Spathis v the Queen S150/2002

[2002] HCATrans 566

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S150 of 2002

B e t w e e n -

ALEXIOS SPATHIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 10.47 AM

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC:   May it please the Court, I appear with MR W.P. LOWE, for the applicant.  (instructed by Patricia White & Associates)

MR G.E. SMITH:   If your Honours pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Bellanto.

MR BELLANTO:   Your Honour, firstly I seek to leave to proceed with the application in view of the late filing of the notice of appeal.

GLEESON CJ:   How late was it?

MR BELLANTO:   It was a number of months, your Honour.

GLEESON CJ:   Is this opposed?

MR SMITH:   No, your Honour.

GLEESON CJ:   Yes, you have that leave.

MR BELLANTO:   If the Court pleases.  If your Honours pleases, three discrete issues are raised in the application; two concerning the public importance of these matters in the administration of criminal justice in Australia, the third matter involving the particular miscarriage of justice in this instant case.

The first issue can be put thus.  Whether in murder trials in New South Wales, where the prosecution case is predicated on differential bases of liability, namely specific intent to kill or cause grievous bodily harm and felony murder, the indictment should be expressed in the alternative or the jury directed that they must be satisfied beyond reasonable doubt of the guilt on either, before the accused can be convicted.

GLEESON CJ:   In order to succeed, will you need to persuade us to overrule the decision in Serratore?

MR BELLANTO:   No, your Honour.  Serratore is a different type of case to this.  Serratore was a case that did not have felony murder as one of the bases for the Crown argument.  So in that sense it is a different factual case from the case before the lower court and this Court.

GLEESON CJ:   Now, what is so special about felony murder, except that manslaughter does not run?

MR BELLANTO:   Felony murder involves a foundational crime and does not involved a specific intent to kill or cause grievous bodily harm.  That raises a problem in this case because the jury may not be satisfied that there was the specific intent to cause grievous bodily harm or kill and, accordingly, there could not be a conviction on the first limb of the argument presented by the Crown in this case.  The jury may be satisfied that either 11:1 or unanimously that it was a felony murder case.  That does not require proof of specific intent, and that is why there is the distinction between Serratore and this particular case.

GUMMOW J:   What do you say about Justice Carruthers’ statement at page 441, paragraph 275, which is made in the light of the very specific written formulation that was agreed here, which appears also in his Honour’s judgment at 417.  See at paragraph 275?

MR BELLANTO:   Yes, I do, your Honour.  Thank you.  That raises ‑ ‑ ‑

GUMMOW J:   It is a bit compressed, nevertheless.

MR BELLANTO:   Yes.  The difficulty is one does not know, and that is the problem with a compendious definition of murder as in section 18 of the Crimes Act.  When the Crown indicts a case alleging murder without specifying the particular aspect of the definition that the Crown relies on, the difficulty when a verdict of guilty is returned is that one just does not know ‑ ‑ ‑

GUMMOW J:   Well, you do not know what the actus reus is, I suppose.

MR BELLANTO:   No.

GLEESON CJ:   When you say, “one does not know”, you mean the sentencing judge does not know?

MR BELLANTO:   Or the accused.

GLEESON CJ:     Is it a problem of sentencing?

MR BELLANTO:   No ‑ well, it can be.

GLEESON CJ:   The problem of sentencing has been dealt with by this Court in Cheung, has it not?

MR BELLANTO:   Yes, but it is more fundamental than that.  If a person is being tried by a jury and say, for arguments sake, 11 members of the jury or 12 members of the jury decide it is felony murder and are not satisfied beyond reasonable doubt that it is specific intent murder, then that raises problems in that ‑ ‑ ‑

GLEESON CJ:   This is what I am trying to get at.  The problem that you want to put is not one relating to sentencing, it is a problem relating to unanimity.

MR BELLANTO:   Correct.  Yes, your Honour, that is our point.

GLEESON CJ:   So what do you say is the consequence if six jurors think he was guilty of intent, murder with intent, what in at least one of the States they call “wilful murder”, and six thought he was guilty of felony murder, how do you relate that to the last sentence of paragraph 275 of Justice Carruthers?  It means they are being unanimous about felony murder, does it not?

MR BELLANTO:   Not necessarily.

GLEESON CJ:   But if Justice Carruthers is right when he says, “You couldn’t have been satisfied of the ingredients of what I’ll call wilful murder without necessarily being satisfied of the ingredients of felony murder.”  Therefore, in the example that I have given, you have 12 of them who are satisfied of the ingredients of felony murder.

