The Director of Public Prosecutions v Maxwell

[2013] HCATrans 178

[2013] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M34 of 2013

B e t w e e n -

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

KUIA ANASTASIA MAXWELL

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 AUGUST 2013, AT 10.11 AM

Copyright in the High Court of Australia

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR L.K. CROWLEY, for the applicant.  (instructed by Director of Public Prosecutions (Cth))

MR M.P. CAHILL:   If the Court pleases, I appear with my learned friend,
MR D.T. CASH, for the respondent.  (instructed by Matthew White and Associates)

FRENCH CJ:   Yes, Ms Abraham.

MS ABRAHAM: As your Honours are aware, Part 9.1 of the Criminal Code (Cth) deals with serious drug offences and it is structured in such a way that the Parliament has nominated border controlled drugs and then specified, in relation to each of the drugs, marketable and commercial quantities, but otherwise fixed the same maximum penalty.

FRENCH CJ:   The commercial quantities are specified in the regulations, are they not?

MS ABRAHAM:   They are now.  It was in section 314 of the Code at the time of this offence.  They have simply been taken out and put in the regulations quite recently as of the end of May this year. 

FRENCH CJ:   Right.

MS ABRAHAM:   The amounts, when your Honours look at the amounts, are different per drug.  This Court recognised that structure in Adams, a decision in 2008, where the Court considered whether it was appropriate within that structure to compare the relative harm of a drug in determining the seriousness of the offence and the Court concluded that that approach was inconsistent with the structure.

The issue in this application is whether you can compare the relative financial value of a drug dependent on its identity, because what the court below in this instance concluded, in our submission, is that, all other things being equal, the importation of a commercial quantity of GBL, because the court considered it was a low value drug by comparison to other border controlled drugs, is necessarily, by that fact alone, objectively less serious than commercial quantities of other border controlled drugs.

FRENCH CJ:   You would accept, would you not, that the importation of a small quantity of a drug, albeit it exceeds – or at least the bottom range of the commercial quantity is less serious than the importation of a large amount?

MS ABRAHAM:   Yes, absolutely.

FRENCH CJ:   Would you accept also that it is relevant to sentencing that an amount may be of a certain value?

MS ABRAHAM:   Your Honour, in my submission, trying to duck the question, there are two concepts in that question.  In my submission, what the court did here is divide between what is relevant in terms of what reward the particular offender is going to get from the importation, be it the whole amount or be it, for example, a portion, because they are only a courier.  That, in our submission, is a relevant factor on sentencing and the Crown has never suggested otherwise. 

What the Crown says though is that there has been a conflation of principles or concepts in this case and that then has been morphed into financial value. What the applicant says is that what the court cannot do is look at - well, hold on a second, yes, this particular accused is only going to get $10,000 because they are a courier, but this drug is a low value or high value drug because of the nature of the drug. That, we say, is inconsistent with Part 9.1 and inconsistent with Adams because what it does do is compare the relative seriousness or the financial value of the drug and determine the relative seriousness.

FRENCH CJ:   Well, can you take us to a passage in the judgment of the Court of Appeal which encapsulates the error of which you complain?

MS ABRAHAM:   Well, with respect, your Honour, there are a number.  Can I take your Honour to the passages where the conflation of the two concepts occurs?  The court used the terms “financial reward to the offender”, for example, in paragraphs 21 at page 39 of the application book and paragraph 28, page 41 of the application book, where the court in each instance talks about the financial reward that the particular offender is going to receive and, as I said, we have no problem with that concept, but the court also intermingled with that started talking about low value drug, for example, in paragraph 36, which is on page 44 of the application book.  Similarly, at paragraph 33, which is on page 42, I think even paragraph 24 ‑ ‑ ‑

FRENCH CJ:   The fact it is a low value drug is a variable which informs the amount of the reward that somebody is going to get, is it not, and is relevant to deterrence, for example?

MS ABRAHAM:   It may inform the reward that a person is going to get, it may not.  If the evidence is that the person is going to get $10,000, but it is heroin, and obviously the financial value of the heroin is much more than $10,000, it has not informed that.  What it might do is reflect what role the particular offender had in the offending if he was only going to get a small portion and so, in my submission, it is relevant in that sense. 

