Smith v The Queen; Ferguson v The Queen; Forti v The Queen; Grimshaw v The Queen; Coburn v The Queen (M34-94; M35-94

[1994] HCATrans 354

/~'I

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M 34 of 1994

B e t w e e n -

DONALD WILLIAM NASH SMITH

Applicant

and

THE .Q..U_EEN

Respondent

Office of the Registry

Melbourne No M 35 of 1994

B e t w e e n -

CHRISTOPHER FERGUSQN

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M 36 of 1994

Smith 31/5/94

B e t w e e n -

JEFFREY FORTI

Applicant

and

THE QQEEN

Respondent

Office of the Registry

Melbourne No M 37 of 1994

B e t w e e n -

RODNEY THOMAS GRIMSHAW

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M 38 of 1994

B e t w e e n -

WILLIAM JOHN COBURN

Applicant

and

THE QUEEN

Respondent

Applications for special leave

to appeal

MASON CJ
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 31 MAY 1994, AT 3.19 PM

Copyright in the High Court of Australia

Smith 31/5/94

MR M.S. WEINBERG, QC: If the Court pleases, in these

applications I appear, together with my learned

friend, MR P.A. DUNN, on behalf of each applicant.

(instructed by Kenna Croxford & Co)

MR D.R. MEAGHER, QC: If the Court please, I appear with my

learned friend, MR P.G. LACAVA, for the respondent

in each matter. (instructed by Mr J. Buckley,

Solicitor to the Director of Public Prosecutions

(Victoria))

MASON CJ:	Mr Weinberg.
MR WEINBERG:	If the Court pleases, the Court has our

summary of argument and I do not propose to turn to

that summary. We thought that in the limited time

available it would be more productive if we simply

addressed in general terms the reasons why we

submit that special leave should be granted and

perhaps address one or two remarks to the

respondent's summary of argument.

If we may say in relation to the first of the

three points that we submit warrants the grant of
special leave, namely the question of jurisdiction,

it is our submission that this case represents the first time in the State of Victoria that the Crown

has brought an appeal to the civil Full Court from

a determination made by a trial judge in the course

of a trial or at least in relation to a proposed

trial putting the matter at its worst from the

point of view of the applicants. We say that there

was no justification for that civil Full Court to

have entertained the appeal. We say that it is

fundamental that if there is no jurisdiction then

for the Full Court to have entertained the appeal

deprived the applicants of substantive rights to

which they were entitled, and their rights - - -

McHUGH J:	Mr Weinberg, is this a suitable vehicle for the grant of special leave? Assume in your favour that
there was a strong argument that the court had no
jurisdiction to entertain the appeal, this would be
a proper case, would it not, to grant the Crown special leave to appeal from the trial judge's orders?

MR WEINBERG:  Not necessarily, Your Honour. We would be

addressing entirely different submissions to the

Court as to why special leave should not be granted

to the Crown, were the Crown to seek special leave.

Of course we have always accepted that the Crown

could seek special leave from the orders pronounced

by Mr Justice Vincent, but there were very sound

reasons, very compelling reasons why this Court
would not grant special leave, in our respectful

submission. We have not had a chance to address

Smith 3 31/5/94

them, we have not addressed them in our written

submissions.

MASON CJ: What are those compelling reasons? Very shortly.

MR WEINBERG:  Very shortly, Your Honour, the Crown case has

presented before Mr Justice Vincent in a

comprehensive 153 page Crown prosecution statement

was entirely departed from before the Full Court,

and we submit that this Court would not grant

special leave to the Crown in circumstances, as a

matter of discretion, where the Crown proposed to,

in effect, run a different case before - - -

GAUDRON J:  Does that not just illustrate the problems

associated with what happened at first instance?

MR WEINBERG:  No, with respect, Your Honour. What happened

at first instance was that the Crown had, pursuant

to a statute in the State of Victoria, the

Criminal Trials Act 1993, as the statute required

it committed itself to a particular form of pleaded

case. In effect the statute requires the Crown to

identify fully and with precision the way in which

it puts its case, the inferences which it seeks to

have drawn from the facts which it says it will

prove, and also any propositions of law upon which

it will rely.

The Crown did put in what was said to be a

very convoluted but none the less detailed

prosecution case statement before

Mr Justice Vincent, and ran the case upon the basis

of a principle in Johns, namely common purpose, the

commission of a primary crime and an incidental
crime as it were, committed in circumstances where

the persons who agreed to commit the primary

offence foresaw the possibility, or contemplated

that the other offence might be committed.