MR BELLANTO:   The difficulty is one does not know.  I think it is difficult to reason on that basis because, for example, in other States and in the Territories the differential bases that appear in section 18 are teased out under different sections.

GLEESON CJ:   Yes, in Western Australia they have a crime of “wilful murder” and another crime of “murder”.

MR BELLANTO:   Yes.  So in those circumstances one ‑ ‑ ‑

GUMMOW J:   It is probably different in Queensland too, I think.

MR BELLANTO:   In Queensland section 302 of the Code refers to “unlawful purpose likely to endanger life”.

GLEESON CJ:   In order to get your argument off the ground in the present case, you have to contradict the concluding sentence of paragraph 275, have you not?

MR BELLANTO:   Well, we do not agree that that necessarily follows in the context of the way the indictment has been presented and relied on and, more particularly, the problem that is thrown up by section 18 would not normally arise in other jurisdictions because of the way the sections are teased out; separating felony murder or a version thereof from specific intent murder.  That is why we say it is unfair to proceed in circumstances as the prosecution proceeded in this particular case.

GLEESON CJ:   Just let me be clear about this, Mr Bellanto.  The thing that makes the present case special from your point of view that the two alternatives realistically facing the jury were wilful murder and felony murder.

MR BELLANTO:   Yes, your Honour.

GLEESON CJ:   This is not a case where, for example, there might be murder on the basis that the accused killed the victim or murder on the basis that the accused hired an assassin to kill the victim.

MR BELLANTO:   Correct.

GLEESON CJ:   That is a different situation.

MR BELLANTO:   It is.  And that is the type of reasoning in Serratore, and I think it is the type of reasoning in the Canadian case of Thatcher that has been referred to.  We say this case is quite separate from that.  May I, having mentioned Leivers, invite the Court to go to Leivers.  There is a very short passage that I rely upon at page 186 point 7 in the judgment of Lamer J, which we say encapsulates the point we make on this first limb of our argument.  It commences with the words ‑ about two‑thirds of the way along the line, “If the Crown presents evidence”, 186 point 7 and concludes with the word “inconsistent” at the bottom of that page.

GUMMOW J:   Do we not have to read that with the Code in mind?  What were the particular provisions of the Code?

MR BELLANTO:   The particular provisions of the Code – perhaps if I can answer your Honour Justice Gummow by referring to Thatcher.  In essence, it is the point of principle that we rely upon in Leivers.

GLEESON CJ:   Can you go to page 188, the first complete paragraph on that page?

MR BELLANTO:   Yes, your Honour.

GLEESON CJ:   The sentence beginning, “When more”.

MR BELLANTO:   Yes.

GLEESON CJ:   If you accept that sentence as correct and then you relate it to the concluding sentence at paragraph 275 in the judgment of Justice Carruthers, where does that leave you?

MR BELLANTO:   The important words are, “do not involve materially different issues or consequences” in the penultimate line of that extract your Honour the Chief Justice referred to, because in this case there are materially different consequences and circumstances.

GLEESON CJ:   But what Justice Carruthers has said, rightly or wrongly, is that in the present case nobody could be satisfied consistently with the instructions they were given about his guilt of wilful murder, if they were not also satisfied of the ingredients of felony murder.  Therefore, if there was a division in the jury of the kind you postulate, they must all have been satisfied of the ingredients of felony murder.  Is that wrong?

MR BELLANTO:   I come back to what we said earlier.  One simply does not know, and an accused in these circumstances is entitled to know on what basis he has been found guilty.  Whether the jury find that he intended to kill or cause grievous bodily harm, or whether there was no intentional killing but there was simply a finding that he was taking part in a felony, the object of which in this case was robbery with wounding.  So boiling it right down, that is the problem that section 18 throws up, and it is an unfair consequence to an accused to be found guilty on that basis when one simply does not know without asking the jury of course, or without giving the jury an appropriate direction that would sever or explain to the jury the different bases and the requirement of proof beyond reasonable doubt.  That goes to the question your Honour the Chief Justice referred to earlier about unanimity.

GUMMOW J:   Is there statutory provision in New South Wales entrenching unanimity, as it were?  There is for example in Queensland.

CALLINAN J:   Justice Pincus referred to the Jury Act.

MR BELLANTO:   Yes.