The court also used the terms “enormous reward differential” in the judgment.  They used that at paragraph 33, indeed, at paragraph 40, and it is said that it is the enormous reward differentials between this drug and other - by comparison to other border controlled drugs, commercial quantity that is, that justifies the substantially different sentences for this drug.

Now, there is no definition of what, or no explanation of what “substantial reward differential” is.  It cannot relate to the particular offender because the three cases that the court used in paragraph 40 of the judgment, page 45, to illustrate their point about reward differential, the offenders in those cases received very minimal amounts, as we have in our written submissions.  One offender received $5,000; the other offender received $30,000.  So the concept of “enormous reward differential” cannot be relating to the particular offender.  It must, in the court’s mind, be related to the value of the drug because of its identity and, in our submission, that is wrong.

BELL J:   Just looking at the circumstances of this case and this respondent, the Crown appealed against the inadequacy of the sentences imposed by the primary judge.  Was it suggested that the primary judge made the error of which you complain respecting the Court of Appeal?

MS ABRAHAM:   In terms of the conflation or in terms ‑ ‑ ‑ 

BELL J:   Yes.

MS ABRAHAM:   We say the primary judge underestimated the objective seriousness of the offence.  Can I indicate cases were put to the primary judge of what sentences had been imposed for the GBL offences, and other cases that had been imposed for a commercial quantity or just over a commercial quantity of other border controlled drugs, and the Crown had suggested a range that was above what the sentences had been for the GBL because the argument was that that was not properly reflective given the relevant sentencing principles.

BELL J:   So the position was, before the primary judge a range of sentences was noted in the Crown submissions.  Those submissions included what might be broadly described as comparable sentences for an offence involving GBL when dealt with in a commercial quantity and another range of sentences involving other drugs and it was the Crown’s submission that the judge ought to impose a sentence higher than the range that existed respecting the GBL offences.  Is that right?

MS ABRAHAM:   Yes, the range suggested under MacNeil‑Brown was seven to 10 years as a head sentence and I think four and a half to six and a half as a non‑parole period and that is, I can indicate, above what the GBL sentences had been to date.  The problem, in our submission, with this decision is that it endorses that the court can compare what the financial value of a drug is based on identity and create, in fact, a judicial gradation of seriousness of the offence based on that ‑ ‑ ‑

FRENCH CJ:   Does it not just reflect the inevitability that the actual reward will be related to the identity of the drug because it is related to the unit value of the drug?

MS ABRAHAM:   In my submission, no, because it is more than that.  If Parliament had said one kilogram of GBL has a maximum sentence of life imprisonment and they say that 1.5 kilograms of heroin is a commercial quantity for that, and that is a maximum of life, in my submission, it is inconsistent with that and inconsistent with Adams to then say, well, hold on a second, we know that in relation to heroin you are a courier, you are only going to get $10,000; in relation to the GBL, we know you are a courier, you are only going to get $10,000, but for GBL, that is not as valuable, so your sentence is substantially lower than what the sentence for the heroin importer would be and, in my submission, that is not correct.

BELL J:   Accepting that for present purposes, just looking at the position of this respondent and the sentencing of this respondent for this offence having regard to the quantity of GBL, which was above the commercial quantity plainly enough, but not greatly so, and happened in her case not to involve a substantial financial reward, these were factors to be considered in the determination of the appropriate sentence together with all the other matters, surely.

MS ABRAHAM:   But she was not to receive a particular financial - I agree but, your Honour, when you compare that to the three examples that the court has given in paragraph 40 the offenders, in paragraph 40, received sentences of 10 years for just over the commercial quantity in circumstances where they had received no greater financial reward than this offender.  This offender had committed two separate offences and the only difference - so for two offences her sentence is two and a half times less than these offenders and, in our submission, that is not a consistent application of principle.

This Court in Hili has emphasised consistency in relation to Commonwealth sentencing - it is the application of sentencing principles consistently to primarily the offence provision.  In my submission, that has not occurred here - quite to the contrary.  Interestingly enough, what the court has done here is, in effect, hive off GBL and said, “Well, hold on, we regard this as low value”, therefore it is correct that it is substantially lower regardless of the amount of reward this particular offender is going to get. 

