alleged to be of a similar character

are alleged. Now, that is slightly different to

the fact situation here because it is alleged that the charges here have the same factual origin. At

the bottom of page 130, His Lordship said this, at

paragraph H:

On the other hand, offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists

between them. Such nexus is certainly

established if the offences are so connected

that evidence of one would be admissible on

the trial of the other, but it is clear that

the rule is not restricted to such cases.

And then later, at paragraph D, on page 131,

His Lordship said this:

It is not desirable, in the view of this

court, that rule 3 should be given an unduly

restricted meaning, since any risk of

injustice can be avoided by the exercise of

the judge's discretion to sever the
indictment. All that is necessary to satisfy

the rule is that the offences should exhibit

such similar features as to establish a prima

Reed 8 6/6/91

facie case that they can properly and
conveniently be tried together.

An extension of the proposition enunciated by His Lordship in Kray's case is justified in

submission, that the word "same" is stronger and

relation to the first limb of rule 2 in this case.

connotes more likeness than the word "similar" and

thus more stringent rules ought to apply. This, in

my respectful submission, also accords with common

sense.

There is a dearth of authority on this issue in so far as cases relating to the first limb are

concerned. There is a substantial amount of

authority in relation to cases involving the second

limb, the so-called "similar fact" cases. It is

submitted that this issue is one of general

importance to the administration of criminal

justice.

The risk of prejudice raised by the evidence

led in support of the bombing counts was, on any

view, substantial, in my submission. Proof of

acquittal on the bombing counts is not conclusive

of an absence of prejudice. That acquittal may be
explained by other reasons, for example, the jury
not finding corroboration of the evidence of the

Hetzels.

The learned trial judge adverted to the

possibility of prejudice at page 21 of the

application book where he said, the second

paragraph:

It may or may not be that the explanation

for what is said to have been his conduct in

shooting at police officers lies not in some

consciousness of guilt in relation to the

bombing incident, but may be seen in a desire

which he could have possessed to avoid

apprehension in respect of some other matter.

Such a situation would, of course, not be

without precedent and would not of itself necessarily require the severance of such

counts although it may in practical terms have

that effect in some circumstances. I am not

of the view that the present cases could be

properly regarded as falling within this

latter group. On the other hand such a

possibility is clearly of importance in the

exercise of discretion. After consideration
of all of the circumstances of the present

matter, I am not of the view that an order for

severance should be made.

Reed 9 6/6/91

The evidence in relation to the shooting

counts was not led until the sixty-second day of a

110-day trial. That evidence occupied a total of

six days and was swamped by evidence in relation to

the bombing. It is submitted that no matter how

strong a direction the learned trial judge may have

given to the jury to guard against prejudice to

treat each count separately, it would be asking too

much to ask a jury to engage in a process of mental

gymnastics to exclude from their minds the

prejudicial effect of the evidence led by the Crown

in support of the bombing charges.

In Sutton v Reg, (1984) 51 ALR 435,

Your Honour Mr Justice Brennan had this to say at

page 445 in relation to the principle of joinder.

At line 27 Your Honour said this

When two or more counts constituting a

series of offences of a similar character are

joined in the same information, a real risk of

prejudice to an accused person may arise from

the adverse effect which evidence of his
implication in one of the offences charged in

the indictment is likely to have upon the

jury's mind in deciding whether he is guilty

of another of those offences. Where that

evidence is not admissible towards proof of

his guilt of the other offence, some step must

be taken to protect the accused person against

the risk of impermissible prejudice.

Sometimes a direction to the jury is

sufficient to guard against such a risk;

sometimes it is not. Where a direction to

the jury is not sufficient to guard against

such a risk, an application for separate

trials should generally be granted. There may

be an exceptional case where countervailing
factors appear, but I do not at present

foresee them. As Lord Cross of Chelsea

observed in R v Boardman, so long as the

general rule excluding similar fact evidence	is maintained "the courts ought to strive to
give effect to it loyally and not, while
paying lip service to it, in effect let in the
inadmissible evidence by trying all the
charges together". It would be misleading for
a judge to require some further "special
feature of the case" - the criterion adopted
by Lord Pearson in Ludlow - before giving a
direction for separate trials. The purpose of
provisions such ass 278 is to avoid the
technicalities and rigid rules of criminal
pleading of procedure but not to impair the administration of criminal justice. Irvine CJ
pointed out in R v Brent, (1919) VLR 46 at 52-
3 with respect to the corresponding Victorian

Reed 10 6/6/91

prov1s1on, that it did not "intend to

introduce any fundamental alteration in the general rule that the tribunal to determine the guilt or innocence of a person charged

should not be affected by the evidence given

in relation to another charge - certainly not

the evidence given by another person in

relation to another charge". The price of

dispensing with the technicalities and rigid

rules of criminal pleading and procedure is

the imposition upon the trial judge of the

onerous function or directing the course of

proceedings to ensure that justice is properly

administered. To that end he is given a

discretion to order separate trials. Where the
evidence admissible on one count is not
admissible on another, and in consequence

there is a real risk of impermissible

prejudice to the accused, the sound exercise
of the discretion generally (if not

universally) require a direction for separate

trials.

