Sakieh v The King

[2022] HCATrans 174

[2022] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S170 of 2021

B e t w e e n -

MOBIN SAKIEH

Applicant

and

THE KING

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 14 OCTOBER 2022, AT 2.02 PM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR T.A. GAME, SC appears with MS A. FRANCIS for the applicant.  (instructed by Bannisters Lawyers)

MS H.R. ROBERTS, SC appears with MS E.S JONES for the respondent.  (instructed by Director of Public Prosecutions (NSW))

GAGELER J:   Mr Game.

MR GAME:   Thank you, your Honour.  We are a few months out of time and need an extension of time – which I do not think is opposed.

GAGELER J:   You should present your argument, Mr Game, and we will deal with the extension of time question in due course.

MR GAME:   Thank you.  So, our position, if the Court pleases, is that this case raises a question of process quite like that raised in Dansie – although very much less complicated.  For similar reasons, the process engaged in by the majority in the Court of Criminal Appeal was defective.  If I could take the Court immediately to page 114 of the application book, in paragraph 90.

That formulation of the test for a question of whether or not a verdict is unreasonable or cannot be supported by the verdict was commonly utilised in New South Wales prior to – not universally; commonly but not universally – and what it lacks it the critical question which is, it does not say that doubt experienced by the appeal court is a doubt that the jury ought to have had, subject to the advantage that the jury may have had – which is the second proposition.  That is, actually, the critical thing.  In this case, the one judge that did ask that question came up with a conclusion that he did have a doubt.

GAGELER J:   Mr Game, all of the three judges independently listened to the telephone intercept and formed an independent assessment as to what could be drawn from it.  Do you accept that?

MR GAME:   With a qualification, your Honour.  The qualification is that one can draw no more, we submit, from Justice Beech‑Jones’ judgment that he concluded that it was open for the jury to view that in a particular way which is not the same thing as himself asking a question about whether or not he had a reasonable doubt.  In fact, it is much more close to, I am satisfied that there is a pathway to guilt, is what the listening of the recording leaves him with.  That is at paragraph – I have to take your Honour to a few more paragraphs – but the concluding paragraphs is at 117 and 118.

GLEESON J:   Mr Game, the doubt that Justice Rothman had was based on whether Mr Sakieh was at the bottom of the stairs or the top of the stairs, and that was an issue that Justice Beech‑Jones identified as a question of conjecture.  So, what is the reasonable alternative hypothesis that Justice Beech‑Jones and Justice Bell might have identified that could have given rise to doubt?

MR GAME:   Sorry, your Honour, so if one goes to paragraph 103 – which is, I think, a passage that your Honour is referring to – that sentence, we submit, is possibly the most contentious of the entire judgment; where his Honour says:

While I regard the possibility that one or more of the group of males who returned down Pennicook Lane entered the stairwell but did not enter the victims’ balcony to be mere conjecture –

Neither of the other two judges joined with that.  Justice Bell explicitly distanced himself from it, as did Justice Rothman at 36, and it is based on a lack of information.

In fact, if it is a matter of conjecture, it works the other way.  What has happened here is, is that that line about “mere conjecture” comes out of Baden‑Clay, where it is a question about some other thing that was not even suggested.  This is about an indispensable fact that has to be established beyond reasonable doubt, which is that six people went up onto the balcony.  That is a matter of conjecture, so it is based on inadequate information.  The seeds of the failure of the judgment are in that very sentence, so that then his Honour comes to the end of his judgment to say it is:

well open . . . that . . . he entered onto the victims’ balcony –

that just follows on from this mistake that appears at paragraph 103.  So, it is ‑ ‑ ‑

EDELMAN J:   Mr Game, there is a flavour reading through the Court of Appeal’s reasons – all of the judgment – there is a flavour that the trial had proceeded on the basis that, if you cannot prove that any of them – or which of them was the one that peeled off – then they are all entitled to be found not guilty, without any real case being put – or the prosecution really being put to proof of whether they were on the balcony, in the room or at the building.

MR GAME:   Your Honour, what happened was, on appeal, it was accepted as an indispensable fact that to be liable one had to be on the balcony.  That can be seen at paragraph 87 of Justice Beech‑Jones’ judgment at page 213.  But what there was no attention to was, can it be said that this person is a participant in a joint criminal enterprise to deliberately inflict grievous bodily harm by being on the balcony, if he was on the balcony.