In the Queensland case of Bakir and Hill, which was a GBL case, which was also a Crown appeal, the Crown did not succeed on the appeal by majority.  Nonetheless, the cases referred to by the court in Bakir and Hill were not just GBL cases.  They accepted that what was relevant was cases in relation to a commercial quantity of a border controlled drug.

This court considered – the court in Maxwell - talked about this offence being a different form of offence in paragraph 5.  With respect, it is not a different form of offence.  It is the same offence - importing a commercial quantity of a border controlled drug.  What the court did, with respect, in my submission, in coming to the conclusion it did, amongst other things, was refer to Victorian parliamentary debates in paragraph 28 of the judgment.  The court referred to the debates and:

The statutory presumption was that the quantities selected would lead to a ‘consistency of monetary value’ –

It is at page 42 of the application book.  The Victorian parliamentary debates in relation to Victorian legislation, with respect, have absolutely nothing to do with the interpretation of Commonwealth legislation. 

Importantly, as it turns out, the commercial quantities in the Victorian legislation are substantially different than the quantities in the Criminal Code (Cth). For example, the commercial quantity in relation to heroin under the State Act is 250 grams. It is 1.5 kilograms – so, with respect, that a court is prepared to rely on the Victorian parliamentary debates to then reason that this offence - it is at the top of page 43 - is not “truly commercial in nature”, in my submission, shows significant error. Parliament has nominated that o one kilo is well and truly commercial in nature, so to reason that it is not truly commercial because the court compared it in relation to other drugs, in my submission, is incorrect.

There are a number of other flaws in the judgment, in our submission.  The court confined Adams, in paragraph 27, to the question of harm, and harm alone.  In our submission, that is an incorrect interpretation of Adams.  Adams was based on an interpretation of the structure of the legislation and it is because of that structure that the court considered it was inappropriate for the courts then on top of that to judicially grade the drugs within the, for example, commercial quantity. 

I might add, in Adams the court recognised the legislative approach that I have indicated and stated that it recognises the financial rewards available from dealing in illicit drugs and then thus differentiated between commercial and marketable quantities.  In my submission, the Parliament has done the job and it is not for the court to intervene.

BELL J:   In Adams the legislation in consideration was the Victorian legislation, was it?

MS ABRAHAM:   It was the Customs Act.

BELL J:   It was the Customs Act.  So was it Pidoto that was the Victorian ‑ ‑ ‑

MS ABRAHAM:   It was Pidoto that was Victorian.

BELL J:   Yes.

MS ABRAHAM:   Can I indicate the Court, at paragraph 2 in Adams, recognised that the Customs Act is the same structure as the Criminal Code because the change had occurred at that time.

BELL J:   I just raise the matter because the reference by the Court of Appeal to the second reading speech is an extract from Pidoto, is it not?

MS ABRAHAM:   Pidoto, yes, which is the Victorian legislation.

FRENCH CJ:   But Adams is focusing, is it not, on a concept of, as it were, inherent harmfulness and pointing out at paragraph 9 on page 147 of the joint judgment that:

Harm to users and society is a protean concept -

in other words, the inappropriateness of a kind of gradation paradigm being imposed on the sentencing responses by reference to that notion.

MS ABRAHAM:   Whilst the argument was harm, in paragraph 10, the next paragraph, the Court says:

An equally serious difficulty for the appellant’s argument is in seeking to reconcile it with the scheme of the Customs Act in relation to penalties.  In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs.

FRENCH CJ:   That is without reference to distinctions based on harm.

MS ABRAHAM:   But, with respect, in my submission, while the argument was ‑ ‑ ‑

FRENCH CJ:   Well, that is your point about the structure, is it not?

MS ABRAHAM:   Yes.

FRENCH CJ:   But distinctions based on value informing the – not just a reward to the importer, but the sort of economic impact, if you like, of an importation may be relevant to questions of both specific and general deterrence, might they not?

MS ABRAHAM:   In my submission, what the Court said in relation to general deterrence is inaccurate because it does not follow, in my submission, that issues of general deterrence - and I think the words were “community protection”, which appear at paragraph 35 - in effect, community protection and issues of general deterrence are more important in relation to a drug that has a higher value than a drug that has a lower value.  Well, with respect, there is no evidence about that.

