Stanley v Director of Public Prosecutions (NSW) - Sydney & Anor

[2022] HCATrans 139

[2022] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S9 of 2022

B e t w e e n -

EMMA-JANE STANLEY

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) - SYDNEY

First Respondent

DISTRICT COURT OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 19 AUGUST 2022, AT 12.26 PM

Copyright in the High Court of Australia

KEANE J:   As the Court is sitting remotely, I will announce the appearances for the parties.

MR T.A. GAME, SC appears with MR T. QUILTER and MS C.E. O’NEILL for the applicant.  (instructed by Legal Aid NSW)

MR D.T. KELL, SC appears with MS C.O. GLEESON for the first respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

KEANE J:   There is a submitting appearance filed by the second respondent.  Yes, Mr Game.

MR GAME:   If the Court pleases.  If I can take your Honours to page 178 of the application book, our submission is that a better way to ask whether or not there has been jurisdictional error than asking whether or not the examples that were only examples given in Craig and then picked up and identified as examples in Kirk, rather than do the thing through those spectacles, it is better to ask first what is the jurisdiction the court is exercising and what defines that jurisdiction?  So that when one comes to the Crimes (Sentencing Procedure) Act, then in the District Court we have a hearing by way of a rehearing, a complete rehearing, so that is section 11 of the Crimes (Appeal and Review) Act.  Then we have a maximum sentence that can be imposed picked up from the District Court of five – from the Local Court of five years.

Then we come to section 7 of the Crimes (Sentencing Procedure) Act.  Now, this is under a heading in Part 2, Division 2 headed “Custodial sentences”.  So now, jurisdictionally, what is occurring is the court is being asked in respect of a sentence of imprisonment to impose it in a particular way, and that is jurisdictional because the imposition of an intensive correction order, so long as the sentence imposed is less than three years, which we see at page 182 in section 68, this is an aggregate sentence of three years because there are multiple counts and it is within the District Court’s jurisdiction.

Then the court is being asked to impose an intensive correction order, and so section 7 is engaged.  The question is:  can I or should I impose an intensive correction order?  There are things that have to be stepped through to do so.  The first is in section 7.  The court has to have sentenced the person to imprisonment and it has to have been less than three years and because of subsection (2) the court will not have yet set a non‑parole period.  It is all jurisdictional, in our respectful submission.  Then section 17D is a series of obligations.  Section 17D, all of those things must be done, and they are all conditions for the exercise of the jurisdiction.  We see, for instance, if the court is considering a home detention condition and that is jurisdictional, then the court has to have imposed a sentence for a specified term.

So, it is not the way, for example, Justice Basten describes the thing as all sitting there poised for a Markarian-type exercise of instinctive synthesis.  Another exercise has to take place, but that exercise has already taken place.  Then, when these provisions were introduced, Section 7 was there, but 17D and the following provisions were all introduced at the same time.  And the Second Reading material shows that the whole purpose of them was to reduce the risk of reoffending in the interim by the availability of an intensive corrections order.  That was the purpose of this legislation.

EDELMAN J:  Mr Game, section 17I, and section 17J, they came in in the same amending Act as section 66, did they not?

MR GAME:   That is right.  They did, yes.

EDELMAN J:  I think your submission then is that that is pretty powerful evidence that an expressio unius convention of language would apply.

MR GAME:   Yes, your Honour.  So that, if we got special leave, we would want to draw that out, because Federal Commissioner of Taxation v Futuris shows that there are limits to the extent to which an invalidity clause of this kind operates.  And you might see that, if you went back to section 5, you would see subsection (4) of section 5, so you would have to look because it will not get over jurisdictional error, and that is effectively what FCT v Futuris shows.

So, there are limits, but yes, we do make that point.  And these things all came in at the same time.  The other thing is, and it is important, is that these things all define jurisdiction.  Section 66 came in under Division 2 which is part of the statute because of section 35 of the Interpretation Act.  Now, section 66 was front and centre in this case, and one can see this just by going back – I  am sorry to jump around – to page 154 and 155.  I will just show you a sentence at the top of page 155, at the end of defence counsel’s submissions.  He had handed the court Wany which had not yet been overturned, which was . . . . . After the argument he says – he ends by saying:

where the prospects of re-offending in my submission are fairly low –

Now, Justice Leeming thought that section 66 was not even in play.  And he said that at 145, paragraph 155, but it was front and centre.  In fact, it was all that was being argued about.  So, if we look at section 66 – section 66 is jurisdictional, because this is telling you things that have to be done before you can get to the intensive correction order.  And it uses the language of:

must be the paramount consideration when the sentencing court is deciding –

So the court has an obligation.  And then it goes on – subsection (2) feeds into subsection (1):

When considering –

So there is an obligation to consider:

is to assess –

And then the assessment:

is more likely to address the offender’s risk of reoffending.