GUMMOW J:   Section 59 in Queensland of the Jury Act.

GLEESON CJ:   There is no provision for majority verdicts in New South Wales, is there?

MR BELLANTO:   There is no majority verdicts in New South Wales, your Honour.  It is unanimous.

GUMMOW J:   Is there any statutory reproduction of the common law notion of unanimity?  That is what I am asking you.

MR BELLANTO:   I am not sure at the moment.  I think it is in the Criminal Procedure Act but I just cannot bring it to mind.

GLEESON CJ:   There must be some basis for it ‑ ‑ ‑

MR BELLANTO:   I am sure there is.

GLEESON CJ:   So say you so say you all.

GUMMOW J:   It is for that principle, that it is a common law one or a statutory one you are complaining, is it not?

MR BELLANTO:   Yes.  Your Honours, can I move to the second ‑ ‑ ‑

GUMMOW J:   Unanimity about what?

MR BELLANTO:   That is the crux of the problem.  Our argument is that ‑ ‑ ‑

GUMMOW J:   The case has been talking about liability.  They mean guilt I think.

MR BELLANTO:   Yes, your Honour.  Can I move to the second issue, and that can be put thus.  Are exculpatory statements such as, “I was not there”, “It’s my money from work”, “I don’t know about a murder”, even if shown to be false, adverse to the accused’s interests at trial and therefore an admission within the meaning of the dictionary definition in the Commonwealth and New South Wales Evidence Acts or, put another way, is a statement exculpatory on its face adverse to the interests of the accused or can the addition of other circumstances import that quality?  These questions have been the subject of judicial appellate opinion in Australia.  For example, in the Federal Court and the Queensland Court of Appeal there is a view, and in New South Wales the authorities are of a different persuasion.  Similar questions have been considered by the Court of Appeal in England.  Our argument is that we require this Court’s intervention to settle the divergence of opinion.  The instant application is involved ‑ ‑ ‑

GLEESON CJ:   Can you show us the conflicting authorities ‑ in the most pointed way, the conflicting authorities?

MR BELLANTO:   Yes, your Honour.  Can I take your Honours to the case of GH that your Honours have on the Bench.

GLEESON CJ:   Yes.

MR BELLANTO:   In GH, which was a Federal Court decision where the court comprised Justices Spender, Miles and Madgwick, if your Honours would go to paragraph 9 first of all, and 10 on page 6, where Justice Spender, who agreed with the judgment of Justice Miles, said:

The central question is whether the statements to the police officers by GH were admissions within the meaning of the Act.

The Act of course relevantly there was 84 of the Evidence Act which was being considered.  Then on paragraph 15 and following, his Honour sets out the questions and at paragraph 17 his Honour said:

The view expressed above is contrary to the view of the majority of the Full Court of New South Wales Court of Criminal Appeal in R v Duff, R v Horton and R v Esposito ‑

and his Honour in paragraph 18 referred to the English case of Ajit Sing Sat‑Bhambra.  At paragraph 19 his Honour referred to the Queensland case of Clarke, and there following his Honour quoted extensively from the remarks of de Jersey CJ in Clarke and McPherson J.  Conveniently, his Honour, in those various paragraphs, encapsulated the conflict in the authorities that we referred to.

I notice the light is on, your Honours, and I will just conclude with inviting your Honours to consider one other matter, and that is the expression “objection over admission” that was referred to by the court below and is referred to in the case of Reed, a New South Wales case.  We say those considerations must clearly relate to the investigatory process and the legislation is designed to protect an accused from interviews that are not recorded.  To say that an objection must be taken at trial relevant to those provisions, flies in the face of the intention of the legislature when enacting those types of provisions.  So to say, “Well, unless the objection is made, the evidence goes in” really flies in the face of what was the intention in the legislation to these provisions in the first place.

The real problem in this case under the second limb is that the lies were admitted.  The legislation is mandatory exclusion, and they were admitted, according to the reasoning of the court below, because there was no objection in the trial.  We say that that does not solve the problem.  The problem arose by reason of the lie as to the police not being recorded in the first place, and that is a clear breach of section 108, or formerly 424A of the

Crimes Act.  By reason of those factors ‑ and I should say, your Honours, that the lies only came out ‑ defence counsel were content with no Edwards direction on the lies to the police because there was the agreement between the Crown and the defence that they would only be used generally as to credit and they would not go to the guilt.  But once the co‑accused, having dispensed with his counsel, who refused to cross‑examine in accordance with 1000 page questionnaire provided to him by the co‑accused, once the co‑accused became unrepresented he then had a carte blanche approach to cross‑examination which brought out the lies under the umbrella of consciousness of guilty.