BELL J:   I think their Honours were simply pointing to the fact that if one can make many, many thousands of dollars in trading in a particular substance it is likely one will draw in a number of people to that enterprise.  I do not know that one needs evidence of that.

MS ABRAHAM:   But, in terms of community protection, in my submission, that there is a complex drug or a complex importation process is an aggravating feature, not a mitigating feature.  What one has here is a drug that people can get over the internet.  That does not make it any less serious; quite to the contrary.  In my submission, general deterrence is all the more important because people can use this drug, or obtain this drug, without getting involved in the drug milieu basically so, in my submission, that ‑ ‑ ‑

BELL J:   They end up in gaol when that happens, as occurred to this respondent.

MS ABRAHAM:   Except, with respect, leaving aside this respondent, the point of principle, in my submission, is that the structure needs to be applied consistently.  Here, amongst other things, the reference, for example, in the next paragraph, paragraph 36, to the maximum penalty was for “drug profiteers”, of which she was not one.  The Commonwealth Parliament has said, with respect, that in relation to a commercial quantity the maximum is life imprisonment.  It is equally relevant to her as it is to any other commercial quantity.

FRENCH CJ:   Now, let us suppose you are right.  Let us suppose there has been an error in the way they dealt with your ground 1 below, what about the way they dealt with ground 2, which rather suggested a comprehensive review of the approach that the primary judge had taken and an acceptance that the sentence reflected appropriate weight for all factors, which does not seem to be informed by the issue that was raised in ground 1.

MS ABRAHAM:   In my submission, it is informed by the issue because the ‑ ‑ ‑

FRENCH CJ:   Well, where is that?

MS ABRAHAM:   ‑ ‑ ‑ court has approached it on the basis that their view is it is a low value drug and the sentences to date are appropriate sentences so, in my submission, the court ‑ ‑ ‑

FRENCH CJ:   I am just wondering, in its analysis of the manifest inadequacy ground, which did seem to involve a review of everything the primary judge did, where they say that.

MS ABRAHAM:   It has reviewed what the primary judge has done, but it has come from the basis, with respect, that is a ‑ ‑ ‑

FRENCH CJ:   That is an implication you are offering.

MS ABRAHAM:   Yes, a low value drug, and the court has already said that in relation to a low value drug the sentences that are there now, even though they are substantially lower than other drugs, are appropriate.  So, with respect, what one has also is a conflict between this and Bakir and Hill in Queensland as to what cases one can look at.  In my submission, what one also has is an argument that it is not a consistent application of the sentencing principles to the legislation and that, in my submission, is important.

FRENCH CJ:   All right, thank you, Ms Abraham.  Yes, Mr Cahill.

MR CAHILL:   If the Court pleases.  Our submission is that the court did not err in the way that has been identified.  In this particular case the court did not apply a principle that you could distinguish between one border controlled drug and another on the basis of its identity and on the basis of its financial value.  In our submission, all the court did was restate the unchallenged proposition that anticipated reward is a relevant sentencing consideration and the court considered all relevant considerations in the sentencing process in respect of Ms Maxwell. 

At page 37 of the application book, paragraph 14 of the judgment of the Court of Appeal, the Court of Appeal drew attention to those considerations that the Director had said were relevant to the “assessment of the objective seriousness of KM’s offending”, and indeed, at paragraph 15 the Court said:

These were certainly relevant considerations.  But the sentencing reasons demonstrate that they were taken into account.

In considering the second ground of the appeal in that court the Court of Appeal went on to say that the sentencing judge had taken into account all relevant factors.  In our submission, the applicant seeks to put a gloss on the reasoning of the Court of Appeal that is simply not there.  At page 38 of the application book the Court of Appeal at paragraph 20 set out the proper approach, in our submission, the approach that accords with principle, and that is:

The sentencing regime being quantity‑based, the scale of the importation will almost always be a very significant factor in sentencing.  Ordinarily, the larger the quantity imported, the more serious will be the offence (other things being equal).  Since importations can involve many multiples of a commercial quantity of the drug in question, it is quite correct to say that an importation which involves (only) one or two multiples is ‘at the bottom end’ of the quantitative scale.