That statement of the principle was clarified

and amplified by His Honour Mr Justice Brennan in

De Jesus v Reg, (1986) 68 ALR 1, and at page 12

His Honour emphasized that sexual cases should not

be put in a special category. At line 16 on

page 12 His Honour says this:

I have already stated my view in Sutton as to

the way in which the exercise of that

discretion should be approached and it is

unnecessary to repeat it. Suffice to say that
when the admission of the evidence admissible
on the charges joined in an indictment carries

the risk of impermissible prejudice to the

accused if the charges are tried together,

separate trials should be ordered. There is

no requirement that some further "special

feature of the case" appear before separate
trials are ordered.	I agree with the Chief

Justice that sexual cases are likely to arouse

prejudice and that a direction to the jury is

unlikely to give sufficient protection to an

accused. Though I would not place sexual

cases in a special category for the purpose of

applying the general statement I made in

Sutton, it would be an extremely rare case in which the difference in the view expressed by

the Chief Justice and my view would result in

a different exercise of discretion.

And then His Honour goes on to say that this was a

case where special leave should be granted and a

separate trial shoul.d have been ordered.

Reed 11 6/6/91

This same view has been followed more recently in the case of Hoch v Reg, (1988) 81 ALR 225 in a

joint judgment by Their Honours Justices Brennan and Dawson at page 229.

joint judgment of His Honour the Chief Justice and

It is further submitted that the applicant was

embarrassed in the conduct of his defence by the

joinder, and that embarrassment is, in fact,

referred to at page 106 of the judgment of the

Court of Criminal Appeal on page 47 of the

application book, and reading from the second

paragraph on page 47 of the book, the Court of
Criminal Appeal said this:

Finally it was said that the joinder of the counts embarrassed Reed in his defence.

As we understood the argument, it was the

first, that if there had been a severance of

the shooting counts, whilst Reed's attempts to

resist arrest might have been some indication

of a consciousness of guilt, he would have

been able to choose between attributing those

attempts in the conduct of his defence to a

consciousness of guilt on the bombing charges

or to a consciousness of guilt on some other

serious criminal charges which he is alleged

to have committed prior to his arrest at

Kallista. This argument was put to the trial

judge and rejected.

Secondly, it was said that as a matter of

forensic strategy the applicant Reed was best
served in relation to the bombing counts by

attacking the credit of the Hetzels and by

making an unsworn statement. On the shooting

counts, where the applicant was faced by a

number of police witnesses, it would have been

to his advantage to have been able to give

sworn evidence in his defence without laying

himself open to cross-examination on all

counts.

We think these contentions should be

rejected. Whilst a prosecution is to be

conducted fairly and an accused person is not

to be prejudiced or embarrassed in the

presentation or conduct of his defence, the
prosecution cannot be further constrained by
what the defence describes as various possible

courses which it may take by way of forensic

strategy.

Indeed, at the time the application was made

for separate trials, the learned trial counsel,

appearing on behalf of the applicant, in fact

Reed 12 6/6/91

argued as to the possible embarrassment that may

result.

BRENNAN J: And all this is postulated on the hypothesis

that the evidence that was admitted on the bombing

counts against your client was inadmissible - - -

MR GRACE:	Yes, Your Honour.
BRENNAN J:	- - - and the evidence to which you draw

attention is that which is in the list that you

have provided?

MR GRACE:  Yes, it is, Your Honour.

BRENNAN J: Well now, can I just take you to 5, 6, 7, 8, 9

and 10: that is evidence which was admitted against

co-accused: I take it that evidence was not

admitted against your client in the trial?

MR GRACE:	No, that is correct, Your Honour.
BRENNAN J:	Now, if the evidence in 1, 2, 3 and 4 were

admissible to prove the bombing against your

client, why was it not on that account admissible

on the shooting charges, the hypothesis being that

proof of guilt of the bombing was admissible in

proof of the shooting offences?

MR GRACE:	Is Your Honour suggesting a situation where the shooting charges may have been heard at a
subsequent time to the bombing charges of if they
were heard together?

BRENNAN J: Separate time.

MR GRACE:  Yes. Well in my submission the Crown would have

to get over the hurdle of relevance in relation to

those pieces of evidence before they would be
admissible on the shooting counts, and the only

relevance they would have would be to either

establish a motive such as deep hatred of the

police, or some evidence of similar conduct in the

past.

BRENNAN J: Well, to prove that he was engaged in the

bombing.

MR GRACE:  Yes, but an acquittal on the bombing may have

precluded the Crown in suggesting that he was

guilty of the bombing at any subsequent trial.

BRENNAN J: But the question is not the effect of the

acquittal.	The question is the admissibility of
the evidence.

MR GRACE:  Yes.

Reed 13 6/6/91

BRENNAN J:  Now put to the test the situation if the accused

were granted special leave to appeal; if the appeal
was heard and the appeal allowed, what would stop

the Crown, on a retrial, tendering the same evidence

against the accused, leaving out of account items 5

to 10?