So, that is all forward‑looking, and it is all addressed to this particular offender.  And then it says:

must also consider the provisions of section 3A –

So, of course, ultimately, there will be an instinctive synthesis involved.  But that is really not to the point, and yet that is the whole reasoning of Justice Basten, and Justice Bell is slightly different, but just the whole reasoning of Justice Basten, joined in substantially by Justice Leeming.  If that is the case – and this is a terribly important jurisdiction, there are something like 5,000 of these appeals every year – if that is the case, then the means of getting into Chapter III of the Constitution is cut out because the court – this is only in cases of denial of procedural fairness and that sort of thing ‑ will this supervisory jurisdiction even be entertained.

So, if I come back to section 66, we say, manifestly, those things are all jurisdictional because they have to be stepped through.  One could use the language of the second example in Kirk, from Craig brought into Kirk, but we would say one does not need to get hidebound or take a particularly narrow view of those because if one asks oneself the simple question:  what is this jurisdiction, what defines it, by what power is it exercised and by what means, then one can see plain as day that these things are jurisdictional.

If they are not, then it is terribly hard to see how jurisdictional error would even be engaged in respect of these – and, as I say, if it is not engaged then Chapter III of the Constitution is not going to work because to get into section 73(ii) of the Constitution you need an appeal from the Supreme Court.  This is the District Court, and for historical reasons concerned with quarter sessions and limited resources which have carried forth to today, these appeals stopped in the District Court.  That is a kind of historical oddity.  But, as I said, there are about 5,000 of these every year.

EDELMAN J: Mr Game, is that submission about section 73 of the Constitution a submission relating to interpretation or is it just one about consequences?

MR GAME:   No, your Honour.  It is partly about consequences.  But what I have in mind is this.  It is pretty much for the reasons given by Justices Gaudron and Gummow in Bhardwaj – that, if one interprets these privative clauses too restrictively, then one is limiting access to the courts.  What has happened in this case is that Bhardwaj has been turned on its head.  It has been turned on its head because the Court has said there are these terrible consequences – people will be running free – people will be unlawfully imprisoned.  But all that would happen, is that the section 11 jurisdiction would not have been engaged.  So, the person would still be subject to the original sentence.

Even there, if there was any such question, Bhardwaj points out that there are large questions about the consequences of invalidity.  This Court’s decision in Kable (No 2) left open that question.  Kable (No 2) is about a superior court, but it would be a very odd thing if it was a different consequence depending on which court the person was sentenced in.  So, we say ‑ ‑ ‑

EDELMAN J:   But that is why I asked, Mr Game, whether it is a submission about consequences.  I understand that consequentialist‑type reasoning but, as a matter of interpretation‑where one is asking whether section 66(2) contains a mandatory requirement that, of itself, is jurisdictional.

MR GAME:   Yes.

EDELMAN J:   That, ultimately, is the question of parliamentary intention, in light of all of the contexts and the circumstances of the statute.

MR GAME:   Yes, I agree ‑ ‑ ‑ 

EDELMAN J: How can section 73 of the Constitution inform that question of interpretation?

MR GAME:   I say it can because I say that – this is why, at the beginning, I said a slavish application of the idea of what are the conditions of the exercise of the jurisdiction might lead one awry, because one then ends up splitting hairs about what is a condition.  That is why I said, call it a condition or do not call it a condition, this is something that has to be stepped through and that is why I say it throws up a relatively straightforward outcome without getting slavishly dragged back into the examples.

I say, that takes one back to bring to mind that which Justices Gaudron and Gummow said in Bhardwaj but, also, I had in mind something else which has not been drawn out.  At a time, pre‑Kirk, there was a lot of attention to what the terms of privative clauses were – basically, because more and more extreme privative clauses were created in respect of the New South Wales Industrial Commission.  But this privative clause simply says no adjudication on appeal of the District Court is to be removed by any order of the Supreme Court.  So, it is a straightforward privative clause.  I say, look at this statute.  It is, actually, quite a straightforward question because – and its answer – the answer is thrown up by the two questions I asked in the beginning – which is, what is the jurisdiction and how is it defined?  Defining “jurisdiction” is very much a matter for Parliament to do.  Validity is for courts, obviously.

