Rowbottom v The Queen

[2004] HCATrans 383

[2004] HCATrans 383

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D16 of 2003

B e t w e e n -

BRETT ROWBOTTOM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 OCTOBER 2004, AT 11.09 AM

Copyright in the High Court of Australia

MR S.J.ODGERS, SC:   May it please the Court, I appear for the applicant.  (instructed by Dalrymple & Associates) 

MR D.J. BUGG, QC:   May it please the Court, I appear with MR P.M. USHER for the respondent.  (instructed by Commonwealth Director of Public Prosecutions) 

McHUGH J:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, the directions that are complained about can be found in the application book at page 38.  I imagine your Honours have looked at them, but at line 15 ‑ ‑ ‑

McHUGH J:   We always do.

MR ODGERS:   At line 15, the trial judge directed the jury in respect of the statement made by the accused to the police: 

in considering what weight if any to give that statement you will bear in mind your own common sense and experience of life that people often try to make excuses for what they have done in order to avoid or diminish blame for what they have done.

It was submitted in the Northern Territory Court of Criminal Appeal that that direction was unfair and undermined the presumption of innocence in a way which was not identical to, but similar to, the way that the trial judge directed the jury in Robinson’s Case. 

The Court of Criminal Appeal rejected that argument, and the essence of the judgment is to be found at pages 86 and 87 of the application book.  As I understand what their Honours are saying there – and my interpretation may be misplaced – they rejected the argument essentially for two reasons.  The first reason was that they considered that the directions that were given were similar to directions endorsed by the House of Lords ‑ ‑ ‑

McHUGH J:   In Duncan.

MR ODGERS:    ‑ ‑ ‑ in Duncan and Sharp, I think, your Honour, the House of Lords case.  Those directions can be found at page 83 of the application book where, at the bottom of the page, the House of Lords adopted as correct what Lord Chief Justice Lane had said in Duncan, the key part of it being the second last sentence:

Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. 

I will say something about that in a moment, but if I could just return to page 87, your Honours.  As I understand it, the second reason that the Court of Criminal Appeal rejected the submission made by the applicant was that the directions given by the trial judge in this case did not invite the jury to discount the accused’s evidence simply on the basis that it was evidence from the accused.  The court interpreted Robinson in a particular way and held that since, at least explicitly, there had been no reference to the fact that he was accused, there had been no invitation to discount on the basis of that fact. 

Now, I will go back to the first question, the Sharp analysis.  In my submission, the directions were not similar to those approved in Sharp, even assuming that those directions are permissible under Australian law.  We do not seek to challenge them, the correctness of the Sharp principle, but what we say is that the directions did not say that the exculpatory statements of the accused lacked a particular pointer to reliability which is present in respect of the incriminating parts. 

What Sharp is endorsing is a proposition that says, all right, the incriminating parts, there is a pointer to reliability because people do not usually – if they incriminate themselves, that tends to be reliable because you usually would not do it unless it is true.  Then it is followed by the proposition that that pointer to reliability is not present, self‑evidently, in respect of exculpatory statements.  In this case, what the trial judge directed the jury at page 38 was that he invited them to give less weight to the accused’s exculpatory account because of the possibility that he was guilty and would be likely to tell lies about that to avoid conviction.  In essence, he was directing the jury that they may discount the accused’s denial of guilt because that is what he would say if he was guilty. 

McHUGH J:   Well, the issue in the application is not really whether the direction was analogous to that given in Robinson, but whether or not it caused or may have caused a miscarriage of justice, is it not?

MR ODGERS:   Hearing what your Honour says, I had come here to contend that it was analogous to Robinson and I had understood that ‑ ‑ ‑

McHUGH J:   It might be arguably under the umbrella of the sort of Robinson approach, but this talk about it being analogous seems to me a long bow, really. 

MR ODGERS:   Well, your Honour, one of the difficulties here is working out what is the true principle for which Robinson stands.  The Court of Criminal Appeal took a particular view and what I would submit was a fairly narrow view of the principle for which Robinson stands.  What I would submit is the principle for which Robinson stands is this, that a trial judge should not invite the jury to discount an accused’s evidence, whether it is an out of court statement or his in‑court testimony – it makes no difference – he should not invite the jury to discount it for reasons that involve a priori generalisations that apply only to the accused. 