MR GRACE:  Assuming he was acquitted of the bombing or found

guilty of the bombing?

BRENNAN J: Yes, acquitted of the bombing.

MR GRACE:  In my respectful submission, that evidence would

not be able to be lead.

BRENNAN J:  And what would be the ground on which it would be excluded?

MR GRACE: Well, at the very least, on the ground of

prejudice and exercise of the learned trial judge's

discretion, but at the higher plain, the question

of relevance would have to be established first.

BRENNAN J: Well the relevance would be that he was the

bomber, he was involved in the bombing.

MR GRACE:	Yes.
BRENNAN J:	Now does the acquittal have any effect on that?

MR GRACE: Well, there may be an argument of autrefois

acquit in relation to that particular aspect of the

matter, which may go towards the admissibility of

that particular piece of evidence.

BRENNAN J: Is that a proposition that has any support?

MR GRACE:  I am unable to point the Court to any authority for that proposition.

BRENNAN J:  So am I. I do not know what the answer is to

that.

MR GRACE:  No, I do not, but it would seem to me, in my

respectful submission, that at the very least, in

the exercise of a learned trial judge's discretion

on any subsequent trial of the shooting charges,

that evidence would be excluded on the basis of

prejudice, or the prejudicial value outweigh - - -

BRENNAN J: The question is whether it is undue prejudice.

MR GRACE: Prejudicial value outweighing the probative

effect.

BRENNAN J: It is extraordinarily probative, if he were, in

fact, involved in the bombing and the police came

Reed 14 6/6/91

after him, for the reasons that Justice Deane put

to you earlier.

MR GRACE:  Except that there is evidence available that

would prove that between the time of the bombing and the time of the shooting, Reed had committed

further offences, which may have given rise to the

police visiting his house in any event, so the
question of consciousness of guilt, in relation to

the bombing charges arising from the shooting

charges, was at least equivocal in relation to that

particular aspect of consciousness of guilt.	The
Crown could not say, positively, although they

certainly asserted it, that he had committed the

the matters I seek to impress the Court upon in

shooting as consciousness of guilt of the bombing.

relation to the severance argument. I do, as I

indicated earlier, rely upon the summary of

arguments set forward in the summary previously

filed with the Court. It is submitted that the

principles governing the proper exercise of
discretion, section 372(3) of the Crimes Act, in

relation to charges based on the common factual

origin, are matters which have a dearth of

authority attaching to it and warrant the grant of

special leave by this Court to settle the

applicable principles.

If I can now turn to the application in

relation to sentence. There are two aspects

to this particular application; the first is to do

with the issues and principles concerning orders
for concurrency. In the summary of arguments I set
out the sentences imposed upon the applicant and

the order for concurrency that was made. The effect of that order was to make cumulative a

period of four years upon the sentence for

attempted murder of the sentence for recklessly

causing serious injury. In relation to the

attempted murder, the applicant was sentenced to

No physical injury was caused to the victim. In	nine years imprisonment, maximum being 15 years.
relation to count 10, recklessly causing serious
injury to Wylie, another policeman, he was sentenced to seven years imprisonment, maximum
being 10 years; three years to be concurrent with a sentence on count 9. In respect of count 11, using a firearm to prevent apprehension - nine years,
maximum being 14 years - and that was made totally
concurrent with the sentences on count 9 and 10.
The total effective sentence was 13 years and a
minimum of 11 years was set before eligibility for parole would have been available.

It is submitted that an order for concurrency

is a sentencing tool to be used to m~tigate penalty

Reed 15 6/6/91

when more than one offence constitute a single

course of conduct. Total concurrency should have

applied between all sentences imposed as they arose

from the same set of facts. The applicant was, in

fact, shooting at police; the incident occurred

over a matter of seconds and in a short area of

space.

The common elements in each offence - time,

location, alleged motive and the actus reus - were

such that it would be difficult to envisage any set

of facts which would more approach a circumstance

where concurrency could be justified.

It has been generally accepted that when a

number of offences arise out of substantially the

same act, circumstances, or series of occurrences,

concurrent sentences should be imposed. In The

Queen v Carey, (1975) 11 SASR 575, the

Chief Justice at page 577 said at the last

paragraph on that page:

It is, I think, now accepted that when a

man is convicted of several offences arising

out of the same facts the sentences should

normally be concurrent; when the offences are

entirely distinct they should normally be

cumulative. Of course, there is often room

for debate about whether the various offences

do arise out of the same set of facts. But

there is no hard and fast rule either way.

In Brown v Lynch, (1982) 15 NTR 9, a decision of the Supreme Court of the Northern Territory, a

single judge, His Honour the Chief Justice, page 11

line 46, His Honour said this:

In a number of unreported decisions of

this court it has been held that, save in

special circumstances, when a number of

offences arise from substantially the same act

or same circumstances or a closely related

series of occurrences, cumulative penalties

should not be imposed, and many sentences

passed from day to day have demonstrated

adherence to this principle.

In The Queen v Koushappis, (1988) 34 ACR 419 -

MASON CJ:	The principle is not in doubt, is it, Mr Grace?
MR GRACE:	No, I am grateful for that indication,

Your Honour.