Your Honour, I am not sure whether I have answered your question, but I am actually trying to make it a straightforward question, not a complicated question.  Our argument is if one says, slavishly, what are the conditions, and limits that excessively, then what is one talking about? What are these conditions if it is not this kind of thing, and where would that leave one in jurisdiction?  So, the approach I am inviting is actually much more straightforward and throws up a much more clear answer than the three different approaches – or possibly four different approaches – that were taken in the Court of Appeal.

You may have seen that Justice Beech‑Jones in the clearest terms at paragraph 184, page 155, that there was really no question, but that the District Court judge had failed to engage with section 66(2).  I can take you back to that in a moment, but if you just go on in Justice Beech‑Jones’ judgment, now at paragraph 193, he dismisses the thing because he says this consideration – and we say that, of the majority judgments, his is actually the one that comes closest to actually correctly framing the question.  We actually say that the rest are misconceived in how they approach the question.  He says it is not determinative.  It does not actually – he says that at about line 25 – but it does not need to be determinative.  Materiality, of course, is a requirement in respect of discretion and materiality was conceded.  It may or may not be determinative once you have stepped through it, but you still have to make that assessment.  If you go back – just briefly – to page 75 of the appeal book, you will see towards the bottom of the page at line 35, her Honour says:

I am of the view that a sentence imposed of three years is an appropriate sentence.

So, the way I have taken your Honours through it, she should have actually imposed the sentence, and she should have said what the indicative sentences would be, then she should have imposed the sentence, then she should have addressed section 66, which she did not do, and one can see she just says:

In my view community safety is of paramount consideration.  There are a substantial number of firearms.  The firearms in my view pose a significant risk to the people of Dubbo.

That is not addressing that question that Justice Beech‑Jones identified that I took you to.  Then, if one goes from there to Justice Bell – now Chief Justice Bell’s – judgment, to see how his Honour applied the question.  Again, his Honour – if one sees from page 105, his Honour actually is – we would say – he is throwing up why this is a question of general importance when he lists the kind of different ideas that have been put forward as to what might be jurisdictional error.  At the top of 108, and this is really important for this, his Honour say, these are the things identified in Craig that do not normally amount to jurisdictional error.  But, there are errors, and there are errors.

That negative definition will not give you the answer.  So that it depends whether or not one is, shall I say, inside the section or whether or not one has engaged the section.

So, in Craig – and your Honours probably do not have Kirk with you – there was reference to failures to take into account a particular matter is ordinarily not jurisdictional error, but we accept that.  But that might be a thing like failing to have regard to contrition, or failing to have regard to cooperation, or failing to give an appropriate discount, but this is substantially different, this is a different thing, and it is drawing out that distinction, what is this different thing?  That is a real question and this case throws it up in the clearest possible way.

My time is almost done, but just very briefly, if I just take your Honours to some comments made by Justice Basten at page 138.  One sees at paragraphs 136 to 138 the idea that these people will have been unlawfully imprisoned.  That is just not correct, for the reasons I have already given.  It is kind of like – this is major because what this is, is the Court of Appeal declining jurisdiction because of a perceived problem when the perceived problem does not exist and the perceived problem only exists because there is no appeal.  It is a regal – and I do not mean to be unkind about it, but it is a kind of regal declining of jurisdiction in a major area of importance with respect to access to the courts.  His Honour also said elsewhere that the merits of the application were irrelevant.  Now, if I just take you to the conclusions.  This is going forward, at 139 his Honour says:

there is no staged process of consideration, contrary to Markarian –

and then he refers to Muldrock and Anjoul.  But that is quite different than what we are talking about here, and getting to the bottom of it is really important.  And then his Honour says at 140:

It follows that whether and how the sentencing judge complied with s 66 is not an issue –

His Honour calls to mind standard non‑parole periods.  An error in applying a standard non‑parole period would not be jurisdictional, but an ignoring of the standard non‑parole period provisions would be jurisdictional.  One has to kind of get into that one has to get into the detail.  Anyway, I think my 20 minutes is about to be up but ‑ ‑ ‑

EDELMAN J:   Mr Game, just before you finish, you said that paragraph 136 was erroneous because a failure to comply with section 66, I think you are assuming would not result in a nullity leading to a conclusion of unlawful imprisonment.