Your Honour, when one gets to that passage back at paragraph 103, what Justice Beech‑Jones is saying – and we say controversially and wrongly – is that it necessarily follows that if six people came back, all six of them went up the stairs to the second level.  But there is literally no evidence of that.  The estimates of the two witnesses were between four and 10 people, and there was no advantage that the jury had on any question because the problems with those two witnesses had anything to do with credibility; it had everything to do with their ability to make observations in the unfortunate circumstances in which they found themselves.

That passage at 103 – the fourth last line – that, really, is the passage that drives his Honour’s judgment and it is turning the thing upside‑down.  What it is doing is introducing something collateral as mere conjecture when that is the very thing that has to be established beyond a reasonable doubt – which is that there was six on the balcony.

EDELMAN J:   That was common ground at trial, was it?  It was common ground that the prosecution at trial had to put the six on the balcony.

MR GAME:   Yes.  What that passage that I just referred you to in Justice Beech‑Jones’ judgment is saying is that despite great efforts by the prosecution to get away from that on the appeal, that is how they conducted their case in the court below.  In fact, in the address to the jury, the prosecutor actually said they all went inside the unit, but it is not necessarily to go that far.

It is clear that case was conducted on the basis that they could not establish liability unless they got somebody onto the second‑level balcony.  There is no reason to think that Justice Beech‑Jones at paragraphs 117 or 118 has asked himself, do I have a doubt as to whether or not Mr Sakieh – I probably pronounced his name wrong – was on the second balcony and a participant in the offence.  The whole thing is in terms of what are emerging lines of potential reasoning from the transcript, and that ‑ ‑ ‑

GAGELER J:   Mr Game, could I just ask about the framework of M and Dansie?

MR GAME:   Yes.

GAGELER J:   The ultimate question is whether the appeal court – or each judge of the appeal court – is satisfied that the jury must have had a doubt, is it not?  If that conclusion is reached, the jury, acting reasonably, must have had a doubt.  That is when the unreasonable verdict ground was made out.

MR GAME:   Yes.

GAGELER J:   The judge can reason, actually, I have a doubt.  I have looked at it, I have a doubt, and therefore I consider that the jury, acting reasonably, must have had the doubt.  That is what the minority judgment did here.  If it goes the other way, and that is to say, I have looked that there is evidence, I have listened to it very carefully, and I am not satisfied that the jury must have had a doubt – putting it in other words, it was well open – which are the words used – to the jury to reach the conclusion.  That does not betray error, does it?

MR GAME:   Yes, it does, your Honour, because the judge has to make the assessment.  It does not display error if you have gone through the process of asking yourself whether or not you have a doubt, and the proposition that your Honour just put to me is the conclusion.  But if that is the reasoning, then you have left something critical out in the process.  So, the conclusion is okay, but the reasoning is not.  And in this judgment, there is no hint of a suggestion that his Honour has asked the first question in M v The Queen.  If I could just show your Honours at 104 how his Honour dealt with the other verdicts.

GAGELER J:   Mr Game, perhaps before you do that, what about just a straightforward case of disputed testimony where one witness says something, the other witness says something else.  Classic jury question.  Does the judge, on appeal, have to say, well, I prefer one witness’ testimony over the other.

MR GAME:   No.

GAGELER J:   Why is it?

MR GAME:   The answer to that question – I interrupted you.  Sorry.  I apologise.

GAGELER J:   No, no, no.  And if the answer is no – and I will stop interrupting you – why is not the evaluation of this real evidence in the same category?

MR GAME:   Well, because in that case, the proposition is, if I had a doubt, then the jury’s advantage would trump it, in the example your Honour gave me.  That is not the situation here, because there is no jury advantage, so jumping to the second question takes you out of any consideration of the critical first one.  That is to say:  do I have a doubt?  Is any doubt I entertain answered by the jury’s advantage?  The answer to the second question is there was no jury advantage, therefore the first question is the only question.

EDELMAN J:   You have to go a step further, though, of course, do you not, Mr Game?  You have to say that once the court looks at the second call, albeit in light of the first call, and in light of the fact that the applicant had been shown photographs of him in the lane, that the answers such as, “Were you there?” “maybe” are at least equivocal because the word “there” could be a reference to the lane, it could be a reference to the building, it could be a reference to the balcony.