GLEESON CJ:   Thank you, Mr Bellanto.  Yes, Mr Smith.

MR SMITH:   If the Court pleases, so far as the first ground is concerned, we submit this Court has previously refused special leave in Serratore and in Cramp and although neither of those matters dealt with felony murder, felony murder still comes within section 18 of the Crimes Act, the definition ‑ ‑ ‑

GUMMOW J:   Why did you go in for this overcharging?

MR SMITH:   I beg your pardon, your Honour?

GUMMOW J:   Why is all this overcharging?

MR SMITH:   Well, I suppose where ‑ ‑ ‑

GUMMOW J:   It produces a mess like this.

MR SMITH:   It can, and perhaps other Crown Prosecutors may have been more conservative, but of course we do not know how the trial is going to pan out at the time of the charging; whether there will be separate trials initially or not ‑ there were not.

GLEESON CJ:   And you have some victims in the back of the Court, or relatives of victims.

MR SMITH:   Yes, you have those matters, and this case did arise out of a sting as it were, a robbery, and the poor deceased was in the middle of the seat of the truck and the accused were on each side, and it appears probably the jury would have found that both of them were involved in the actual stabbing.

GLEESON CJ:   Yes.

MR SMITH:   But, nevertheless, we submit that what we have done here is in accordance with practice that has existed for many years, and which courts such as this Court have never said cannot be done.  It comes within the definition of murder.  My friend’s argument seems to be that because the accused does not know the basis upon which he is convicted, to some special injustice that requires intervention by this Court.

GUMMOW J:   Convicted of what, you see?

MR SMITH:   He was convicted of murder, and that is where all those bases that were put by the Crown, as in Royall there were three different bases put.  In the second Serratore trial there were three bases put.  One of them involved recklessness, which does have some different considerations.  We submit that because the evidence was capable of satisfying all those bases, depending on which way the jury looked at the evidence, then no injustice has been done and that the law has been followed.  So far as ‑ ‑ ‑

GUMMOW J:   Now, assume just for a minute these were federal offences.

MR SMITH:   Federal offences?

GUMMOW J:   Yes. How would this square with section 80 of the Constitution, when it has been interpreted to require unanimity?

MR SMITH: Your Honour, I must admit that I am not an expert on section 80 of the Constitution, but if you look at Cheung ‑ ‑ ‑

GUMMOW J:   Well, it helps throw up the problem of what is meant by “unanimity”.  It is not a question of being an expert in something.

MR SMITH:   Well, except that the authorities do say ‑ and this Court adopted this in Cheung ‑ the juries may arrive at their verdict by different methods, as long as proper directions have been given to them, as long as the elements of the offence have been established.  Cheung was a federal case, and in Cheung this Court followed the principles set out in Isaacs, whilst dealing with sentencing, do look at the question of juries arriving at their conclusion by different tracks.  We submit there is no difference here, in effect.

GLEESON CJ:   Juries are instructed that what they have to be unanimous about is the elements of the offence.

MR SMITH:   That is right.

GLEESON CJ:   They do not have to unanimously believe every witness or be unanimous about the witnesses they believe.

MR SMITH:   Yes.

GLEESON CJ:   But the argument put against you in the present case is that the elements of felony murder were different from the elements of what I have loosely called “wilful murder”.

MR SMITH:   Yes.  But they were left as alternatives, your Honour.  So to find a basis for conviction for murder, as long as they accepted that the elements in one of those bases was satisfied, then it was a fair conviction.

GLEESON CJ:   What do you say about Justice Carruthers’ proposition which, as I understand it, is that in this case to be satisfied of wilful murder they would necessarily have to be satisfied of the elements of felony murder.

MR SMITH:   Yes, that is right, involving ‑ ‑ ‑

GUMMOW J:   It seems to me to be your best hope at the moment.  I do not know why you ‑ ‑ ‑

MR SMITH:   Well, I accept ‑ ‑ ‑

GLEESON CJ:   If it is right it means, does it not, that if six of them thought he was guilty of intentional murder and six of them thought he was guilty of felony murder, 12 of them must have thought he was guilty of felony murder.