MR GAME:   That is correct.  Yes, exactly.

EDELMAN J:   Even though the failure was by an inferior court rather than a superior court.

MR GAME:   Well, yes, but this has to be drawn out.  There are reasons – I am over my time, but could I just answer the question?  There are reasons for this.  One is, structurally, the original sentence would still stand, so section 11 of the Crimes (Appeal and Review) Act jurisdiction would fail, but the original sentence would still be extant and the appeal would sit there ready to be determined.  That is all that would happen.

But also there are other reasons.  One is that which was said in Bhardwaj about the subject, and also again in Kable (No 2), it was a . . . . . superior court, but the court surely and left open – in fact, there its discussion leaves open whether or not that would apply also to inferior courts, particularly when legislation speaks to all courts.  So that is my answer to that question.  If the Court pleases.

KEANE J:   Thanks, Mr Game.  Yes, Mr Kell.

MR KELL:  Thank you, your Honour.  We submit that this matter is not appropriate for a grant of special leave for three main reasons.

The first is that the proposed appeal raises no point of principle of general application, properly considered, and I will explore that.  Secondly, that the proposed appeal has insufficient prospects of success.  Thirdly, and relatedly, to the first point, that any difference of opinion within the New South Wales Court of Appeal in relation to this specific statutory provision, section 66(2) was in effect resolved by the President convening a bench of five judges and determining the matter by the application of settled principle and that there is, in the circumstances, no persuasive or compelling reason for this Court to intervene.

Returning to the first point, and focusing also on the nature of the provision, so section 66(2) is a bespoke New South Wales provision as indicated in the ‑ ‑ 

EDELMAN J:   Mr Kell, it may be bespoke, but it affects up to 5,000 people a year.

MR KELL:  Can your Honours hear me?

KEANE J:  Yes, we can hear you.

MR KELL:   Yes?  Thank you.  It is a bespoke New South Wales provision, as I was saying, it is a provision that applies in connection with intensive corrections orders.  And it has potential application to offenders who are being considered for such orders.  But, as is clear from the authorities, whether or not an error in the exercise of statutory power rises to the level of jurisdictional error depends upon the construction of the statute, taking into account text, context and purpose.

So, it is ultimately and inherently a question of statutory construction of this particular provision and, within that context and responding to Justice Edelman’s observation, it is a peculiarly New South Wales provision.

Related to that is the point that the intervention of this Court would not be apt to resolve any general question of public importance regardless of the way in which the special leave questions are framed, and that is because, if one looks at the proposed special leave questions, they can be seen on the second page at 167 of the application book, in relation to special leave question (2)(a), the approach of the Court of Appeal in this matter was orthodox, or entirely orthodox, and that is reflected in, for example, at application book 143 at paragraph 148 of the judgment Justice Leeming proceeding on the basis of whether or not a court’s failure to have regard to something which the statute requires it to have regard to amounts to jurisdictional error, turns on the statute.

EDELMAN J: Mr Kell, that may be orthodoxy, and whether or not one puts the point in terms of interpretation or in terms of consequences of the interpretation, the majority of the Court of Appeal’s decision does have the effect that 5,000 cases, or up to 5,000 cases a year are removed from this Court’s section 73 jurisdiction, does it not?

MR KELL:   It has the consequence – the privative clause which applies to a second level of appeals from the Local Court in New South Wales is itself part of the statutory context.  It is part of the exercise which has been considered.  So if, for example, one looks at application book 104, paragraph 36 of the President’s judgment, the point is well‑made that:

To adopt an overly broad and open‑ended conception of jurisdictional error –

which is what is in effect being invited here by the applicants:

would be illegitimately to emasculate the operation of the privative clauses, denuding them of their intended effect, contrary to the requirements of purposive statutory construction.

It is a consequence of the statutory landscape that there must be jurisdictional error established for judicial review of the type that was sought in the Court of Appeal in this case on a second level of appeal. 
Then the question becomes, according to orthodox principles is there jurisdictional error established in the particular case?  Of course, and I am not telling your Honours anything that is not known to your Honours.  Then when one focuses into it, and my friend talks about, well, this is something that has to be stepped through, and the like, when one looks at section 66(2) - and it is important to look at the particular provision – it is in effect merely – and I use that in quotation marks – a mandatory consideration provision.  It is a provision ‑ ‑ ‑

EDELMAN J:   Mr Kell, that is the very question.  Is it a consideration within jurisdiction or is it a condition for jurisdiction?

