The Queen v Holliday

[2017] HCATrans 123

[2017] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C3 of 2017

B e t w e e n -

THE QUEEN

Appellant

and

AARON JAMES HOLLIDAY

Respondent

KIEFEL CJ
BELL J
GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 15 JUNE 2017, AT 10.15 AM

Copyright in the High Court of Australia

MR J. WHITE, SC:   May it please the Court, I appear with my learned friend, MS M.A. JONES, for the appellant.  (instructed by Director of Public Prosecutions (ACT))

MR S.J. ODGERS, SC:   May it please the Court, I appear for the respondent with my learned friend, MR J.T. LAWTON.  (instructed by Gabbedy Milson Lee)

KIEFEL CJ:   Yes, Mr White.

MR WHITE:   Thank you, your Honour. Your Honours, section 47 of the Criminal Code (ACT), which is a Model Criminal Code, makes it an offence to urge the commission of an offence. In this case, the respondent, who was incarcerated, offered money to a fellow inmate, Powell, to organise people outside the prison to kidnap Crown witnesses and to force them to adopt a statement which the respondent had drafted. The respondent provided the statements and instructions to Powell, but Powell did not take any significant steps in the matter and reported the matter to authorities. The question to be determined is in doing what he did, was the respondent urging the commission of an offence?

Now, your Honours, the way that the Crown put the case at trial is conveniently set out in the judgment of Justice Wigney in the Court of Appeal.  It is at page 84 of the appeal book at paragraph 73 of his Honour’s judgment.  The Crown Prosecutor said:

I should outline that it’s not alleged that the accused intended Darren Powell to commit the kidnapping and murder personally as he was in prison himself at the time, rather that Mr Powell was urged to procure other people or other persons to commit the offence.  Now, as a question of law, procuring others to commit the offence would make Darren Powell guilty of committing the actual offence to procure himself.  It’s just a mechanism by which we would say the accused urged Darren Powell to commit the (indistinct) offence.

Your Honours, the case was put by the learned judge to the jury in similar terms.  Now, your Honours, it is said against us that there are two ways of committing the offence of kidnapping which is the substantial offence with which – which was incited on the Crown case, but we say there is only one offence of kidnapping.  The reference by the Crown to “procuring” was simply a reference to – or a description of the way in which Mr Powell was to participate in the respondent’s plan.  So, in urging the commission of the offence of kidnapping, the respondent urged a particular course of action which would involve Powell, if he in fact participated, through to completion, being an accessory.

KIEFEL CJ:   Does that mean that one reads section 47(1) to say if a person urges the commission of an offence by any means when one is not concerned with the means by which it is commissioned as long as one urges the commission of an offence it is complete and one has the requisite intention?

MR WHITE:   Yes, your Honour, and the timing issue is crucial and we will come back to, but it is inherent with what your Honour the Chief Justice just put to me that the offence is complete at the time of the urging.  Perhaps I can go to what we say the elements of the offence of incitement are by reference ‑ ‑ ‑

GORDON J:    The fact that it ….. at the time of urging is made clear, is it not, by subsection (4)?

MR WHITE:   Yes, indeed it is.  There were other models in the law reform that were available for the offence of incitement including the Victorian model which requires the completion of offence before incitement can be charged, but that model was not chosen.  Let me just go to what we say the requirements for the Crown to prove under the provision are.  First of all, there has to be an urging, that is conduct, there has to be intention accompany that, that is the default element which is supplied by the Code. 

There are two other matters which, we say, are epexegetical of what it is to urge the commission of an offence.  The first is that what is urged be an offence and that is implicit in subsection (1), and the second is supplied by subsection (2) that the person has to intend that the offence incited be committed.  So, those two matters which we describe as epexegetical in line with LK, the authority of LK, are matters that the Crown has to prove, there is no doubt about that, but they are not elements of the offence as such.  They are not elements to which the normal fault elements apply.

BELL J:   In LK it was noted that if one were to treat the matters the equivalent to section 48(2) in the ACT Code as elements of the offence and apply the approach governed by the Code in that respect, it would produce some rather bizarre consequences and emphasis was placed on identifying the law creating the offence.  The joint reasons in LK made clear that when applying the structure of the Code to offences it is perhaps better to look at individual problems as they arise. 