MR GAME:   But, your Honour, we do say that.  We say that the court should have had a doubt.  But we begin by saying that they did not – we say that the answer would necessarily be the conclusion drawn by Justice Rothman.  I was trying to address the first part of the argument to say that ‑ ‑ ‑

EDELMAN J:   My point is that there is two parts.  There is the first part as to how the question gets asked and your second part is that there must necessarily have been a doubt. 

MR GAME:   Yes, your Honour.

GAGELER J:   Mr Game, I see from your notice of appeal that you are asking us to conclude that there must have been a doubt and to quash the convictions.  That is, you would be asking this Court to do again what the three judges in the Court of Criminal Appeal did, presumably involving listening to the transcripts and combing through the entirety of the evidence.

MR GAME:   Your Honour, I think there may be some overreach in our notice of appeal and we would be quite – I am not begging, but we would be quite content if the matter were remitted to the Court of Criminal Appeal.  And, yes, there is a problem with the Court engaging with the evidentiary question because of the need to listen to the recordings.

GAGELER J:   So is your real complaint a methodological one?  You say that the majority judges adopted the wrong test.

MR GAME:   Yes, your Honour.  That is exactly what we say.

GAGELER J:   And if they did, you would want it remitted to apply the right test?

MR GAME:   Yes, but we also say – in terms of prospects, we embrace that which was put to me by Justice Edelman, which is that there is an answer to this in what actually can be drawn from these calls.  But if I just come back to a question that your Honour Justice Gageler asked me before, which is if in a contested testimony case you went straight to say, well, I would not be able to say one way or the other, that would be fine because you are actually saying – you are concluding the second one with good reason because it is clearly such a case, so that the answer to the first question would cease to be critical, would cease to be a step that you have to take.  That is not this case, for the reasons I have given. 

So I will just go back to 104.  Actually, I have time.  If I just go back very briefly to – the part I read was at 214.  At 215, there is a discussion of the evidence of Krisenthal and Wordsworth.  I am going to have to wrap up, but what should have been said was that this is a case in which there was no advantage.  But if you then look at 104, this “must” rather than “might” test is being given work to do.  And it really was put to bed in Pell and it continues to have a life.  “Must” not “might” was all about how Justice Hayne dealt with a dissenting judgment in the Court of Appeal where speculative conclusions were drawn, and it was really put to bed by Pell. 

But what the “must” from “might” really means there is that they could not convict because there was no case; and they could not convict because there was no case because you could not say they were one of the six.  So that is how high the test has been put.  We say that when you get to the end – and, yes, I have listened to the recordings – you could not possibly say that that is a conclusion from the recording that he is on the balcony.  Moreover, it is erroneous – the whole strength of it is erroneously built on that sentence in paragraph 103 which was the subject of an exchange between me and Justice Gleeson.

Those are our submissions.  So just to be clear, yes, if we are granted special leave, then a remittal to the Court of Criminal Appeal is all that we would press for.

GAGELER J:   And is the ground of appeal appropriately formulated to reflect the way in which you say there was error of principle?

MR GAME:   Yes, your Honours.  So the ground of appeal just needs to be – one needs to just leave out – it just needs to be the court erred by “failing to make their own independent” – it is (b) not (a) really, in page 234.

GAGELER J:   Mr Game, if we were to hear the appeal, what material would we ‑ ‑ ‑

MR GAME:   Just this, your Honour.

GAGELER J:   Just what is in the application book?

MR GAME:   Yes, your Honour.

EDELMAN J:   Is that possible, Mr Game?  I mean, if your submission is going to be confined on appeal to one that really is that the majority have misapplied the test as properly stated in Dansie explaining M, then surely one way, perhaps the only way, of really telling whether they have misapplied it is by looking at the facts to determine whether or not the reasoning really discloses error.

MR GAME:   I hate to backtrack on what I just said to Justice Gageler, and my time is up, but if your Honour looks at page 262 you will see that at the top of the page – it has just occurred to me there some factual things that would need to be brought into play but they are fairly limited and I am sure the parties could put that before the Court quite expeditiously.  That is to say, there was some evidence about sightings of him at both ends of the lane and so forth.  So, yes, it might be necessary to provide your Honours with that material, but only for the purpose of asking whether or not the court has asked itself the right question.  So, subject to that, that is our position.