That was what Mr Justice Vincent dealt with,

and although the Crown sought to argue on the

appeal before the Full Court that it had not in

fact committed itself to that particular line, the

Full Court did not accept that argument for one

moment. The Full Court, in its judgment, said

repeatedly that they accepted that the case had

been put on a completely different basis before

Mr Justice Vincent; a basis that

Mr Justice Brooking did not find at all attractive,

but Mr Justice Brooking came up with two new bases

upon which the case could properly be argued.

Now, Your Honours, this Court, in determining whether or not to grant special leave as a

discretionary matter, in our respectful submission

frequently says, "Was this matter argued below?"

Smith 4 31/5/94

We have the strongest arguments, we would submit,

to put to this Court on an application for special

leave, that special leave should not have been

entertained at all and should not have been granted

where the Crown seek to put an entirely different

basis upon which the case was run - - -

GAUDRON J:  But not the case. The point that was taken

below was whether or not a stay should be granted.

MR WEINBERG:  Yes, Your Honour.

GAUDRON J: It is not a case, as you sometimes find, where

you say the prosecution cannot depart from a case.

The question is quite different.

MR WEINBERG:  Your Honour, the prosecution cannot depart

from a case under the Victorian statute without the

leave of the judge. There is an entirely new

situation which has come into existence in Victoria

as a result of this enactment of this new

legislation designed to deal with long, complex

cases; designed to put a stop to what occurs from
time to time, and it is done by way of effectively

creating a set of pleadings to which the Crown

commits itself, and the defence is obliged to plead

to.

MASON CJ: But surely not designed to provide a foundation

for applications for permanent stays.

MR WEINBERG:  Your Honour, with great respect, if the Crown

case, as pleaded, as put, is based upon a

fundamental misconception, as Mr Justice Vincent,

we say, correctly identified, then what else can a

judge do in determining, as he is obliged to

determine, whether or not it would be oppressive

and vexatious for the case to proceed. He cannot

say, with respect, there may be other ways in which

the case can be put. This is the way in which the

Crown puts its case. This is the evidence upon

which is relies. This is the Crown case, at its

best, in this prosecution case stated.

Mr Justice Vincent had that document. He had 8000

pages of depositions.	He had the Crown case at its
highest.	He approaches the matter on the basis

that it is put to him, "This trial is going to run

for something of the order of six months."

We say the Director of Public Prosecutions is

not infallible. He has made fundamental errors.

There are fundamental misconceptions about the law

implicit in charging all of these police officers

simply because they happened to be present at the

scene of an arrest which the Crown says,

objectively speaking, viewed objectively, was an

unlawful arrest. The law has been misunderstood.

Smith 31/5/94

Fundamental principle has been misunderstood and

Mr Justice Vincent says, "I have a power, an

inherent power, to stay a trial if it would cause

vexation, undue oppression, to a particular

accused".

We say, with respect, if that is a finding

which is legitimately open to the trial judge, then

what can he do, what should he do, other than to

say, "That is exactly right. I will grant a

permanent stay in these circumstances. This case

is impossible. It cannot get to a jury. At the

end of the day, at the end of the case, I will take

this case from the jury if it goes ahead".	What
else can the judge do, in our respectful

submission? And His Honour made those orders

granting permanent stays appropriately and what

happened was that the Crown, rather than seeking

special leave to come to this Court, where it

would, of course, face the question of the

exceptional circumstances that would be required

when the Crown seeks special leave, it chose

instead to go to the Full Court.	We say the Full
Court without jurisdiction.

We say we have very powerful arguments for saying that the Full Court does not have the

jurisdiction in question, and we say there are very

important questions at stake here, because, by

granting the appeal, in this case, for the reasons

that the Full Court gave, it has, in effect, opened

the door to all sorts of Crown appeals being

brought against all sorts of determinations made by

trial judges in relation to the conduct of trials.

We are accused of fragmentation, that is not without irony, in our respectful submission. The

decision of the Full Court, in this case, will do
more potentially to bring about fragmentation of

the criminal justice system than any other decision

one would have thought imaginable. It is not only

the defence that produces fragmentation of the
criminal justice system.	When the Crown interrupts

a trial, because it has had a determination or a

ruling with which it is unhappy or regards as wrong

and goes to the full civil court to have that

ruling tested, that is fragmentation of the first

order, and so we say there is a very real and

important question to be resolved.