Now, that last comment was directed to the Director’s ground of appeal to the Court of Appeal, namely that the sentencing judge had erred in making a finding that this importation was at the lower end of the scale having regard to the quantities, and her Honour made that finding on the basis that count 1 was a multiple of two of a commercial quantity, 2 litres or 2 kilograms, and the second count was a multiple of one.  What the Court of Appeal has said here, on that analysis it was correct to categorise these importations as being at the lower end of the scale of importations of the type, that is, of a commercial quantity of a border controlled drug.  So the Court of Appeal dealt with that issue and then went on to say:

But there is another important factor in the present case – the low financial return (likely to be) derived from sales of GBL.

Then the Court, in our submission, simply went on to elaborate that factor and set out at paragraphs 21 and 22 recognition by this Court in Wong that:

the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted.

At paragraph 24 on page 40 of the application book the Court of Appeal, in our submission, correctly contrasted the sorts of offences that the Director relied upon, that is the million dollar cocaine importations - was correct to contrast those - and they are set out at paragraph 40 of the judgment - with the importation in this case, that it was an online purchase at low cost with low returns.  That, in our submission, was a factor properly to be taken into account.

Where the court refers to, on the other hand, “complex international operations and millions of dollars of expected profits”, what, in our submission, the court is referring to is at page 45 of the application book, the examples that appear at paragraph 40 of the judgment of cocaine importations which the Director had relied upon to support a submission that the sentencing range should be a head sentence of seven to 10 years, whereas the applicant seeks to draw a comparison between Ms Maxwell, who may have, if she was the principal, expected to receive a revenue of about $17,000 and the courier who may be paid $10 to $15,000 for his or her involvement in a million or multimillion dollar transaction. 

The distinction between those two is that the culpability of the courier, in our submission, must be more serious because that courier – and, indeed, there is authority for the proposition - has chosen to involve him or herself in a large scale multimillion dollar exportation and, in our submission - and that is why sentences in that range of seven to 10 years are visited on offending of that type for this particular offence. 

So our submission is that the Court of Appeal did not seek to distinguish GBL from cocaine or heroin, but simply restated the proposition that anticipated reward is a relevant sentencing factor and in the present case there was evidence before the court, and it appears at page 36 of the application book, paragraph 8:

The wholesale value of the three litres of GBL imported . . . was between $6,600 and $9,000.  Its street value was between $10,440 and $17,400.

That was the evidence before the court in respect of the importation and the Court of Appeal later said that an offender is entitled to call upon that sort of evidence to, as the court described it, rebut the statutory presumption of commerciality, and that is where the court went into this discourse about not being truly commercial in nature.  So, in our submission ‑ ‑ ‑

FRENCH CJ:   So, when you mean a statutory presumption of commerciality, we have the designation of these quantities as commercial and a penalty attached to that designation, do we not?

MR CAHILL:   Yes.

FRENCH CJ:   Well, does it go beyond that?

MR CAHILL:   Commercial in the sense of a commercial quantity of the drug.

FRENCH CJ:   It is a statutory designation.

MR CAHILL:   Yes.

FRENCH CJ:   Then there is a penalty.  I am just wondering where presumption has come into it.

MR CAHILL:   Well, I am trying to find the paragraph in the judgment of the court.

BELL J:   It is at application book 43, paragraph 30.

MR CAHILL:   Yes.  Thank you, your Honour.

BELL J:   It might be thought that the court is there saying no more than that the evidence in this case respecting financial reward was at, as it were, a low end of the scale.  That is a relevant consideration.  It is a consideration that the primary judge took into account.

FRENCH CJ:   But it is not rebutting a legislative presumption, is it?

MR CAHILL:   No, no.  I would respectfully agree.  I was using the words in the judgment.

FRENCH CJ:   They certainly appear in the judgment as Justice Bell has pointed out.

MR CAHILL:   Yes.  If the Court pleases.