DEANE J:  But what does it mean? I mean, say two policemen

come to arrest somebody and he shoots one and then

a couple of seconds later shoots the other. Is the

Reed 16 6/6/91

proposition that in sentencing him on the first you
should take into account that he shot two people,

or is the proposition that in sentencing him on the

first, you should adopt the overall approach that

he is in the same position as after shooting the
first he had said, I am sorry, here is my gun, and

had not shot the second person at all.

MR GRACE:  It is submitted that separate sentences of

imprisonment are appropriate in each instance. As

in this case there were different ramifications of

the shooting.

DEANE J: Well, in other words, if you had two identical

cases, one in which the convicted person shoots one

policeman and then gives himself up handing over

his gun and then the other, the convicted person
shot two policeman, they should both serve

precisely the same gaol sentence.

MR GRACE:  No. With respect, Your Honour, what would happen

in the latter instance would be that the sentences
in respect of the second set of circumstances would

be higher than the first sentence imposed, if there

was just one incident, because the totality of the

criminal activity would have been greater.

DEANE J: Well that is not necessarily apparent to me. I

would have thought the fact that they were the same

occurrence and so on probably made the criminality

the same.

MR GRACE:  Well it may be, depending on the factual

circumstances of the case. Indeed, in this case,

the attempted murder of Quinsee, which carried a

maximum of 15 years, attracted a penalty of nine

years; the recklessly causing serious injury to

Wylie attracted seven years, where the maximum was

10 years. So if one tries to bear some sort of

analysis of the proportion of the sentence to the

maximum, it could be seen that the second count was

treated in a much more serious fashion, and

correctly so, in the circumstances of this case, to
the first count. But it is coupled with the
situation in this matter where, on the third count,

using a firearm to prevent lawful apprehension,

which is the act of actually firing the firearm at

the two policemen, he received nine years

imprisonment, which were ordered to be totally

concurrent.

DEANE J: But the proposition, which is put as a proposition

of law, is essentially that if somebody commits
three crimes at the same time, in terms of ultimate

sentence to be served, he should be in the same

position as if he had only committed the most

serious of them.

Reed 17 6/6/91

MR GRACE:  I would not state it as boldly as that, with

respect.

DEANE J: But is that not the consequence?

MR GRACE: Well, not necessarily, Your Honour, because there

is always an inherent discretion in the sentencing

judge to reflect adequately the seriousness of the

crimes in a total way; either by making orders for

cumulation or concurrency, but in that case it

would not be applicable, or in reflecting, in each

sentence imposed, the gravity of the total set of

circumstances.

DEANE J: But if it is open to the sentencing judge to

reflect the total gravity of the three crimes by

not making the sentences concurrent, is that not

what the judge has done here?

MR GRACE:  He certainly has. He has not stated any reasons

for adopting that course, I might add with respect,
and that is another cause for complaint, although

the Court of Criminal Appeal said he was justified

in adopting the course he took.

DEANE J: What if he had said, I think you have been guilty

of three crimes and therefore, in addition to the

sentence I impose for the most serious, you can

also serve some time in gaol for the other two?

MR GRACE: Well, at the very least, one would have expected

a pronouncement by the learned sentencing judge as

to the reasons from departing from the generally

accepted principle.

DEANE J: Yes, I suppose I am·querying what is involved in

the generally accepted principle.

BRENNAN J:  Does it not rather speak for itself. The judge

was quite conscious of what the total sentence was

that he was imposing and he split them up.

MR GRACE:  Yes he did, in fact, but in my respectful

submission, he did it in an incorrect fashion and

he applied the principle that is accepted in an

incorrect fashion. It may not, in a final

analysis, have reached a different sentence in

terms if he had applied the principle in the way

that I contend he ought have. He may have reached

the same sentence, but it is submitted that the

sentences of imprisonment imposed on each

individual offence were correct and that there has

been no reason given from a departure from the

general course of sentencing that has been adopted

over recent years. The matter is complicated,

however, and further highlighted, if one looks at

the issue concerning the refusal of the trial judge

Reed 18 6/6/91

to credit the pre-trial custody of the applicant.

Section 16(1) of the Penalties and Sentences Act provides that:

any period of time during which that person -

convicted of an offence -

was held in custody -

prior to conviction, shall -

be reckoned as a period of imprisonment or

detention already served by that person under

the sentence -

of imprisonment imposed, unless the court otherwise
orders.

The learned sentencing judge ordered that the

applicant receive no credit for pre-sentence
detention, but failed to give any reasons for so

doing. Such order, it is submitted, was not

justified in the circumstances of this case, and

the effect was to increase the applicant's actual

sentence by three years and six months to an

effective sentence of 16 years and six months with

a minimum of 14 years and six months. Applying

that reasoning to the individual offences and by

assuming the same order of four years accumulation

between count 10 and count 9, the individual counts

would then read as follows: for the attempted

murder, he received 12 years and six months,
maximum being 15 years; for actually causing

serious injury, 10 years six months where the

maximum is 10 years, so you have got in excess of

the maximum there, six years and six months of that

being concurrent with the attempted murder,

allowing for four years accumulation; and using a

firearm to prevent apprehension, 12 years and six

months, where the maximum is 14 years.