So, I raise that with you simply to inquire, the parties seem agreed that in light of LK the way to understand this offence is that it is wholly contained, that is, the law creating it in section 47(1). I suppose another way would be to consider that the physical element is stated in 41(1) and 47(1) and 47(2) is the statement of a bespoke fault element for that physical element. Is there ‑ ‑ ‑

MR WHITE:   That could be but that subsection (2) looks very like what we used to refer to as ulterior intent ‑ ‑ ‑

BELL J:   Yes.

MR WHITE:    ‑ ‑ ‑ and your Honours will be aware that the question of ulterior intent was, effectively, a cul‑de‑sac that we seem to be trying to exit out of, but normally one would expect certainly that the urging would need to be intentional.  So the breakdown I gave your Honours incorporates that, but to answer your Honour’s question, I am not sure that it matters for the resolution of the case which construction one puts on it. 

In all events, those are matters for the Crown to make out, whether they are properly described as elements of the offence or not, they are matters that the Crown must make out if it is to make a case.  But to pick up the timing point again, the time of the commission of the offence is at the time of the urging with the requisite intents or exegetical matters being – arising at that time. 

I will come in due course, your Honours, to the Chief Justice in the Court of Appeal’s element breakdown which was not in any respect with respect to her satisfactory, but perhaps if I can move on to just framing the issues in the case for your Honours. I think the parties are agreed that the two issues are firstly, in the circumstances which I have outlined to your Honours, does that amount to an incitement under section 47? Below, the Chief Justice said no.

Justice Wigney said it did and Justice Refshauge did not express a concluded opinion on that matter. Now, with respect to Justice Refshauge, that might be thought to be somewhat strange because one might have expected that that matter would be dealt with before it was necessary to move onto the second question of whether a section 47(5) is engaged. Nevertheless, his Honour did not do that but in order to frame the matter for your Honours, the respondent has put on a notice of contention so the matter arises for your Honours and both parties invite your Honours to consider it.

The second issue, of course, is assuming that it is possible to incite in circumstances of the current case, were sections 45(2)(a) and 45(3) a limitation or qualifying provision for the purposes of section 47(5)? Now, subsections 45(2)(a) and (3) are subsections in the section 45 dealing with complicity, accessorial liability, and they are subsections which require for accessorial liability to attach for there to be a completed offence and the issue is are those provisions picked up by section 47(5) which provides that:

Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of incitement in relation to the offence.

So, on that question, Justice Wigney, with whom Justice Refshauge agreed, found that they were – those provisions were picked up by that provision – and Chief Justice Murrell who, of course, found it not necessary to decide the question, found the position arguable. 

Your Honours, perhaps if I go to the way in which section or Part 2.4 of the Code is set out and your Honours will appreciate that the provisions of the ACT Code are very similar to the Commonwealth Code. I am not aware of any particular material differences but in the materials both sections of the Codes are respectively set out. But Part 2.4 although headed “Extensions of criminal responsibility” actually deals with two types of provisions. The first set of provisions are what we call the “inchoate” provisions. So there is “attempt” under section 44, there is “incitement” under section 47, and there is “conspiracy” under section 48 and those are classically inchoate provisions and in respect of each of those provisions they may be – they are complete notwithstanding the further commission of a further substantive offence.

So, it is a feature of each of those three offence creating provisions that they provide their own penalties. In relation to the offence of “incitement”, the penalty is set out in section 47(1) and they are differential penalties depending on the offence which is urged, the offence “incited”. The maximum penalties for inciting an offence are less than the maximum penalties for committing the offence which underlines, in our submission, the fact that incitement is its own offence, is a discrete offence and is complete in itself and complete at the time of the urging and with the establishment of the other matters. So that is one aspect of those provisions. Another is that in relation to all of those provisions, those three provisions, impossibility is not a defence and all of them have the provisions similar to section 47(5) to which I have taken your Honours.