Your Honour asked me whether this is a

suitable vehicle; it is the first time it has

happened, Your Honour. It is the first time that
this power has been exercised pursuant to what was

said to be the decision in Boehm's case which we

say was wrong, and we say it is strongly arguable

that that decision was wrong.

Smith 6 31/5/94

McHUGH J: But, it seems to me, at the moment, that you have

quite a strong case for arguing that the court had

no jurisdiction - - -

MR WEINBERG:  Yes, Your Honour, we do, with respect.

McHUGH J: But, the question is whether the Court should

take this particular case on to resolve that point

when there is, out on the wings at least, a

potential application for special leave to appeal

by the Crown - - -

MR WEINBERG: Well, that is in terrorem, if Your Honour

pleases. The Crown has put into their written

submissions the prospect that they will seek

special leave out of time if this Court grants

special leave to us. That is a prospect,

Your Honour, that we face with equanimity. We

simply say that we will, given an opportunity,

present to this Court reasons why this Court should

not grant special leave to the Crown. It is not

for the Crown to - - -

MASON CJ:  I think His Honour is suggesting to you that you

may face it with equanimity, but he is not facing

it with equanimity.

MR WEINBERG:  Your Honour, we are only asking for 20 minutes

of the Court's time, at the end of the day. If we

are right, and our clients have had their rights

taken from them in a manner which defies and

breaches the rule of law, then we are entitled to

have that set right.

GAUDRON:	What rights?
MR WEINBERG:	The right to a permanent stay being upheld,

Your Honour. The right to the orders pronounced by

Mr Justice Vincent remaining in form and intact

until a properly constituted court sets them aside, and the Full Court had no business doing that, with

great respect.
May I do it this way, Your Honours. one case that I have not put on our list that I	We have

would like to provide to the Court, if I may, just

on this one point, and it is a passage from a

judgment of Mr Justice Brennan, a recent decision

of this Court in P & P, decided on 20 April 1994.

If I could provide a copy to my learned friends.

It is now reported in the Australian Law Reports.

McHUGH J: It is a dissenting judgment, though, is it not?

MR WEINBERG:  It is a dissenting judgment but not on this

point, Your Honour, we would submit. The principle

that is set out in Mr Justice Brennan's judgment,

Smith 31/5/94

at page 568, encapsulates, in a way that I could

not hope to, what we say is fundamental about a

court wrongly assuming jurisdiction, and it is set

out at page 568, the bottom paragraph:

The principle that no new power should be

assumed by a court is not a mere relict of

antiquarian law ready for overturning. It is

at the heart of political and constitutional

theory, the separation of powers, and thus an
important guarantee of a free society. If
courts were able to assume powers, which are

neither part of their inherent or traditional

jurisdiction, nor part of a jurisdiction

conferred by the legislature, the assumed

powers would be despotic, uncontrolled by

legislative prescription or other law.

And that last sentence, in our respectful

submission, encapsulates why we say we have a right

to the decision, the judgment of

Mr Justice Vincent, until it is set aside by a duly

constituted, properly authorized court. It is no

less fundamental than the rule of law, which we

invoke when we say, to this Court, that if the

Full Court had no jurisdiction to deal with this matter, then that should be set aside, and we are

fortified in that submission because the judgment

of the Full Court will produce fragmentation, will

open up Crown appeals in circumstances where they

were plainly not intended, and we have a strong

argument, in our respectful submission, that our

construction of this statute is correct. The

ordinary and natural meaning of the statute carries

with it not the artificial construction adopted by

the court below but the one for which we contend.

But that is only one of three separate points that

we take.

McHUGH J:  I appreciate the force of what you put, but the

Court is not a purely appellate Court.	We just
cannot take on every case where we think that there

is a arguable case of error.

MR WEINBERG:  Of course that is right, and we accept that

that is right. We simply say that there has been

an irregularity of such proportions here that a

decision, permanently staying a trial in favour of

our clients, which is of fundamental importance, it

is a matter of substantive rights, so far as they

are concerned. They are not going to have to go

through a six month trial upon a wholly

misconceived basis when a judge has properly found,

we say, that the trial is wholly misconceived. It

is a matter of the utmost importance, of course, to

them. We have an appeal brought to the wrong

court, we say, by the Crown.