BRENNAN J: That is on the basis that you are increasing the

two years and four months by a half, is that right?

MR GRACE:  Yes.

BRENNAN J: To allow for the - - -

MR GRACE: Effect of remissions.

BRENNAN J:  - - - remissions which he did not get because he

was on remand?

MR GRACE:  He would have been entitled under section 16 of the Penalties and Sentences Act to those

Reed 19 6/6/91

remissions, if the learned trial judge had not made

the order that he did, in fact, make.

Before I go to the application book, the

learned trial judge again did not give any reason for adopting that course and it is submitted that the combination of the failure to apply concurrency

and the failure to credit pre-sentence custody has

led to a total effective sentence which infringes

at that totality principle, and which is manifestly

excessive. At page - - -

BRENNAN J: The Court of Criminal Appeal has said that they

saw nothing excessive in the effect of sentence.

MR GRACE:  Yes, well, it is submitted that the

Court of Criminal Appeal was in error in that view

and, secondly, it is submitted that in their

calculations they were in error. The

Court of Criminal Appeal said, at page 52 of the

application book, second paragraph:

It was also submitted that the effective sentence was manifestly excessive. It was

said to be an effective sentence of 16 years

with a minimum of 14 by adding to the sentence

imposed the length of time spent in gaol

awaiting sentence which we were told was two

years and four months and by adding also a

further third of that time to represent the

remissions which would have been available to

the applicant if the two years and four months

had in fact been part of his prison sentence.

Notwithstanding this ingenious argument, the

fact is that the effective sentence cannot be

regarded as more than 15 years and 4 months

with a minimum of 13 years and 4 months.

Now, it is submitted that, in fact, the calculation

of a third of the two years and four months is not

correct; it is in fact - one has to calculate a

half of that to add it to the two years and four

months to reach a figure of three years and six

months which, with remissions, would give a result

of two years and four months.

Now, that ingenious argument which was

rejected by the Court of Criminal Appeal,

comprising Their Honours the Chief Justice and

Justices Gray and McDonald, has subsequently been

handed to the Court two unreported decisions of	accepted by the Court of Criminal Appeal. I have and Ball, an unreported decision of the Court of
Criminal Appeal, delivered on 17 November 1989.
That was a court comprising His Honour the Chief
Justice and Justices Crockett and Mar~s. There it

Reed 20 6/6/91

was ordered in respect of the applicants that the

period of time spent in pre-trial custody would not

be credited. At page 3 of the judgment in the

second-last paragraph on that page, His Honour the

Chief Justice says this:

It is against the sentences so imposed

that the applicants now seek leave to appeal. In substance the ground of appeal is that in

each case the sentences are manifestly

excessive, but there is one particular respect

in which that contention was developed and

that respect was based upon the observation
that the time spent in gaol pending trial was
taken into account.

In the case of Tippett, for instance, the learned Judge said:

"I sentence you to a period of ten years'

imprisonment and I direct that you serve a

period of eight and one-half years before

which you will not become eligible for parole,

bearing in mind, of course, that you have

already spent a year and a half in prison."

After the sentence had been passed there

was a discussion as to what was meant by what

His Honour said.

And the effect was that the sentence was to begin

from the day that His Honour ordered it and there

would be no credit for pre-trial custody. Half-way

down the page His Honour the Chief Justice said

this:

The effect of what His Honour did was to

increase the sentences very substantially.

However the matters are calculated, the fact

is that the applicant Tippett spent fifteen

months in gaol awaiting trial on these

charges, and when one considers that, had that

period been served as part of an ordinary
sentence, it would have been subject to

reduction by remissions, it can be seen that

the total effective sentence being imposed for
this particular series of offences was closer
to twelve years than any other figure. That

is a very high sentence. It is not far from the maximum fifteen years which is available for manslaughter.

At page 7 of the judgment His Honour the Chief

Justice says - this is the first substantive

paragraph on that page:

Reed 21 6/6/91

That situation, I think, is sufficient to

indicate that it is generally very unwise for

a sentencing Judge to attempt to take into

account, (in the sense that he makes a

different order to prevent the operation of

section 16(1) of the Penalties and

Sentences Act) any period in which the

particular offender has been in custody

pending disposition. In my experience it is

very unusual for a Judge to do so, and I think
it is preferable in most cases that the

sentencing Judge should not.

And in the instant case, the applicants were

resentenced and the ground of appeal, namely that

the sentences were manifestly excessive, was

upheld. More recently, on 17 April 1991, in the

Reg v Roderick,
case of a decision of the comprising Their Honours Crockett, Marks and Gobbo,

a similar argument was raised. If I could refer

the Court to page 4, the first substantive

paragraph:

The effect however of His Honour's order

pursuant to section 16(1) was to make the
period of pre-trial detention of some

10 months between 27 January 1990 and

26 November 1990 not to be reckoned in the

period of the effective sentence. In turn it

meant that the applicant was subject to

imprisonment on the head sentence, taken

together with the 10 months, effectively for

9 years and 10 months. It was pointed out

however by counsel for the applicant, I think

correctly, that the direction under
section 16(1) effectively meant that the

applicant lost the benefit of having been in prison for 10 months which would, when taken

into account with remissions, be the

equivalent of 15 months.	The head sentence
might therefore, as Mr Forrest I think

correctly argued, be taken to have been

effectively 10 years and 3 months.