GAGELER J:   Thank you, Mr Game.  Ms Roberts.

MS ROBERTS:   Thank you, your Honours.  The respondent contends that the approach to the unreasonableness ground taken by the majority in this case was in conformity with the test in M, that the majority Justices did make their own independent assessment of the whole of the evidence and did it come to a conclusion themselves as to what that evidence established, and those conclusions were properly reached consistently with principle.

EDELMAN J:   Ms Roberts, do you say that there is anything in the oral recordings that, in terms of the tone, any delays, the way the words were spoken, would affect the reasoning?

MS ROBERTS:   I do, your Honour, yes.

EDELMAN J:   What is that?

MS ROBERTS:   Well, I do not wish to give evidence from the Bar table about the recordings, but it is, in my submission ‑ ‑ ‑

EDELMAN J:   You can inform us whether any submissions to that effect were made in the Court of Appeal about the nature of the oral effect, or the oral conditions, the circumstances and the manner in which the recording was given.

MS ROBERTS:   Yes, your Honour.  So, during the Court of Criminal Appeal hearing, whilst the CCTV footage was played and their Honours were directed to various parts of it on behalf of each of the parties – or the applicant and the Crown – the recordings of telephone intercepts were not played during the hearing, but – and submissions were not made about tone, but the transcript records such things as after the word “maybe” is spoken there is a – it is recorded as a snort in brackets.  That is something that might be better heard, as to whether that is the complexion that is placed on it.

There were submissions made to the jury about the recordings and how they should be heard or regarded by the jury, but each of the Justices in the Court of Criminal Appeal referred to listening to them more than once.  And his Honour Justice Rothman made an observation about the importance of listening to them, rather than reading the transcript.

So, it would be – and it is the respondent’s submission that that would be a relevant matter for your Honours, if your Honours were to consider whether the conclusions reached by the Court of Criminal Appeal in this matter were properly reached, because the availability of the findings that their Honours made about whether those recordings constituted admissions must necessarily be included in an assessment of whether their Honours took the correct approach to making that assessment.

Of course, in the respondent’s submission, the correct approach was taken, and part of that was the fact that their Honours listened to the recordings and formed a conclusion in his Honour Justice Beech‑Jones’ judgment at paragraph 118, which is at application book 226.  His Honours describes:

The telephone call on 19 July 2017 is especially incriminating.

And forms a conclusion, which the respondent submits is his Honour’s conclusion, which is:

The reference to him “not doing jackshit” but answering “maybe” as to his presence conveys that he was present during the stabbing but did not carry it out himself.

That finding is a finding on the evidence in the respondent’s submission, and it is inextricably linked with his Honour having listened to the recordings and forming the conclusion based on how they sounded in addition to how they read on the transcript.

GAGELER J:   Ms Roberts, do we read that last sentence as his Honour’s finding as to what is conveyed?

MS ROBERTS:   Yes, your Honour, in the respondent’s submission.  Yes.  And then, the other aspect is that in the third call – in further answer, perhaps, to your Honour Justice Edelman’s question – there was a submission made by the Crown at trial that there were additional words not recorded in the transcript.  That is set out at appeal book 254 in – excuse me – that is the respondent’s response.  The Crown’s case was at trial that the indistinct words in the October call included, “I’m not even doing anything like that anymore”.  That was the submission made to the jury; it is also recorded by his Honour.  That submission is referred to by his Honour Justice Beech‑Jones at paragraph 117 of the judgment of the Court of Criminal Appeal.  Although, that is a reference to the submission, rather than a conclusion by his Honour.

Then his Honour continues at paragraph 119 to conclude in what the respondent submits is a correct and orthodox manner in considering an unreasonable verdict ground, which is that his Honour concludes:

Given the intercepted telephone calls, I consider that, upon a consideration of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt –

That is a statement of the M‑test in the respondent’s submission, and a correct one.

EDELMAN J:   Ms Roberts, what do you say to the submission that the reference by Justice Beech‑Jones to conjecture is a Baden‑Clay‑type reference, in circumstances where this was always something that was common ground that the Crown had to prove.