MR SMITH:   That is right.  I submit that it is correct.  If you ran two different charges, as my friend has put in his written submissions, you could have six for one type, six for the other and an acquittal on both.  That is the point the Canadian ‑ ‑ ‑

GLEESON CJ:   I am sorry, you do not ‑ unless I am misunderstanding something.

MR SMITH:   Sorry.

GLEESON CJ:   If you had charged them with two counts, one of wilful murder and one of felony murder, if only six of them were satisfied of wilful murder those six would also have been satisfied of felony murder.  Is that right or wrong?

MR SMITH:   That is right.

GLEESON CJ:   That depends on the facts and circumstances of this particular case.

MR SMITH:   That is right.

GLEESON CJ:   Does it follow from that that in the facts and circumstances of this particular case they would all have to be agreed at least on felony murder to convict him.

MR SMITH:   Yes.

GLEESON CJ:   That is to say they do not have to agree on the label.  What they have to agree on is the elements of the offence.

MR SMITH:   That is right.  I do not propose to try and add to what Justice Carruthers said or what your Honour has said unless you wish to hear me further on it.  On the second point, the defence obviously adopted a tactical approach to the lies that were told, because it was made clear in the opening address of Mr Patsalis’ counsel, Mr MacGregor, QC, that Patsalis was going to open up those lies told to the police.  That opening was made straight after the Crown opening.  So it was before any evidence was called.  So it was clear that in this joint trial the issue of lies by Spathis was going to be a live issue.  His Honour was not party to any agreement.  We submit that Reed is correct, the decision of the Court of Criminal Appeal, that was followed in this case in the Court of Criminal Appeal, that where counsel do not take the objection ‑ and this is experienced counsel ‑ for tactical reasons.  Look at this example, if your Honours please.

If what an accused has said to the police is, “Look, I didn’t do this.  I wasn’t here.  I was in South Australia at the time.”  That is not recorded by a tape recorder.  On my friend’s view that would not be admissible, even though they want it admitted.  We submit that it is the same principle here, that the defence wanted that evidence admitted, and the tactical reason for wanting it admitted is, in effect, to reduce the impact of it once it is raised by Mr Patsalis in his cross‑examination.

GLEESON CJ:   Mr Bellanto has submitted to us that there is a conflict of authority between different Australian courts on an issue that is relevant to this point.  Is that right?

MR SMITH:   There is a conflict in so far as the meaning of the word “admission” is concerned, picking up the word “representation”.

GLEESON CJ:   I see the conflict in relation to the word “admission”.  What I am trying to find out is whether it is relevant to this case.

MR SMITH:   We submit it is not because in this case the applicant’s counsel did not wish to object to that evidence.  So it went in as evidence of what he said.  Whether or not it can be categorised as an admission or some other utterance does not matter, we submit, to this case because it was not run in this case, it was not the issue in this case.  It was mentioned in the Court of Criminal Appeal and I must say I raised it myself on the question if the court was not satisfied with Reed then that was a second string to the bow.  But we submit that Reed is correct and that you do not need to go to that conflict at the moment in this particular case.  It is a subsidiary issue in this case.

GLEESON CJ:   Do you mean by that that this case, on the facts, is not a suitable vehicle for consideration of that conflict of authority?

MR SMITH:   That is correct.

GLEESON CJ:   Well, that is what I want to understand a little better than I do at the moment.

MR SMITH:   Yes.  We submit for a start there was no question raised in this trial on the meaning of an admission.  There was no argument.  The cases that Mr Bellanto is referring to include cases where a person’s refusal to take part in an identification parade when he is asked, “Do you want to take part in an identification parade?” and he says, “No”, there was a question of whether or not that was an admission, and so if it is not tape‑recorded the Crown cannot lead it as evidence to prove that somebody did not consent.  If they could show that someone refused to consent by evidence then they can get to section 115 of the Evidence Act which allows them to use photographic identification rather than an identification parade.

GLEESON CJ:   Are you telling us that if the evidence is adduced without objection then these questions as to whether it constitutes admissions do not arise?

MR SMITH:   Yes, I am saying that, your Honour.  And that is what happened in this case.  Now, admittedly, there were objections taken later in the trial to the use of the lies as “consciousness of guilt” lies because of the agreement that had been reached, and his Honour the trial judge said, “I wasn’t privy to this agreement and this agreement can’t really bind me or the other accused because it is a relevant issue in his case and I have to give guidance to the jury”.

