Sweeney v State of Western Australia

[2006] HCATrans 579

[2006] HCATrans 579

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P23 of 2006

B e t w e e n -

JAMES ANDREW SWEENEY

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 2006, AT 4.32 PM

Copyright in the High Court of Australia

MR B.S. HANBURY:   If it please the Court, I appear on behalf of the applicant.  (instructed by Beau Hanbury)

MR K.P. BATES:   May it please the Court, I represent the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

GUMMOW J:   Yes, Mr Hanbury.

MR HANBURY:   Firstly, the applicant seeks an extension of time.

MR BATES:   No objection.

GUMMOW J:   Very well, you have that extension.

MR HANBURY:   Secondly, your Honours, an application was filed on 7 August.  Subsequently that application was amended and the amended application appears in the application book at page 178.  The application is that the amended application be the application for special leave.

HEYDON J:   You are trying to take advantage of the two possible exceptions that were flagged in Weiss’s Case.

MR HANBURY:   Yes.

HEYDON J:   You say there was a significant denial of procedural fairness or a serious breach of the presuppositions of a criminal trial.

MR HANBURY:   Yes.

HEYDON J:   Can I just put this to you.  A significant denial of procedural fairness would be where there had been a breach of the rules of natural justice or the trial had taken place partly in the absence of the accused, something of that character.  All we have here is the reception of one piece of evidence and a misdirection.  It did not go to any ingredient of the offence, it did not go to any fundamental distortion of the entire nature of the trial.  In other words, what happened just does not fit within those two potential exceptions.

MR HANBURY:   Obviously, your Honour, it has been the applicant’s position that it did.  I understand what your Honour is indicating.  There have been submissions filed on behalf of the applicant and it is the submission of the applicant that the ‑ ‑ ‑

GUMMOW J:   At first blush the judgment of Justice Roberts‑Smith is a very careful application of the law, is it not?

MR HANBURY:   Except, your Honour, that, with respect, his Honour did not touch upon what this Court said in the case of Weiss, particularly at paragraph 45, but the answer perhaps to that is what his Honour Justice Heydon has just said. The submission for the applicant is that having regard to what was said in the case of Weiss that the reception of both jackets which had no necessary connection with the applicant, in combination with the learned trial judge’s directions about lies, was, it is submitted, a significant denial of a fair trial.  It is on that basis, your Honours, that the application is made.  Unless there is a matter that you particularly wish me to address, those are the submissions and I would be grateful if the Court would consider the applicant’s summary of argument.

GUMMOW J:   Thank you, Mr Hanbury.  We do not need to call on you, Mr Bates.

Having considered the written materials and counsel’s oral submissions, we are not satisfied that in this case any question arises respecting the application of the principles explained in Weiss v The Queen (2005) 80 ALJR 444. Accordingly, there are no prospects of success on an appeal on the grounds proposed by the amended application. Special leave is refused.

We will adjourn to take application No 2 at 9.00 am tomorrow morning.

AT 4.37 PM THE MATTER WAS CONCLUDED