MS ROBERTS:   Your Honour, the Crown’s submission about that is that at trial, after the Crown case closed, there was argument and ruling confining the Crown’s case to establishing that the assailants were above the level of the first floor apartment.  That is in his Honour – then‑President Bell’s judgment at paragraph 8, and Justice Beech‑Jones at 85.  The jury were directed that participation in a joint criminal enterprise was confined to going above the first‑floor balcony and – at least on the stairs – although that then became “on the balcony” or “in the unit,” in the way that it was ultimately put.

The difference between being on the stairs and being on the balcony of the unit was not a particular factual matter that was raised at the trial in the way that the defence cases were run.  So it was that the applicant’s case was as described to the jury and your Honours will see that in the summing up – which appears at application book 98, which is 86 of the summing up – that his Honour is describing to the jury the defence case on behalf of this applicant, and it was that on all of the evidence, there was a rational hypothesis that the applicant:

had left the group as it walked towards the Hillcrest Road end of Pennicook Lane –

That is the rational hypothesis that he was the seventh man, to oversimplify the situation.  There was other evidence about that, but it included the CCTV footage and the issue of the sighting by Mr O’Byrne.  The Crown put a particular reliance on that, because the Crown said that the jury should accept that Mr O’Byrne had seen the applicant with a partially disguised face, whereas the applicant challenged the correctness of Mr O’Byrne’s identification of him, but said that if Mr O’Byrne had seen him, that meant that the timing precluded him from being one of the persons who got back into EV’s vehicle at the end of the lane.  So, it was relying on that in potentially two different ways – or a fallback position, as it were.

So, it did not become – perhaps because of the way that the Crown was required to confine its case at the conclusion of the case, and put the case of the jury on the limited basis, and the uncertainty of the estimates of numbers by the victims, the case became whether the six persons had gone back up onto the balcony and into the unit or whether the Crown could exclude the possibility that the applicant did not go with them at all, rather than there being a – it being drawn – the lines being drawn a lot about whether or not there was participation on the stairs, or so forth.

But in further answer, perhaps, to your Honour’s question, his Honour then‑President Bell came to a different conclusion about this issue of the stairs and held that it was not a conjectural possibility.  Your Honours will see that at his Honour’s judgment at page 194 of the application book, paragraphs 15 and 16.  So, his Honour came to a different conclusion and said it was not a conjectural possibility, it was, in effect, a reasonable possibility:

that some members of the group remained on the lower staircase or outside the first floor unit while the assaults occurred.

Despite that conclusion about the case, his Honour agreed with the assessment – or made his own assessment and agreed with the assessment of Justice Beech‑Jones about the telephone intercepts.  So, at paragraph 17, his Honour there says:

I have also listened on numerous occasions to the recordings –

and agreed with his Honour Justice Beech‑Jones’ conclusions expressed in the way that it is:

that it was well open to the jury to conclude that these calls contain admissions by him to the effect that, at the very least, he entered on to the victims’ balcony –

GLEESON J:   Ms Roberts, the language of “well open to the jury”, are you saying that that contains within it a conclusion that the judge did not have a doubt or are you saying that it was not necessary for the judges to explicitly address the question of whether they held a doubt?

MS ROBERTS:   Your Honour, my proposition is the former – that is, that I understand that it is put against us that that language indicates that there is only an identification of a pathway of reasoning and not a conclusion by his Honour that his Honour himself does not have a doubt.  However, the respondent’s submission about that is that the assessment of these telephone intercepts followed the assessment of the case – the balance of the case – so that their Honours have considered all of the material in the case and formed the conclusion – each of them – that the jury must have had a doubt – or ought to have a doubt; must have had a doubt – because of the insufficiency of the evidence to establish that each individual assailant was one of the men who went back – or young men, I should say – who went back up onto the balcony.

Part of that was the assessment of the CCTV footage and their Honours conclusion that you could not be certain that there were more than six persons who returned up the lane.  But, as his Honour then‑President Bell said, at paragraphs 15 and 16, in the absence of some specific evidence inculpating one or more the accused – or his Honour described it as:

some particular incriminating evidence –

the jury could not be satisfied beyond reasonable doubt that that accused had participated in the joint criminal enterprise.