MR KELL:   Yes.

EDELMAN J:   If it is a consideration within jurisdiction, at the very least it seems to be the consideration within jurisdiction.  It is not like a list of sentencing considerations, is it?

MR KELL:   We say two things, respectfully, your Honour. The first is that it is, in terms of its language – and this is ultimately a question of statutory construction – it is far removed from conditions on jurisdiction that can be seen in, for example, sections – surrounding sections such as section 67 and 68.  So section 67(1) talks about:

An intensive correction order must not be made –

Then identifies the circumstances in connection with which it must not be made; that is: particular offences.  Similarly, section 68:

an intensive correction order must not be made in respect of –

For subsection (1): a sentence exceeding a term of two years.  They are more apt to be provisions in the nature of conditions for the exercise of jurisdiction.

KEANE J:   Mr Kell, why would section 66 not take its character from section 67 and 68 with which it appears?

MR KELL:   Because of the particular language of the provision, so, looking at the provision in section 66, read in the context, in section 66 nowhere will it be found language of the type of, an order must not be made.  Or ‑ ‑ ‑

EDELMAN J:   That is the very point, Mr Kell.  Sections 67 and 68, which you are accepting at least might be conditions for jurisdiction, are expressed in the negative.  Section 66 is expressed in the positive.  If 67 and 68 in the negative are conditions on jurisdiction, why is 66 in the positive not a condition on jurisdiction?

MR KELL:   A positive condition on jurisdiction would be apt to be in the language of . . . . . which is not in here.  But just responding to your Honour’s question, if I may, that it would be apt to be in the language of an intensive correction order can be made only if, and then the subject matter that is a condition of the jurisdiction is stated.  But that is not this provision, and just responding to the earlier question which I was dealing with by referring to those section 67 and 68, if one looks at section 66(2) – which is the particular provision – this case does not involve a challenge that section 66(1) was not – this is a case involving section 66(2).

The sentencing judge clearly had regard to community safety as a factor, and referred to it as a paramount consideration.  That is clear from application book page 75.  What one then zeroes in on is a provision in section 66(2), where, when considering community safety – so that is when considering one of the factors in this provision that is relevant to an intensive corrections order, the sentencing court is to assess a certain matter, but when one looks at section 66(3), that matter which is the subject of the function or the assessment, is simply, in section 66(2) it relates simply to community safety and when one looks at section 66(3):

When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles –

So, they are all similarly mandatory considerations that the Court is required to have regard to.  Although, community safety is given paramountcy, that is just, simply – that is not to say that the other considerations are not to be taken into account or had regard to.  It is just simply a matter for determining which one is to be given paramountcy.  What this provision entails is simply a mandatory consideration and then the orthodox question of statutory construction is really whether a failure to have regard to a mandatory consideration – or to undertake the function referred to in section 66(2) is intended by Parliament, in a Project Blue Sky sense as being a matter which would invalidate the exercise of power.

That is a question of, as we say, statutory construction and it was approached in an orthodox fashion by the Court of Appeal and in a way that, we say, is persuasive.  Could I expand on that in connection with – and I took your Honours to the special leave questions that are raised in the application for special leave.  Question (2)(a) raises a question – which is whether the statute requires, et cetera, et cetera:

effectively presumed not to be jurisdictional –

We say, in this context, the Court of Appeal did not seek establish a different approach to jurisdictional error for applications for judicial review of sentencing appeals in the District Court.  The Court of Appeal did not adopt a different approach from that endorsed by this Court in Craig and then Kirk.  But rather, consistently with the approach in those cases, the court, appropriately, took into account the context of the provision – including that it involved an error on the part of an inferior court entrusted with authority to identify, formulate and determine in the Kirk sense.

That is an orthodox approach and it is consistent with the question ultimately being one of statutory construction, so that the nature of the decision‑maker is relevant and can be important as it informs the construction of the statute.  It informs what Parliament would have intended – whether Parliament would have intended to invalidate any sentence passed where there was non‑compliance with a particular statutory direction such as section 66(2).