In Robinson, a generalisation, “Well, the accused has the greatest interest in the outcome of the proceedings”, applies only to the accused and the jury were invited to discount.  Here, the jury is invited to discount the accused’s denial of guilt on the basis of a generalisation that if he is guilty, that is what he would say.  He would deny it.  So, to put it bluntly, whenever a jury is invited to reason that, “Oh, well, how much weight can we give this, because if he is guilty he would brazen it out”, that invites them to generalise in a way which essentially discounts the accused’s assertions of innocence.  In my submission, that runs into the very problem that Robinson was all about, undermining the presumption of innocence. 

It is very difficult to reconcile a presumption of innocence with a generalisation that “An assertion of innocence has less weight because, if he is guilty, you would expect him to say he was innocent.  So how much weight can you give to it?”  At the very least, in my submission, this case does raise a question of general importance about how a judge should direct a jury on this kind of issue.  Can I say this, your Honours, as far as I am aware, it is not at all the practice to give this kind of direction in New South Wales.  However, I do understand that it seems in Victoria, at least, it is accepted that it is permissible for a judge to make a general comment to a jury, “Well, the accused has denied his guilt.  If he is innocent, what more can he do?  On the other hand, if he was guilty, you would expect him to brazen it out” – to use that language that was adopted in the case of Haggag. 

In South Australia, it seems that, in the case of Hickman, the very same kind of language is regarded as impermissible.  It is regarded as impermissible to direct a jury that it is common that guilty people deny their guilt.  In my submission, the judge in this case has done precisely the same thing.  He has said to the jury, “It is common for guilty people to deny their guilt”.  Now, if it is not permissible in South Australia and it is permissible in Victoria, it is not said in New South Wales and a particular judge in the Northern Territory has said it, in my submission, there is a real question that needs to be resolved.  What is the proper scope of the principle in Robinson?

McHUGH J:   The real problem arises out of the fact that courts accept that exculpatory statements made out of court which are part of a tender can be used in favour of an accused person.

MR ODGERS:   Your Honour, can I go back to Sharp.  Sharp is saying yes, it can be used in his favour and what directions should be given.  What they are saying is, you can take into account the incriminating part and you may think it is reliable because people usually do not incriminate themselves unless it is true.  That pointer to reliability is missing.  So you are left in a neutral position in respect of exculpatory parts.  It does not go the next step, which is the problem here, and invite the jury to say, “Well, compared with every other witness in this case, this person, the accused, if he is guilty, has an interest to lie, to deny his guilt”.  Now, that does not apply to every other witness.  So it is inviting the jury compared with every other witness to undercut his or her testimony or his or her out of court statement by reason of a generalisation that if he is guilty, he would lie, therefore it must have less weight than the person was not in that position. 

Robinson was concerned with a situation where a jury is invited to use a common sense piece of logic.  He has an interest in the outcome of the proceedings and you can take that into account.  It is common sense, but it undercuts the presumption of innocence.  Equally here, to invite a jury to say, “If he was guilty, he would deny it, and take that into account in assessing its weight”, is to undercut the presumption of innocence and it goes, in my submission, well beyond Sharp.  That is why we do not say that Sharp is wrong.  We do not challenge Sharp, but we say that there is a difference between saying that a pointer to reliability is missing, which is Sharp, and saying that, in essence, there is a pointer to unreliability, which is this kind of direction.  It is precisely because of the danger that it will invite ‑ ‑ ‑

McHUGH J:   Well, Sharp did leave open to the trial judge the right to comment on the failure of the accused to give evidence, did it not?

MR ODGERS:   Well, your Honour, can I go back to page 83 of the appeal book.  I am sorry I did not provide the case.  As I understand it, your Honour, the court gave guidance as to what could be said, and, going back to that second last sentence, you can:

point out that incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight –

as the incriminating parts.  It is pointing out that there is an absence of a pointer to reliability.  But it is a very different thing to do what has been done in this case – and it happens in Victoria and apparently not in South Australia and not in New South Wales – and that is to say to a jury, “Bear in mind that guilty people often deny their guilt”. 