FRENCH CJ:   Thank you.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honour, my friend has said that the court has not set out any principle about the drug value.  Well, in my submission, paragraph 5, in its conclusion:

current sentencing practice for importation offences involving GBL was appropriate for this form –

this being GBL, in my submission, is setting out, in light of the repeated references to drug value later in the judgment.  It is in fact doing that.  It is comparing GBL with other border controlled drugs.  Second, my friend says the court has done no more than talk about the anticipated reward for the offender.  We accept that that is a relevant sentencing factor.  We have never quibbled with that.  That is not what the court has said.  If that is what the court has said there is no basis, in my submission, to say that this is a low value drug and that because it is a low value drug it necessarily is less serious.

That this offender was going to get, potentially, whatever it was, about $30,000, in my submission, was a relevant sentencing fact, but if the court is doing what this Court said in Hili and Jones it ought to do, turn to the legislative provision, on the one hand you have this woman who is the principal of an organisation – a principal in the involvement, sorry, and she imports a drug, a commercial quantity, for financial reward, and that was approximately the reward she was going to get, she gets four with a two for two offences.

On the other hand, a person who is a courier at the lowest level who needs money, says, “I will bring in these drugs, I do not know how much they are worth, but I will bring them in and I get $10,000 for it”, on the one hand she gets four years, on the other hand this other person gets 10, all other things being equal, in my submission, that could not possibly be a consistent application of sentencing principles. 

It is an appropriate point for this Court to consider on special leave that this judgment, being an intermediate appellate court where the Court in Hili said it is the intermediate appellate courts that ensure consistency, where this judgment is considered as to whether it is correct that one can approach sentencing on that basis, particularly so, in our submission, when one is dealing with reliance on Victorian parliamentary debates and, in my submission, that is where the word “presumption” comes from.  The court talks about it at the top of page 42.  It relates to the Victorian legislation and, in my submission ‑ ‑ ‑

BELL J:   Well, one difficulty that you confront, Ms Abraham, is that, as I understand it, although it has been the Crown’s position consistently that a more severe sentence ought to have been imposed upon this respondent, the Crown recognises that the financial reward in this particular exercise was relatively modest and that is a relevant consideration.  The Crown does not identify error in the approach that the primary judge took to the various considerations bearing on the sentence and it is an unusual thing to grant special leave to appeal in an appeal by the Crown.

MS ABRAHAM:   I accept it is unusual, except where it is a point of principle.  In my submission this is a very important principle.  The sentence, we say, was manifestly inadequate below because the court has accepted the sentences in the past being lower sentences for this drug.  It becomes, with respect, self‑perpetuating.  One goes around in circles because this is what has occurred before.  So what has occurred is fine now.  This woman - relatively low financial reward; the accused, as I said, in paragraph 40, $5,000 - the first accused got a relatively minor, in fact, far more minor financial reward, one offence, and the court considered it appropriate.  He got a sentence of 10 years with a six year non‑parole period.  That, with respect, cannot be a consistent application.

What we ask the Court to do is look at the point of principle which, in my submission, Hili and Jones emphasises needs to be applied consistently.  It has not been applied consistently.  This judgment will be used not just for GBL, but, as your Honours can see, there is a range of drugs in the schedule.  So what does one do, with respect?  Does one talk about, in addition to the financial reward you are going to get, look at, well, hold on a second, this new drug, we do not know what the value is yet.  Do the sentences go up if the financial value goes up or do the sentences go down if it drops?  Do the sentences depend on the value in Victoria, New South Wales, Queensland, because drug values are different from State to State. 

In my submission, it does involve an important point of principle that does need to be rectified.  The consistent application, in my submission, in this context is approached in relation to reward that the person is to receive, not value.  The sentence could then be sent back, in our submission, for the court to consider on appropriate principles.

FRENCH CJ:   Thank you, Ms Abraham.

In our opinion no point warranting a grant of special leave is disclosed.  The Court of Appeal of the Supreme Court of Victoria had proper regard to the circumstances of the offences and the offender and, in particular, the wholesale and street value of the drug imported by the respondent in determining that the sentences imposed by the primary judge would be seen to reflect the giving of appropriate weight to all relevant circumstances.  We would not endorse the Court of Appeal’s use of the term “not truly commercial” to describe a low value importation.  Special leave should be refused.

AT 10.50 AM THE MATTER WAS CONCLUDED