Smith 31/5/94

We do not oppose the fact that the Crown can

come back to this Court and take 20 minutes of this

Court's time in an effort to persuade this Court to grant special leave, but that is a small price to

pay when balanced against the violation that is

done to the rule of law if this Court does not

interfere when there is a strong arguable case that

the court below which set aside Mr Justice

Vincent's judgment had no authority whatever to do

that. We cannot do any more than say we come to

this Court to vindicate genuine rights which we are

entitled to hold. We are not phased by the in

terrorem argument and we say at worst it creates a

20 minute problem at the end of the day. This

Court should, with respect, declare the law as it is and as it should be for Victoria, in our

respectful submission.

Our second point, with great respect, is as important as our first point.	We have a new
situation in this case.	We have, of course, an

unusual case and that normally counts against the

grant of special leave, but an unusual case which

throws up a problem which we say will recur

increasingly in the future. The fact of the matter

is that trials are becoming longer and we now have

the phenomenon which we never had before, of trials

which run for six months, or twelve months, or

longer.

There has to be a capacity, we say, on the

part of a trial judge to view the case at the

outset and say to the Director of Public

Prosecutions, "I am sorry, but you have totally

misconceived the relevant principles and you cannot

get this case to a jury. Not that the case is

weak - no misapplication of the principles laid

down in May v O'Sullivan, Zanetti or Doney's case

in this Court - not that the case is weak or

tenuous, but that there is no case. I will sit

here for six months and you will call this evidence

and every witness will give evidence, and at the

end of six months the liberty of each of these

accused having been taken from him whilst this

trial goes on, I will take this case from a jury

and do so properly."

That has to be a situation in which we say,

and this Court itself said in Walton v Gardiner,

where the prosecution is relevantly foredoomed to

failure. It is an abuse of process for the trial

to be permitted to proceed.

What Mr Justice Vincent did in this case was

impeccable. Each and every finding that His Honour

made in relation to inferences, in relation to the

test that was applied, the application of the

Smith 9 31/5/94

no case submission test right at the outset of the

trial, we submit was impeccable. The Full Court,

however, said that His Honour did not apply the

correct test, he applied merely the no case test.

He should have applied a stricter test and the

court laid down that stricter test in terms which

we say practically make it impossible for that test

ever to be met.

MASON CJ: What do you say, "clearly foredoomed to failure"

means?

MR WEINBERG: 

Your Honour, we went to the dictionary and

found that the word, "foredoomed" was an archaic
term and the Oxford Dictionary gave us some

assistance, but it means that the case will fail -

must fail.

MASON CJ: 

You mean, that is all it means - - -

MR WEINBERG: That is all it means.

MASON CJ:  - - - that the case will fail so that if this

approach be correct, the approach taken by

Justice Vincent be correct, a large number of

prosecutions will open up with an application for a

permanent stay on the basis that there is no case?

MR WEINBERG:  Your Honour, I could have inserted the word,

"inevitably" fail. Will fail does not mean on the

probabilities will fail. It does not mean that it

is more likely than not that the case will fail.

It means will certainly fail. That is what

Mr Justice Vincent did. He said this case will

certainly fail, but the Court of.Criminal Appeal

said that is the test that - if you like, that is

the wrong test that Mr Justice Vincent applied.	He
applied the test that exists on a no case
submission.	He has analysed the case from the

point of view of taking the evidence for the Crown

at its highest.	He has looked at inferences
correctly, all those things, but it is the wrong
test.	The court said you need something which is

stronger than that, more onerous, more rigorous.

We say in our submissions that we have to remember that the principles in civil and criminal cases are

thing to do. This Court has, of course, many times

not the same. Taking a case away from a jury under

seen the difference between a no case submission

and unsafe and unsatisfactory submission and the

Court was just dealing with that matter earlier

today, as we understood the matter.

We simply say the court has applied the wrong

test. It has made it a more onerous test, one that

requires the court to be able to look at the

Smith 10 31/5/94

material and just say, this is utterly hopeless;

on its face some idiot drafted this presentment. It

is, in effect, the kind of test that the court has

laid down, a test that can never be met.

The third matter is as fundamental as our

first matter because what Justice Brooking did in this case and what the other members of the court

have endorsed is to fundamentally, we say, change

principles that have been well established now, we

submit, for a long time since Mr Justice Smith

enunciated the principles of concert and aiding and

abetting in Lowrey and King and we have identified

the passages in question. Mr Justice Brooking has

in effect said that the Crown totally misconceived

the case in its first version, it was too

convoluted, it elevated the question of whether

there was a unlawful arrest or not to a point which

it did not deserve and did not merit. But

Mr Justice Brooking said there are other ways not hitherto discussed below which can justify a

conviction of murder.