At page 7 of the same judgment - I might add that

the extract I read previously was from the judgment

of His Honour Mr Justice Marks - at page 7 the

judgment of His Honour Mr Justice Crockett appears,

and in the course of his reasons His Honour said

this, in the second paragraph of his judgment:

In the course of argument it became

apparent that there was some difficulty in

determining what the Judge intended should be

the value to be placed upon the applicant's pre-sentence detention having regard to the

Reed 22 6/6/91

notional remissions that should attach to that

detention.

In that connection, I repeat the remarks

of the learned Chief Justice speaking in

effect on behalf of this Court in

Reg v Tippett and Ball, an unreported judgment

delivered 17 November 1989. His Honour said:

and there the quotation I previously read to the

Court was quoted with approval and His Honour

Mr Justice Crockett makes this final comment:

I think that sentencing Judges should in

future bear closely in mind the wisdom of

those observations.

Now, of course, those pronouncements were made

after the Court of Criminal Appeal had considered
the applicant's application for leave to appeal
against sentence in this case, but they indicate
that the learned trial judge and the
Court of Criminal Appeal, in turn, did not

correctly apply the principles, or if it was proper

to order that pre-sentence custody not be credited,

reasons ought to have been stated. Special or

exceptional circumstances, in my submission, need

to be shown before departure from the terms of

section 16(1) ought to be allowed to operate.

It is submitted that the principles generally

governing concurrency and crediting of pre-trial

custody have not been addressed by the

Court of Criminal Appeal in their judgment in the

applicant's case. Specifically, of course, there

at least appears to ·be a misapplication of the

sentencing principle in relation to the crediting
of pre-sentence custody. The combination of these
facts, together with the absence of enunciation of
the principles or the applicable principles by the

Court of Criminal Appeal and the resulting lack of

certainty applicable to those principles as

applying to the administration of criminal justice

at least in Victoria, make the circumstances of the

imposition of these sentences appropriate for the

grant of special leave to appeal.

It is submitted that there has been a

violation of the principles governing the exercise

of discretion imposing sentence in this case and

this Court, it is respectfully submitted, needs to

settle the true principles. Further, these
sentencing issues are of general importance to the

administration of criminal justice. If the Court

pleases, that completes my submissions.

Reed 23 6/6/91

MASON CJ:  The Court will take a short adjournment to

consider the course it will take in this matter.

AT 12.28 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.35 PM:

MASON CJ: Yes, Mr Bongiorno.

MR BONGIORNO: If the Court pleases.

MR BONGIORNO:	If the Court pleases. So far as the question of special leave is concerned on the point of
severance of these counts - - -
BRENNAN J:	No, on the point of joinder of the counts.
MR BONGIORNO:	On the point of joinder. Well, on the alleged error of the trial judge to sever the
counts on the question of joinder of the counts,
Your Honour, in our submission, the question to be
determined by the trial judge is whether the
preconditions laid down in the presentment rules
exist. That is a question of fact, that the trial
judge determined that and his ruling is reproduced
in the application book and that determination does
not, in this instance, raise any question of general principle at all.

BRENNAN J: What is the meaning of "the same facts"? What

does that mean? I mean obviously the bombing was a

different fact from the shooting.

MR BONGIORNO:	Yes.
BRENNAN J: Well, what is it that makes them the same facts?

MR BONGIORNO: Well, in this instance, Your Honour, to take

the judgment of the Full Court where is it

reproduced at pages 41 and 42 of the application

book, in our submission, the application of Barrel

and Wilson, as it is applied by the Full Court,

answers effectively Your Honour's question.

The learned judge rejected an application

for the severance of those charges on the

ground that they were properly joined under

rule 2 of the Presentment Rules as being

founded on the same facts as the other counts

on the Presentment. His Honour applied the

principle applied by the Court of Appeal in

Reed 24 6/6/91

R v Barrell and Wilson where Lord Justice Shaw

said:

"The phrase 'founded on the same facts' does

not mean that for charges to be properly

joined in the same indictment, the facts in

relation to the respective charges must be

identical in substance or virtually

contemporaneous. The test is whether the

charges have a common factual origin."

And the court goes on to say that:

as it was in Barrel and Wilson, where there

was a charge of attempting to pervert the

course of justice, in the fact that that

charge could not have been alleged but for the

facts giving rise to the primary charges in

that case which were affray - - -

BRENNAN J: But that cannot be applied here, can it?

MR BONGIORNO: Well, it can in this sense, Your Honour, that

the motive for the applicant to have behaved the

way he did could clearly have been that he knew

the police were looking for him in respect of other

matters. Now, if in fact there had been, as is

suggested but not put in the material, some other

matters other than the bombing counts, well then

that could have been put and it might have been a

matter that would have persuaded Mr Justice Vincent

to grant the application.