It is clear that the Court recognised – so, for example, his Honour Justice Basten, at appeal book 115, at judgment paragraph 74, his Honour – and this is reflective of the Court of Appeal generally – recognised that Parliament can, of course, impose obligation and constraints on the sentencing process, however, the question is whether as a condition of jurisdiction it has done so in terms of section 66(2).  So, we say there is an orthodox approach taken and there is no presumptive approach which is adopted of the type which is sought to entice this Court by reason of the special leave questions.  There is simply the special leave question as put in (2)(a) simply does not arise.

And that is the same with (2)(b) and similarly, in terms of special leave question (3), which deals with consequences, that it is clear that the potential consequences of invalidity can be relevant in a Project Blue Sky sense.  It then becomes a question of the applicant simply contending that undue weight was given to this factor.  We say that there is a persuasive exercise in statutory construction which is undertaken.  But in any event, that is not, we say, a special leave question.

Can I just say something quickly about or finally perhaps on the expressio unius which was raised – there was reference to – I will say it quickly within the time if I can, the treatment of other mandatory provisions and the use of savings provisions in some other parts of the Act does not meaningfully assist the applicant as it does not provide any reliable indication of the legislative intention of section 66(2) . . . . . jurisdictional consequences.  So, one reason, and it is set out in part in our submissions and similarly in the Court of Appeal judgment, but one reason ‑ ‑ ‑ 

EDELMAN J:   Mr Kell, that submission might have a lot of force if they were all provisions that came in at different times.  But here you have got the same amending Act which puts in particular saving provisions in relation to some clauses and not in relation to others.

MR KELL:   Yes, and those provisions, sections 17I and 17J for example, are differently worded, so they use stronger language such as the word “must” rather than “is to”, and they require a sentencing court to do things on the making of an order rather than to take simply matters into account in an evaluative or discretionary process.  So, that they impose obligations to explain and give notice of relevant things or orders and so it is explicable why there might be a saving provision included in those provisions but not in section 66(2).

Similarly, many of the provisions that have a savings clause, if I can call it that, are ones that, unlike section 66(2), include an obligation to make a record of a consideration or exercise of a function or a particular decision.  

That is, we say, consistently with what Justice Leeming said in Quinn at paragraph 80, that is an indication of the importance with which Parliament may be taken to have regarded that particular provision. And there is no such obligation that accompanies express terms which accompany section 66(2).

It can be – we respectfully submit, it can be readily or equally inferred that the legislature did not include a savings clause in connection with section 66(2) simply because it did not consider it would be necessary.  It is simply a provision referring, along with many others, to consideration of mandatory factors.  I see my time is up, your Honours.

KEANE J:   Thanks, Mr Kell.  Yes, Mr Game, anything in reply?

MR GAME:   Just briefly.  I was endeavouring to do anything but introduce an open‑ended idea of jurisdictional error, I was trying to find a way to bring rigour to what kind of mandatory considerations give rise to jurisdictional error, and those that do not, and that question, we submit, is acutely raised by this case.

Second, it does not help for the respondent to say community safety was considered because section 66(1) is meaningless if section 66(2) is ignored, because it is all about the particular offender and it is all about whether or not their rehabilitation will – how that works and how that affects community safety.  You have to kind of read them together.

Thirdly, example, section 67 and 68 were referred to as the kinds of things where one could go to the Court of Appeal, but take section 68:  a section 68 error would be so obvious that the Court of Appeal would say, well, why have you not gone back before the sentencing court under the slip rule, which is section 43.  So you actually do not – it is kind of like there is nothing left because section 68, there would be discretionary – strong discretionary reasons just to go back to the court under section 43, which was considered by this Court in Achurch and I cannot remember whether your Honour Justice Keane was on that case.  So, section 66(3) says “must also”, so the whole thing is mandatory.  So, those are our submissions in reply, if the Court pleases.

KEANE J:   Thanks, Mr Game.  The Court will adjourn briefly to consider the course it will take in this matter.  Adjourn the Court please.

AT 1.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.13 PM:

KEANE J:   There will be a grant of special leave to appeal in this matter.  Mr Game, would I be right in thinking that the matter would be concluded in a day, but perhaps not in half a day?

MR GAME:   Yes, your Honour, that is correct.

KEANE J:   Mr Kell, do you agree?

Very well, as I say, there will be a grant of special leave in this matter.  The parties should follow the directions of the Registrar in order to bring the matter to a timely hearing.

The Court will now adjourn until 1.30 pm.

AT 1.14 PM THE MATTER WAS CONCLUDED