Solomon v The Queen

[1991] HCATrans 200

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S71 of 1990

B e t w e e n -

EDDIE SOLOMON

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
GAUDRON J

McHUGH J

Solomon 1 7/8/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 AUGUST 1991, AT 12.17 PM

Copyright in-the High Court of Australia

MR G.J. LUNNEY: If it please the Court, I appear for the

applicant in this matter.	(instructed by Farrell
Lusher)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR W. ROSER, for the

respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

MASON CJ: Yes, Mr Lunney.

MR LUNNEY:  If the Court pleases, the applicant in this

matter stood trial in New South Wales in 1987. He

was convicted. For most of the trial he appeared

in person. In April 1989 he sought leave to appeal

to the Court of Criminal Appeal in New South Wales;

his appeal was heard and determined on

15 November 1989. The formal order of the Court of

Appeal appears at page 56 of the appeal book and

the decision of the court was that the appeal be

upheld, that the conviction be quashed and that the

sentence be set aside.

The appellant, the applicant in this Court,

had appealed on a large number of grounds to the

Court of Criminal Appeal and he had presented his

case himself at the hearing. The Court of Criminal

Appeal decided the case on one ground only and that

was the direction, or the standard of proof, that

was contained in the trial judge's direction.

At page 49 and 50 of the appeal book, at

line 30, there was an indication that the court, in

its judgment, dealt with only one ground of appeal

and that was the standard of proof direction.

Again, at line 54 on page 50, the court refers to

the single relevant ground of appeal.

I understand that this application is not

opposed and short minutes of order have been

prepared which I would seek to hand up. The short

minutes of order have been prepared along the lines

of the order of this Court in Jones v Reg, (1988)

166 CLR 409.

DEANE J: There were grounds which, if upheld, would

inevitably have led to a quashing of the conviction

wi~~out any trial?

MR LUNNEY: In this case, Your Honour?

MR LUNNEY: In this case, Your Honour?

DEANE J: Yes. That is what -

MR LUNNEY: Arguably, Your Honour, yes. There were 85

grounds of appeal in all, I understand, that were

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contained in the notices of appeal to the Court of

Criminal Appeal.

DEANE J:  I glanced through them. I did not see any that

plainly would have led to an unqualified quashing

other than "unsafe and unsatisfactory". Is that

the one that you -

MR LUNNEY: Well, Your Honour -

DEANE J:  You follow the point I am raising, and that is

that it would be quite pointless for us to quash

the decision of the Court of Criminal Appeal and

send it back if the only grounds that were then

argued were grounds which would in any event lead

to a new trial on the approach which the Court of

Criminal Appeal adopted.

MR LUNNEY:  Yes, Your Honour.

DEANE J: For that reason, I was asking whether there were

grounds which it was desired to argue which, if

pressed, would lead to an unqualified quashing of

the conviction.

MR LUNNEY:	Your Honour, one of the matters that is raised in the affidavit in support of this appeal is the
possibility that, if the matter is remitted back to
the Court of Criminal Appeal, the matter would not,
in fact, be remitted for a new trial. So that on
that ground it would be warranted, in my
submission, for this Court to remit the-matter back to the Court of Criminal Appeal, because that is a
possibility.  The deponent, the applicant, refers
to having - - -

BRENNAN J: What is the utility of the order?

MR LUNNEY:  The utility is the possibility that the

applicant will in fact not stand trial again and he

will have the opportunity to argue before the Court

of Criminal Appeal the grounds that he advanced in

his original appeal document.

DEANE J: Well, ground 9 would seem to - if it is desired to

press it - be the sort of ground I was asking you about, but I do not know whether it is desired to

pr~~s it if we send it back.

MR LUNNEY:  Your Honour, my instructions are that all

matters would be pressed. Upon looking through the

grounds of appeal, they are matters of differential

prospect, I suppose, but the utility would be the
prospect of having the court rule on those grounds
which are tenable and also the possibility that, in

the opinion of the Court of Criminal Appeal, there

Solomon 7/8/91

may not be a new trial. Could I hand the short

minutes of order to the Court?

MASON CJ: Yes, you can, Mr Lunney. Mr Solicitor, do you

wish to say anything about this matter that has

been raised by Justice Deane as to whether the

outstanding grounds of appeal might result in an

order that did not involve a new trial?

MR MASON:  Your Honours, there are in fact 85 grounds and

they are in two sets. I assume Your Honour

Justice Deane was referring to the second set,

ground 9 on page 42.

Without conceding the merit of any of the

grounds in substance, some of them - and looking at

the second set, 9, 15, 18 and 33, just for

example - would appear to be grounds which, if

successful, would lead to an unqualified acquittal

on the indictment on which he stood charged.

It was thought that, rather than have this

Court concerned with a lengthy examination of all the issues, it was more appropriate to indicate upfront that perhaps it was unfortunate the Court of Appeal ran for the line as they saw it, but unfortunately did not score a winning try.

DEANE J:  When you see the 85 grounds, it is not surprising

that they were tempted to do that.

MR MASON:  Yes. The appeal took, I understand, about five

minutes.

MASON CJ: Very well, the Court will make orders in terms of

the short minutes of order which I have initialled

and placed with the papers.

MR LUNNEY: If the Court pleases.

AT 12.26 PM THE MATTER WAS ADJOURNED SINE DIE

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