McHUGH J:   In New South Wales prior to – I think it was Williamson’s Case in 1974, the practice of most judges was that they would only allow the exculpatory material to be used when it was an explanation or affected the inculpatory part.  I think since Williamson in New South Wales and generally, anything that is exculpatory goes in, even though it is in one sense unconnected with the ‑ ‑ ‑

MR ODGERS:   The hearsay rule does not apply.  It can be relied on as evidence of the fact.  I do not think there is any doubt that a judge is permitted to give what I will call a Sharp or a Duncan direction, but I have made my point as strongly as I can that, in my submission, this is not a Sharp or Duncan direction ‑ ‑ ‑

McHUGH J:   Well, I think we understand your point.

MR ODGERS:   Your Honours, can I say this, that, in essence, what is happening here is that a judge is inviting a jury to give less weight to the denials of guilt ‑ ‑ ‑

McHUGH J:   We understand what you are putting.  It is an important point in cases – which seem to be becoming fairly common – where the accused does not give any sworn evidence and his or her defence is put through out of court statements containing exculpatory statements.  Your point is that this sort of comment by the judge undermines the weight of that testimony or that evidence. 

MR ODGERS:   I go further, your Honour.  The principle for which this case stands, as in Victoria, applies to whether it is an out of court statement or in‑court testimony.  The judge in this case could say, “Well, bear in mind that when you are assessing his statement, his denial of guilt, you take into account that guilty people will deny their guilt”.  So, in principle, there is nothing to prevent a judge saying to a jury when you are assessing the accused’s testimony, as happens in Victoria, “Bear in mind that if he is guilty, he would be likely to brazen it out and deny guilt, and you can take that into account”.

CALLINAN J:   Mr Odgers, you would also say that it is important that there be uniformity, particularly when the courts are exercising, as here, federal jurisdiction.

MR ODGERS:   Absolutely, your Honour, and it is hard to imagine a matter of more general importance than to work out what a judge can or cannot say, should or should not say, about denials of guilt advanced by an

accused, whether out of court or in court.  I do not think I can say anything more. 

McHUGH J:   Thank you.  Yes, Mr Bugg.

MR BUGG:   Thank you, your Honour.  Your Honours, there has been, in my submission, a distraction in this matter by the attempt to glove this case into this Court’s ruling in Robinson.  There is quite a sharp distinction between the circumstances of this case and what occurred during the trial and Robinson’s Case and the subsequent matters which this Court commented upon in refusing special leave in Stafford and Ramey.  The position in those three matters and the authorities relied upon by my learned friend – Asquith, in particular – all involved a situation where the accused entered the witness box and gave evidence and there was some invitation to the jury by the presiding judge to weigh the evidence of the accused against the other evidence of inculpation given in court on the basis of either an interest in the outcome of the proceedings or the greater weight of an interest in the outcome of proceedings. 

Here, the statement that was before the jury – and his Honour carefully took the jury through how that statement was produced – was provided, that is, written and provided, by the accused before he was charged or arrested with any offence; in other words, at the time – this is how it was put in closing, and his Honour commented about that – by his counsel, that it was prepared by him to assist the police.  Your Honours will see from the statement that it contains an account of how he, accompanying two other people, travelled from Darwin to Thailand.  The other two were a couple ‑ ‑ ‑

CALLINAN J:   Well, we know the facts, Mr Bugg.

MR BUGG:   They returned on separate flights.  The person carrying the drugs returned from Thailand direct to Darwin ‑ ‑ ‑

CALLINAN J:   We know all the facts and about the fingerprint ‑ ‑ ‑

McHUGH J:   It is a strong case, particularly the fingerprint, but there is this point of principle that worries me, Mr Bugg.  Where the accused has not given evidence, the exculpatory parts of any out of court statements are the only refutation of the Crown case except those admissions that can be extracted in cross‑examination, and a comment such as this, which rather plays down or reduces, perhaps undermines or destroys, the effect of what the accused has said out of court in the exculpatory statement, does seem to put the accused’s statements at a disadvantage, or his evidentiary material at a disadvantage.

CALLINAN J:   And it really puts him in a position that the law does not contemplate, that perhaps he should have to go into the witness box.