The most peculiar thing about the respondents'

submissions in this case is that, if anything, they

are more critical of the judgment of the Full Court

than we are because they disavow much of what is

said by Mr Justice Brooking. They claim firstly

that Mr Justice Vincent did not understand the way

they put the case, so they were misunderstood by

Mr Justice Vincent, then they claim that
Mr Justice Brooking has misunderstood their

arguments and they seek to resile from some of the

things that Mr Justice Brooking has attributed to

them as being arguments and say they were not put

by them and it is not their case.

This is a case that has shifting goalposts

backwards and forwards but, at the end of the day,

the critical question is:  how can this case be

put? Mr Justice Brooking and at least one other

member of the court has said it can be put on a

basis where there is not even an agreement to do an

unlawful act, putting aside the question of whether

there has to be an appreciation on the part of

these accused that the act was unlawful. Our

clients at the end of the day were present at the

scene of an arrest and they have all been charged

with murder, everyone who -

GAUDRON J: There is a bit more than that in the Crown case

though, is there not?

MR WEINBERG:  They were present at the scene of the arrest.

GAUDRON J: There is something more than that in the Crown

case.

Smith 11 31/5/94

MR WEINBERG:  Not very much, Your Honour, with great

respect. The agreement that is alleged against

them was to effect an arrest and to be party to an

arrest -

GAUDRON J:  An agreement to effect an arrest, yes; that was

the agreement.

MR WEINBERG:  - - - an arrest which objectively and with hindsight is said to have been unlawful.

GAUDRON J: That might well be a matter of argument as the

evidence unfolds, might it not?

MR WEINBERG: But, Your Honour, even if it is, even if with

hindsight the arrest is unlawful, you do not come within a long distance of being able to establish

what Mr Justice Smith said was the fundamental

principle in concert, and that is that there be an

agreement or understanding between the parties who

were said to have acted in concert to do a criminal

act. This is a murder without mens rea that the Crown are running. Mr Justice Vincent perceived

that that was so and accordingly stayed it. If the

Court pleases.

MASON CJ: Thank you, Mr Weinberg. Mr Meagher.

MR MEAGHER:  If .the Court pleases, we seem to be the

constant butt of allegations that the Crown is

changing its case. The Crown has not changed its

case, and I just have to keep saying that as it is

repeatedly put.

The Crown case is that eight policemen armed

with weapons set upon Jensen, the victim,
threatening him that if he did not submit to their

wishes they would shoot, and they did shoot as he

tried to escape. The Crown case is they had no

lawful authority to do that and no excuse in law to

do it. That has been the Crown case from the

beginning; it remains the Crown case against these
accused.	Now, that has never changed, it is not
going to change.	It is the way the Crown will go

hopefully to the jury at the end of the day.

What we have said in our answering submissions

on that issue is that if we are constrained, or

seen to be constrained by the observations of the

Full Court to not put our case that way, then this

Court ought to seriously contemplate special leave

to put it right. But, in our submission, an

examination of what Mr Justice Brooking said and

what Mr Justice Eames said does not impose any such

constraint.

Smith 12 31/5/94

McHUGH J:	But there is an anterior problem from your point of view, is there not, and that is whether the Full
Court had jurisdiction to entertain this application at all.
MR MEAGHER:	Yes, Your Honour.
McHUGH J:	And I would have thought that there was a very strong argument against you on that basis.
MR MEAGHER:	Yes, Your Honour, and we have advanced in our

written submissions those considerations that we

say the Court should take into account in not

giving special leave on that in this instance. It

is a matter of domestic concern to Victoria. It is

a matter which a Full Bench of the Victorian court

could put right if it is wrong. There was an

invitation for that to be done in this case. It

was not taken up and availed itself of. It is a
matter which the Victorian legislature itself could

put right if it does not like the interpretations

that have been given by the Victorian court.

MASON CJ: But if it is prima facie arguable that the

Full Court has wrongly exercised jurisdiction, why is it not a matter that we should attend to?

MR MEAGHER: For the reasons I have just advanced, if

Your Honour pleases.

McHUGH J: 

The legislature might be able to fix up the

general problem, but if the applicants' arguments
are correct, and the trial judge's argument was

correct, it would mean these applicants would be

forced to undergo a criminal trial in circumstances

where they should not be undergoing a criminal
trial, because the court had no jurisdiction to

make the order putting them on trial after

Justice Vincent's order.