BRENNAN J: But put the test there: the facts giving rise

to the shooting could not have been alleged but for

the bombing. Now, can that be said?

MR BONGIORNO:  I am sorry Your Honour, I - - -

BRENNAN J: Taking page 42, and the test that was applied by

the Court of Criminal Appeal after the quotation

from Barrell and Wilson, can it be said that the

charges with respect to the shooting could not have

been alleged but for the facts giving rise to the

bombing? You would have been perfectly happy to

prosecute adducing evidence of other crimes, would

you not?

MR BONGIORNO:  Yes, yes.

BRENNAN J: Well then, it is not a "but for" case at all, is

it?

MR BONGIORNO:  No, in that sense it is not, Your Honour.

The Full Court, of course, goes on to assert that here it was open to the jury to draw the inference,

the matter that I have just mentioned, that a

Reed 25 6/6/91

consciousness of guilt of Constable Taylor had lead

him to take the extreme measures to prevent

apprehension that he did. In our submission, of

course, if one takes the question of what might be

called the cross-admissibility of evidence, well

clearly the evidence that Reed had been involved in

the murder of Constable Taylor would have been
admissible in respect of the shooting, on the

question of the deep-seated hatred of the police,

as the Full Court -

BRENNAN J: Yes. Well, that goes to the question of the

severance, but the question that is raised against

you is one of the joinder, whether you are entitled

to join these charges, not whether the judge should

have said it.

MR BONGIORNO:	I am sorry, Your Honour?
BRENNAN J:	Not whether the judge should have ordered a

severance, but whether the prosecution was entitled

to join.

MR BONGIORNO: Well, it comes down ultimately, Your Honour,

to the question of whether it can be said to have

been founded on the same facts on the basis that

the Full Court said or, alternatively on the basis

that Mr Justice Vincent said at page 18.

Well, Your Honours, in our submission, the question as to whether Mr Justice Vincent should

have severed the counts is really the same question

as to whether they could have been joined. If they

were misjoined, well then, clearly he should have

severed them but, in our submission, when one looks

at the way in which he dealt with the application,

it is clear that he found sufficient facts to bring

them within the appropriate rule of the presentment

rules.

There is nothing, I think, further that I can

say about that, other than to go to - when

Mr Justice Vincent was exercising the jurisdiction

that he had to determine the application made by

counsel for Reed in so far it was an application

for severance, he was doing so, of course, in the

exercise of a discretion and, in our submission, in

so far as he found the facts, he found those to

have justified the joinder and not justify a

severance and I think there is nothing further that

we can say about that.

Further, in any event, Your Honour, we would

say that the second limb of the rule, that the

facts form part of a series of offences of the same or a similar character, could be relied upon in any

event in that both of these events involve the

Reed 26 6/6/91

shooting of police or the attempted murder or harm

to policemen - one a murder and one a shooting -

and that in any event the joinder could have been

justified on that ground.

I think that there is nothing further that I

can say to Your Honours about that matter, other

than to, of course, point to the verdict which
demonstrates, in our submission, that there was no
prejudice to the accused, Reed, in the way in which
the trial was conducted, having regard to the

discriminating way that the jury dealt with him, as

distinct from the others, both in relation to the

Kallista matters.

MASON CJ:	Now, Mr Bongiorno, we need not trouble you on the exercise of the discretion contained in
section 372(3), nor need we trouble you about that
element of the argument directed at the sentences
that was based on concurrency, but we do need to
hear you on the final point raised, that is the
crediting of pre-sentence custody.

MR BONGIORNO: Yes. Well, Your Honours, this Court has in

at least two other cases and probably more, but I

have one that I will hand to Your Honours, Marie.

The case to which I refer Your Honours is Marie v

Reg, which is not reported in the Commonwealth Law

Reports as far as I am aware. It is (1978) 52 ALJR

631, where His Honour Mr Justice Aickin dealt with

sentencing. It was, in fact, a question of whether

special leave should be granted and the passage to

which I would refer the Court is at page 637 in the

judgment of Mr Justice Aickin, dealing with the

question of special leave.

it is not every error, or possible error, of a

Court of Criminal Appeal which constitutes a

basis for special leave.

And then:

Attempts to define or describe the

circumstances which make a matter special have

failed and have indeed been abandoned.

White v The Queen is cited and it is this passage

that is of relevance to this part of the appeal:

Where the Court said in respect of an appeal against sentence: "Efforts over a long period of years to define the effect of the word

'special' have broken down but it remains true

that what we are required to look for is

something that is special in the case. Prima

facie we do not think a case is special unless

it involves some point of law of general

Reed 27 6/6/91

application and, therefore, of importance.

This case involves no point of law, none whatever, and we do not think that in such a

case we should intervene unless there appears

to have been a gross violation of the

principles which ought to guide discretion in

imposing sentences."