It is against that background that his Honour is, in effect, looking for whether the telephone intercepts provide that particular incriminating evidence.  In the respondent’s submissions, his Honour is concluding himself that they do – and the only way that they can do that is if his Honour is satisfied that they amount to admissions as to his presence on the balcony.  Rather than it being an available path for reasoning, it is his Honour’s conclusion expressed in that way.  His Honour also agrees with Justice Beech‑Jones’ reasoning, which is expressed a slightly different – I have already taken your Honours to those passages.

GAGELER J:   On one view, obviously Justice Beech‑Jones produced his judgment first.  In his judgment, he is looking for this – is there this specific evidence?  He listens to the telephone recording and he says in the last sentence of paragraph 118, I interpret what was said in that intercept as conveying – or as Mr Sakieh, in effect, saying that he was present during the stabbing.  Now, that is the conclusion that he reaches and on that basis – on one view of his reasons, he is saying, it was well open to the jury to reach the same conclusion as that which he has reached; that there is an admission.  Following through to the Chief Justice, it appears to me to be saying exactly the same as – or to be saying that he reached the conclusion, having listened to the recordings – that is exactly the same as appears at paragraph 118.  So, it may well be just how you read the first sentence and the last sentence of paragraph 118.  We might be at that level of fine analysis.

MS ROBERTS:   Your Honour, it is certainly the respondent’s contention that they should be properly read as conclusions of their Honours; in particular, taking account of what has come before, but also the way in which his Honour Justice Beech‑Jones concludes at paragraph 119, which is clearly then a statement that he has taken into account these conclusions with respect to the intercepted telephone calls to consider that the M‑test has been satisfied.  By contrast, his Honour Justice Rothman reaches simply what the respondent says is simply a different conclusion on the evidence – and that is that recorded at paragraphs 48 and 49, which is appeal book page 200 – where his Honour says:

The intercepts are in evidence and . . . are best considered by listening to them.

His Honour says he has listened to them but in his view:

the conversation leaves open the extent of such “involvement” –

and he is not satisfied that they are admissions to involvement in the joint criminal enterprise.

It is the respondent’s contention overall that this application for special leave does not identify an error of principle or an error of process in either of the ways in which the applicant contends and accordingly, for those reasons, special leave should not be granted.  Thank you, your Honours.

GAGELER J:   Thank you, Ms Roberts.  Mr Game.

MR GAME:   First, I do not think there was any comment by any of the judges as to what it was particularly they might have drawn from listening to the recordings.  If one goes to this line in the last line of 118:

conveys that he was present during the stabbing –

It was an indispensable fact that any person was on the balcony and not on the stairs, and that was not because they were being kind to the defence.  It was because there was difficult in establishing a participating in the joint criminal enterprise to break into the upstairs unit. 

So it was kind of like you had to get them onto the balcony to have the prospect of establishing participation.  He actually denies participation and you would have to address that if you were asking yourself if you had a doubt.  But this conveys that he was present.  That word “present” becomes quite critical because if you have already said that it is more conjecture that anybody was only on the stairwell, then you have . . . . . on the balcony because of what you said earlier, and then Justice Bell agrees with that even though he does not agree with the process by which it is reached.  So, to do an acute sort of sub‑analysis of this to try and make it work as if the judge has asked himself the question, in my submission, is not good enough.

You will not find the reasoning where he asks himself the M v The Queen question.  The use of the phrase “well open” is informed by what his Honour stated the test was, back in the passage I took you to, and his recounting of why he entertained a doubt in respect of the others, which was basically that there was no case to answer.  So, we say there is a significant point here; it is raised acutely by the way in which the Court has dealt with the question, and the case warrants a grant of special leave.

GAGELER J:   Thank you, Mr Game.  At this point we will retire to consider the course we will take.

AT 2.44 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.55 PM:

GAGELER J:   The legal principle underlying the proposed ground of appeal was recently addressed by this Court in Dansie v The Queen [2022] HCA 25. We are not persuaded that there are sufficient prospects of establishing that the majority in the Court of Criminal Appeal misapplied that principle to warrant the grant of special leave to appeal in this case. An extension of time is granted but special leave to appeal is refused.

The Court will now adjourn until 3.00 pm.

AT 2.56 PM THE MATTER WAS CONCLUDED