MR BUGG:   Your Honour, first of all, it is not his evidentiary statement in the sense that ‑ ‑ ‑

McHUGH J:   Well, when I say his evidentiary statement, I mean it is part of the evidence upon which he can rely.  Mr Odgers makes the point that if the judge can say this about the statement made out of court, why can he not say it about sworn evidence in court by the accused? 

MR BUGG:   Well, at the time the sworn evidence is made, there is a presumption of innocence.  That is clearly what underpins Robinson and that is the distinction ‑ ‑ ‑

CALLINAN J:   There is a presumption of innocence throughout. 

MR BUGG:   But there is no presumption of innocence ‑ ‑ ‑

CALLINAN J:   Until the verdict is brought in.

MR BUGG:   I understand that, your Honour.  I am sorry to interrupt you, but there is no presumption of innocence giving an umbrella to this applicant at the time he made that statement.  He had not ‑ ‑ ‑

CALLINAN J:   What do you mean by that?

MR BUGG:   Well, he had not been charged.

CALLINAN J:   He had been interviewed by the police and he is preparing it for the police.

MR BUGG:   He had been interviewed by the police and had declined to make any statement, on advice from solicitors.  A week later ‑ ‑ ‑

CALLINAN J:   Well, knowing that a charge was ‑ ‑ ‑

McHUGH J:   Inevitable, I would say, inevitable.

CALLINAN J:    ‑ ‑ ‑ at least possible.  And what about this, Mr Bugg, what Mr Odgers has said is correct, I take it, that there are different directions given in different States.  You do not disagree with that?

MR BUGG:   On the authorities that have been referred to the Court, there is a difference, as you will find with any judge – it is just the subjective nature of the judicial process.  There is a difference as to the conclusions that have been reached in Courts of Criminal Appeal.  I would not ‑ ‑ ‑

CALLINAN J:   Exercising federal jurisdiction.

MR BUGG:   No, not exercising federal jurisdiction.

CALLINAN J:   This is a case of federal jurisdiction.

MR BUGG:   Yes, it is.

CALLINAN J:   Surely the State courts do not distinguish, when they are giving their directions, between federal jurisdiction and State jurisdiction, do they?

MR BUGG:   No, they do not, but, your Honour ‑ ‑ ‑

CALLINAN J:   Is it not desirable that there be uniformity, at least in federal jurisdiction?

MR BUGG:   I accept that, but I do not concede that there is not uniformity.  To assert from the Bar table that there is a difference in the directions which are given around the country is not borne out, in my submission, from the conclusions which have been reached by the Courts of Criminal Appeal that have undertaken a consideration of directions which have been criticised in this particular area.  In particular, they have related to situations where there is only a comparative weighing of viva voce evidence given before the jury. 

If the Court is looking for a vehicle to define Sharp in this country, this is, with respect, not an appropriate vehicle, because, firstly, there is the significant distinction about how this material was prepared and ultimately found its way before the jury.  This is not a situation where one has a person being interviewed by the police who gives a mixed statement, as it was called by ‑ ‑ ‑

CALLINAN J:   But what is the difference between whether the police are present and whether the police are not present when the statement is made or compiled?  What difference does that make?

MR BUGG:   Well, it makes, in my submission, a considerable difference because ‑ ‑ ‑

CALLINAN J:   Police are not supposed to cross‑examine, are they?

MR BUGG:   They are not supposed to cross‑examine, but they are entitled to question.  You have a person who declines to answer questions, on legal advice, and then prepares a statement, the admissibility of which was challenged before the trial started on the basis that there was an argument as to whether or not it was prepared for his solicitors or for the police.  On hearing the evidence of the police as to the statement made to the AFP when they attended, his Honour ruled the statement admissible. 

Now, in terms of looking for an appropriate vehicle, with respect, the facts of this particular matter do not provide the appropriate vehicle.  Additionally, it would be my submission that you cannot look at just what his Honour said in isolation.  There is a real balance about his Honour’s charge to the jury, when one examines the totality of it.  To merely examine the two lines which are the subject of the challenge in this application takes too sharp a focus from the rest of the charge to the jury and gives an imbalance to those two lines in what his Honour continued to say.  I merely invite your Honours to look at page 38, line 15, which is the criticised portion, and then his Honour says:

Thirdly, you should, when evaluating what the accused said in his statement, have regard to all the rest of the evidence in the case.