MR MEAGHER: Well, as the law stands in Victoria at the

moment, following the decision in Boehm, the court

does have that jurisdiction.

McHUGH J:  I appreciate that, but I am putting to you that

this is a case where the Court should grant special
leave not withstanding that the Victorian

legislature can deal with the problem generally.

Unless it is going to pass a retrospective piece of

legislation, it will not assist these applicants.

MR MEAGHER:  No, that is true, Your Honour, and that is so

far as the legislature is concerned. It was, as I

have indicated, a matter which the Victorian court

has within its own power to do.

Smith 13 31/5/94

McHUGH J: Well, why should we not grant leave and let you

take your chance as to whether you can get a grant

of special - - -

MR MEAGHER:  Because that will just further delay these

proceedings. They have already been delayed quite

considerably.

McHUGH J: But, Mr Meagher, it might be put against you that

if you had applied directly to us for special

leave, this problem would not have arisen.	What
delayed the proceedings is you going to the
Full Court.

MR MEAGHER:  We could hardly, in the light of the decision in Boehm, come up to this Court.

McHUGH J: Well, this Court has still got jurisdiction.

MR MEAGHER:  It might have, Your Honour, but we would be

very quickly met by being said, "Well, why did you

not take the path that Boehm says you can take".

MASON CJ: Yes, I think that is correct, and we have

discouraged applications directly to this Court

from a single judge.

MR MEAGHER:	And that is something else we have put into our submissions, namely that it is in the interests of
the administration of criminal justice that there
be an intermediate appellate court, so that it is
not a process which is inimicable to the proper administration of criminal justice. If the decision in Boehm is wrong, presumably the Victorian Parliament would eventually put it right
because each State, as we understand it, does allow
in stay applications, the intermediate court to
have jurisdiction.  So there is strong
policy - - - -

MASON CJ: But Mr Meagher, it does seem to me to be a

serious course for this Court to take to refuse

special leave if the Court comes to the conclusion

that prima facie there has been a wrong exercise of

jurisdiction, with an adverse impact on the

applicants.

MR MEAGHER: Well, Your Honour, I cannot say to you that it

is not arguable that the court in Boehm is wrong

and we would argue that its decision is correct,

but I cannot contend that it is beyond argument

that it is wrong; there is an argument there that

is wrong. I do not wish to be heard to be putting

it, that is to say there is no such argument. What

we have put in our submission is what we believe we

can put as to the reasons why special leave on that

ground should not be granted.

Smith 14 31/5/94

So far as Your Honour Mr Justice McHugh is

concerned, in one of the matters you put to me was

if Mr Justice Vincent was right.

Mr Justice Vincent imposed upon us the duty or

obligation or onus of proving that the accused suffered no misapprehension as to the law. If

there is the slightest suggestion that that is a

correct view of the law, then it is time this Court

did hear that issue, because that would impose, in

criminal trials, an entirely new -

McHUGH J:  You have not got a special leave application on

yet? You have not made a special leave - - -

MR MEAGHER:  No we have not, until we have heard what the

outcome of this is, but we have given notice that

we would if this Court were minded to give it on

the Boehm point, because that would change the face

of the administration of criminal justice, if we

had to embark upon proving the accused had no

misapprehension of the law at all.

That would be a very serious matter. It would

be a matter which we would hope the Full Court

would have addressed in more specific terms than it

did, but Mr Justice Brooking, in one or two lines,

appeared to say that Mr Justice Vincent was wrong

on that, and Mr Justice Eames certainly did. So on

that issue we would say that it is not immediately

apparent that Mr Justice Vincent was right; quite

the contrary it would appear, on the authorities of

this Court, to state that he is quite wrong. I

think that is about all that we wish to really put

to the Court on this matter.

MASON CJ:  Thank you, Mr Meagher. Do you wish to say

anything in reply, Mr Weinberg?

MR WEINBERG:  No, there is nothing that we can usefully add,

Your Honour.

MASON CJ:  The Court will take a short adjournment to

consider the matter.

AT 3.48 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.50 PM:

MASON CJ: There will be a grant of special leave in these

applications.

Smith 15 31/5/94

MR WEINBERG: If the Court pleases.

MASON CJ:  The Court will now adjourn.

AT 3.50 PM THE MATTER WAS ADJOURNED SINE DIE

Smith 16 31/5/94