Now, we submit that that conflict does not have anything to do with that aspect of the case which is what was attacked initially in the application here and in the Court of Criminal Appeal, the actual admission of the

material and the directions given based on Edwards v The Queen, not the question of whether something is an admission or not.  I submit that most of the cases in Australia that may not follow the Horton line, if I can use that, which says that lies are admissions, deal with matters such as identification questions or fingerprint questions.  There are several authorities on that.  I do not think they are in the written submissions.  I can give the Court a reference to them if you please, but we say it has no relevance to this particular matter.  Those are my submissions.

GLEESON CJ:   Yes, thank you.  Mr Bellanto, just on that last point.

MR BELLANTO:   Yes, your Honour.

GLEESON CJ:   I see the conflict of authority to which you have referred us, but the argument against you is that it does not arise in the circumstances of the present case because there was no objection taken to the evidence.  What is your answer to that?

MR BELLANTO:   Your Honour, one has to trace the developments of this problem.  It started out the Crown did not open on the lies in deference to a foreshadowed objection.  Then there was the agreement that they would not be introduced as a consciousness of guilt between the Crown Prosecutor and trial counsel for the applicant.  Then the co‑accused elected to be unrepresented, and that is how this issue was opened up adverse to the applicant.

Now, that is why it is relevant here and that is why it is a matter that does involve the grant of special leave because if one traces through the developments of how the lies emerged, once they were there it then became a question of dealing with them.  Prior to that defence counsel had told the court that he did not wish to have the Edwards direction on the lies.  Now, that is one aspect of it.

The other aspect of it is that the absence of an objection, we say, does not meet our concern because the legislation is mandatory exclusion.

GLEESON CJ:   That is the point.  The legislative provisions on which you seek to rely are provisions about the exclusion of evidence.

MR BELLANTO:   Yes.

GLEESON CJ:   But this evidence got in without objection.  So how does the construction of the legislative provision arise?

MR BELLANTO:   Well, the fact that there was no objection does not ameliorate the plight of the accused.  They should not have got in, whether there is an objection or not.

GUMMOW J:   You have to say the statute positively forbids it, even if it goes in without objection.

MR BELLANTO:   Yes, it must not be admitted.

GLEESON CJ:   Well, you had better take us to the statute because that would be a very remarkable provision.

MR BELLANTO:   It is quoted at page 482 of the appeal book at line 36:

(2) Evidence of an admission is not admissible unless ‑ ‑ ‑

GLEESON CJ:   That is right.

GUMMOW J:   Yes.

GLEESON CJ:   But there is a lot of evidence that is not admissible.  I would venture to guess that most evidence at most trials is not admissible but it is let in because it suits the parties for one reason or another to let it in.  The fact that evidence is not admissible does not mean the judge is forbidden to have regard to it, if it is let in without objection.

MR BELLANTO:   Your Honour, the provision is designed to ensure police interviewing suspects follow certain procedures.

GLEESON CJ:   But does your argument depend upon construing that provision “evidence is not admissible” to mean regardless of whether it is objected to or not evidence shall not be received.

MR BELLANTO:   Yes.

GUMMOW J:   That cannot be right.

MR BELLANTO:   If one goes to paragraph (b) it seems to be clear that if it is not tape‑recorded it is not admissible.  That seems to be, as far as we are concerned, the end of it.  The only basis on which it got in was a reading, in terms of Reed’s Case, it is not admissible over objection.  So if there is no objection it automatically goes in.  Well, our argument is that that really should not follow.  Although there is no objection made by trial counsel at the time, an inquiry should be made by the trial judge as to the merits of introducing this sort of evidence.  May it please the Court.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take.

AT 11.23 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

GLEESON CJ:   We are of the view that there is no substance in the applicant’s submission that there should have been an alternative count in the indictment limited to felony murder.  This case does not present the appropriate occasion to consider the Crown’s proposition to the effect that on an indictment in New South Wales for murder where alternative bases of guilt are propounded the judge can never be required to direct the jury that they should all be satisfied on at least one basis of liability.  That is because on the evidence, and in the light of the written directions agreed and given at the trial, a juror, if satisfied of any of the alternatives to felony murder, necessarily, would have been satisfied of the applicant’s guilt on the ground of felony murder.

There are insufficient prospects of success on the other ground in the draft notice of appeal to warrant a grant of special leave.  There will be an order for an extension of time but special leave is refused.

AT 11.29 AM THE MATTER WAS CONCLUDED