Now, he does not say it should ‑ ‑ ‑

CALLINAN J:   Well, the next paragraph helps ‑ ‑ ‑

MR BUGG:   And the next paragraph:

If you think that what the accused said happened in the statement is in the light of all that other evidence reasonably possible then you ought to approach the case on the basis that that reasonable possibility has not been excluded by the prosecution and give the accused the benefit of any reasonable doubt –

because it was, in a sense, a circumstantial case. 

McHUGH J:   But the problem with the direction, particularly what appears at line 15, is that it is directed only to the accused and refers to “excuses” for things done. 

MR BUGG:   I accept the difficulty with the reference to things done, your Honour, but when one considers what the proscription of this Court has been through Robinson, it has been on the focus of the fact that the person is the accused.  Here, at the time that statement was made, (1) he was not the accused; (2) his Honour does not focus on the accused.  It is a comment – that and nothing more, and his Honour has given a direction to the jury as to how they are to deal with his and counsel’s comments on the facts and the evidence.  It does not have that flaw or fatal circumstance about it that was referred to in Robinson and reinforced in both Stafford and Ramey by this Court.

McHUGH J:   But is there not an important point of principle as to whether the approach in Robinson is applicable, in effect, although not in terms, to these out of court statements?

MR BUGG:   Yes, I would accept that that may be so if one is able to, as I say, fit the Robinson glove over this particular matter.  That is the difficulty, because Robinson talks about saying you will scrutinise the evidence more closely if the person giving that evidence has a greater interest in the outcome. 

McHUGH J:   Yes.

MR BUGG:   Now, at the time that statement was prepared, it was prepared as a witness statement to assist the police.  That is the tenor of it, and one only needs to examine it to see that that is the case.  That is how it was put by his counsel in closing and referred to by his Honour, “You have heard Mr Tippett say that this was a statement prepared to assist the police”.

McHUGH J:   If what was done in this case by the accused is not common, one can suspect it will become common – a prepared statement being handed up and then getting in and then you do not go into the witness box. 

MR BUGG:   Your Honour has mirrored something I said yesterday to one of my colleagues. 

CALLINAN J:   Well, it does happen from time to time.  It is not unique, really. 

MR BUGG:   It is a self‑serving statement ‑ ‑ ‑

McHUGH J:   Yes. 

MR BUGG:    ‑ ‑ ‑ and, on the face of it, if it did not have the inculpatory component of linking into the journey through Thailand and back to Darwin, it would not have been admissible.

CALLINAN J:   But that is the chance the prosecution takes.  It decides to put the document in ‑ ‑ ‑

MR BUGG:   I do not cavil at the chance, your Honour.

CALLINAN J:   Can I just ask you about this matter, Mr Bugg, the formulation at page 38, about line 24: 

and give the accused the benefit of any reasonable doubt if what he says is consistent with his innocence. 

Is that correct?  Is there not some problem with that?  Particularly when you marry it to what is earlier said. 

MR BUGG:   Yes, there is.  It is for the prosecution to ‑ ‑ ‑

CALLINAN J:   So that paragraph does not cure it.  In fact, on one view, it makes it worse. 

MR BUGG:   Yes, I accept that criticism of the last line of that statement. 

CALLINAN J:   Your best point is really this is a very, very strong case, is it not? 

MR BUGG:   It is, and when your Honour Justice McHugh asked my learned friend if there had been a miscarriage of justice, that really is the only other point I would make.  This was a very strong case, albeit circumstantial, no explanation given to the court, the jury, for the presence of the applicant’s fingerprints on the tape which wrapped the heroin and on the plastic base forming the false bottom in the suitcase of his travelling companion.  The jury ‑ ‑ ‑

CALLINAN J:   It was a fairly fanciful sort of story, too, about Thailand and travelling though Thailand.

MR BUGG:   Well, if the journey was to go to Thailand, why that is critical, when one examines the availability of, one might say, unhelpful material from the applicant’s point of view – the nature of the journey was to look at a business proposition ‑ ‑ ‑

CALLINAN J:   He is depending upon handouts and he is ‑ ‑ ‑

MR BUGG:   And the first fortnight is spent in Chiang Mai, which has a geographical distance between that and the place where this business proposition was to be examined, that is, to set up an internet café.