In our submission, what is involved here is

section 16 of the Penalties and Sentences Act which

specifically, notwithstanding the recent dicta of

the Full Court in respect of sentencing, permits a

trial judge to do what Mr Justice Vincent did in
this case and that no question of principle arises

out of that. The section being that:

If a person is convicted of an offence and

sentenced to a term of imprisonment or

detention in respect of that offence, any

period of time during which that person was
held in custody in relation to proceedings for
that offence or proceedings from which those
proceedings arose shall, unless the court

otherwise orders, be reckoned as a period of

imprisonment -

and the court did otherwise order -

DEANE J:  Mr Bongiorno, after consideration, if it were

decided to give leave on the joinder point, do you

dispute that, reading the judgment of the

Court of Criminal Appeal, it seems to be

inconsistent with what was said in the subsequent

cases?

MR BONGIORNO:	In respect of the joinder point, Your Honour?
DEANE J:	No, in respect of this last point about not taking

account of the effect of remissions in giving

credit for pre-trial detention.

MR BONGIORNO: Yes. Well, Your Honour, certainly the

Full Court in this case does not go into the

question otherwise than to say it does not reject

what it describes as the ingenious argument; it

simply says that notwithstanding it. So that it is

not, in our submission, inconsistent; it simply

puts aside the question and ultimately - - -

MASON CJ: When you label an argument as "ingenious", you

are labelling it as one that you are rejecting.

MR BONGIORNO: Well, with respect, we would say not

necessarily, Your Honour. In this circumstance

they are saying that, looking at the question of

totality, there was nothing overall excessive and

they put the so-called "ingenious argument" aside

Reed 28 6/6/91

for another day. It is significant also that in

the Court of Criminal Appeal judgment which was

cited, the words "in future" appear in the learned

Chief Justice's judgment.

MASON CJ: But that hardly helps you, does it? I mean, what

is the correct rule must be a rule that should have

applied from the inception.

MR BONGIORNO: That, as a matter of legal theory, is

probably so but, with respect, this Court and

others from time to time, in appellate situations,

take the opportunity of saying that which ought to

apply in the future, without any necessary

implication that there has been error in the past

and in this instance the matter is one where the

Full Court has dealt with it and has said, "Well

there was an argument that this should have

occurred, but we will put that argument aside and

look at the whole sentence and it is not excessive

in any event", so that there are no injustices

being rort and, in our submission, a grant of

special leave to appeal should not flow where -

unless the Court is satisfied that some injustice

also will be corrected by the grant.

DEANE J: Well, I do not want to take time, I just want to

make sure I am not misunderstanding. Page 52, six

lines from the bottom is the sentence:

Notwithstanding this ingenious argument, the

fact is that the effective sentence cannot be

regarded as more than 15 years and 4 months

with a minimum of 13 years and 4 months.

Well now, is not the effect of the later judgments

that the effective sentence can be regarded as 16

years and six months?

MR BONGIORNO:	No, Your Honour, it
DEANE J:_ Well then in that case I have gone wrong

somewhere.

MR BONGIORNO:  I think, unless I have made a miscalculation,

but -

DEANE J:  I was not focusing on the extra year and two

months, but that seems to me to be right, I must

say.

MR BONGIORNO:	The effective sentence was 13 years maximum; 11 years minimum. He was in custody for two years and four months; a third off - that is 28, a third
is nine months off that, is a year and - - -

Reed 29 6/6/91

DEANE J:  No, the "ingenious argument" is to produce two

years four months in custody, you need a sentence

of three years six months.

MR BONGIORNO:  Yes.

DEANE J: So, therefore you, on the later decisions, add to

the 13 years, three years and six months, and

according to later decisions, the effective

sentence can be regarded as 16 years six months.

MR BONGIORNO: Well, yes. It depends how the arithmetic is

done, I suppose Your Honour, but the - - -

DEANE J: Well, it really depends on half of two years four

months being added to two years four months.

MR BONGIORNO:  Yes, to two years four months to get three

years six months, yes.	You end up with the third
twice.

Notwithstanding that, Your Honour, in our submission, the Full Court having said that the

effective sentence is not excessive and - -

DEANE J: Well, it may well be that implicit in that is they

are saying it does not matter, but if we were to

grant leave in relation to joinder, and if it seems

that that sentence is inconsistent with the later

decisions, should we not include in the grant of

leave that short point?

MR BONGIORNO: Well, that certainly could be dealt with at

that time also, Your Honour, yes. I do not think

there is anything further that I can say to

Your Honours.

MASON CJ:  Thank you, Mr Bongiorno.

There will be a grant of special leave in this

case but the grant will be confined to the joinder

question, that is the construction of the

presentment rules, and the principles governing the

crediting of pre-sentence custody. Bearing in mind

that the grant of special leave has been confined

in that way, the reproduction of the materials,

including the transcript of evidence, should be

avoided as far as possible and, although the effect

of what I have said excludes argument on the

question whether there should have been a severance

on discretionary grounds, I should make it

perfectly clear that that point is excluded from

the grant of leave.

AT 12.58 PM THE MATTER WAS ADJOURNED SINE DIE·

Reed 30 6/6/91