CALLINAN J:   An internet café.

MR BUGG:   Yes, in Thailand.

CALLINAN J:   I do not know what he was going to do about that ‑ ‑ ‑

MR BUGG:   And I do labour the brief fact of the return journey, that the girlfriend carrying the drugs returns on a Qantas flight straight from Bangkok, whereas the other two, this applicant and Mr Gooch, return via Malaysia and on a different airline.  So, in terms of looking at whether or not this is an appropriate vehicle, the issue of whether or not what you have here is a miscarriage of justice is another issue, if your Honours please.

McHUGH J:   Yes.  Yes, Mr Odgers.

MR ODGERS:   Yes, perhaps I should respond to the last matter.  Your Honours, can I just take you to page 42 of the application book.  This was the trial judge’s summary of the defence case and it is useful, with respect, to look at that to see what was the defence case.  It was firstly that it was accepted by the prosecution expert that the fingerprints could have been placed on those two items.  It was impossible to work out when they had been placed there.  That is the first point.  The second point was that, in respect of the false bottom, that had to be placed into the case, and therefore had come from somewhere outside and therefore possibly had been touched by the applicant in innocent circumstances.  The fingerprint on the tape, again, the defence case was it was possible that it could have been placed there when it was on the tape.

CALLINAN J:   What was the art in which Gooch and Pierce dealt?

MR ODGERS:   Art? 

CALLINAN J:   “experienced travellers who deal in art”.

MR ODGERS:   I do not think there was any dispute that they had a business in art.  I do not think that was in dispute.  I am told Aboriginal art, your Honour.  They were experienced travellers, travelled all the time and did deal in art.  There was no dispute about that.  Can I also draw your Honours’ attention, apart from all the matters that defence counsel referred to you, at line 20, defence counsel:

urged you to accept the accused’s statement as an honest and unvarnished account of his trip to Thailand.

So defence counsel is urging the jury to accept that statement as essentially exculpatory and providing an answer to the suspicious circumstantial evidence, which undoubtedly was highly suspicious. 

The next point I would make, your Honours, is one I have made in the written submissions.  The jury was out for a very long time in this case.  It was a short trial; they were out for, I think, nine hours or so.  They told

the judge at one stage that they were hung, they could not agree.  They were given a Black direction and eventually found the accused guilty at 9.35 at night.  Your Honours may think it was a strong case.  I am prepared to concede it was a strong case, but it was not a case which the jury found easy.  It was a case in which the defence ‑ ‑ ‑

CALLINAN J:   The notion that he was a complete unsophisticate seems a bit unlikely.  He was an undischarged bankrupt, working for cash in the building industry ‑ ‑ ‑

MR ODGERS:   I think he was unsophisticated in the sense that he had never been overseas before and ‑ ‑ ‑

CALLINAN J:   Sophisticated enough not to disclose his earnings, either to his trustee in bankruptcy or to the Income Tax Commissioner.

MR ODGERS:   That may be so, your Honour, but at the end of the day the question was, was he basically taken along as a dupe by these other two who were effectively using him as some sort of foil, or was he involved in it?  The fingerprints strongly suggested he was involved in it.  However, the defence pointed to innocent possibilities and invited the jury to rely on what he said in his statement, in which he denied, effectively, any involvement in the drug importation.  The judge then undercuts that by telling them, “Well, bear in mind that when he denies his guilt that is what a guilty person would do”. 

Your Honours, I respectfully submit that while it is not a case where the proviso would be applicable – it was not, as far as I recall it – I do not recall that it was argued below that it would be appropriate to apply the proviso – I do submit that there is an important point of principle that should be resolved for the future, whatever the outcome of this particular case. 

McHUGH J:   Thank you, Mr Odgers.

This application raises an important point concerning the directions that a trial judge can give concerning the exculpatory parts of an accused’s out of court statements.  In other circumstances the point would probably warrant the grant of special leave but, given the evidence in the case, we do not think that the applicant has established that a miscarriage of justice has occurred by reason of the judge’s direction.  Accordingly, the application is refused.

AT 11.45 AM THE MATTER WAS CONCLUDED