Now, there are some exclusions from combining those offences with other provisions in Part 2.4.  So a person cannot attempt to be complicit in another offence or attempt to conspire under section 44(10).  In relation to the offence of incitement, inciting an attempt, inciting a conspiracy or inciting an incitement are all precluded.  So we draw some significance, of course, in the fact that there are some specific exclusions from the way that those sections operate with other sections within Part 2.4 because, of course, there is no express exclusion of inciting to procure and we say that that is of some significance.  Now, your Honours ‑ ‑ ‑

GAGELER J:   What is the difference between “inciting to procure” and “inciting to incite”?

MR WHITE:   Well, the “incitement to incite” would simply be to incite another person to urge a third person to do something.  That would not make the person incited by the first inciter a participant in any criminal liability.  So, the difference is in the role which is selected for the person who is the subject of the incitement.  So, to pick up this – that is my answer, your Honour, to your Honour’s point.

NETTLE J:   But would not the urging that constitute “incitement” go very close to the procuring which constitutes aiding and abetting?

MR WHITE:   There could often be an overlap.  Incitement would normally only be charged where there was no completed offence because, as here, the Crown was entitled to take the view that what the respondent did was a dastardly crime but there had been thankfully no completed offence, but if there had been a completed offence then depending on how the offence was completed the respondent may have been a secondary participant in that offence. 

So, there is no clear delineation between what might constitute “incitement” on the one hand and “procuring” on the other hand.  Those will be matters of fact and evidence.  But if all that is done is I incite you to incite another person to do something without enjoining you to participate in any way in that criminal offence, well, that is an incitement to incite and that may be thought to be too remote from the commission of any offence.  But the concept behind the exclusions, one apprehends, is of course to ensure that things which are too remote from the commission of offences are not if not themselves offences and that is presumably why there has been a selection of incite to incite as a preclusion.

KIEFEL CJ:   Are you necessarily reading section 47(1) to say that a person must urge another person to commit an offence?

MR WHITE:   No.

KIEFEL CJ:   It is contained, but one could read it as urging the commission of offence as setting in train a process by which an offence is committed and that, if it is understood in that way, you take out some of the problems with procurement and incitement, do you not?

MR WHITE:   Yes, and we put particular emphasis ‑ ‑ ‑

KIEFEL CJ:   In that way you are saying urging the commission of an offence has inherent in it that it be committed either by that person or another person because the section is not concerned with the means by which it will be carried out.

MR WHITE:   Indeed, we place store in the use of the word “commission”.  The offence is not urging a person to commit an offence, the offence is urging the commission of an offence.

KIEFEL CJ:   It is urging it to be done in some ‑ ‑ ‑

MR WHITE:   There are many circumstances in which one can understand incitement taking place.  Incitement might take place to a group of people, or there might be no direct audience, there might be an audience over the internet or something like that.

BELL J:   Classically, one may incite the commission of an offence by the publication in a newspaper of material thought to have that effect and so, I suppose, one can conceive of circumstances, as plainly the common law did, of an incitement to incite being distinct from conduct amounting to procuring the commission of an offence.

MR WHITE: Yes. So, your Honours, can I come to the use of the word “urges” in section 47? That was part of the law reform process that that word was thrown up. It actually emerged out of the MCCOC final report which is part of the materials, your Honours, at page 211 of the materials if I can take your Honours to that. I will try not to take your Honours to too much of the commentary, it is well set out in our submissions. But, in any event, in the paragraph on “incitement” there is a discussion – this is 404 of the document – there is a discussion about the various different formulations of “incitement” and the committee came down on selecting the word “urges” to avoid ambiguity in other formulations that had been available. So that is where the word “urges” comes from, your Honours.

Now, your Honours, I think if I take your Honours now to the second set of provisions which are provided for in Part 2.4, those are probably more truly described as extensions of criminal responsibility. They are complicity, joint commission and agency and those, we say, are modes of proof of an offence. Now, all of those are – provide that an offence is taken to have been committed if certain things are satisfied. In the case, for example, of section 45, it is required that there be a completed offence before a person can be taken to have committed that completed offence and one can understand why that is so. But that is quite a distinction, quite a contrast, in our submission, to those inchoate provisions.

KIEFEL CJ:   This is your point you made in written submissions, that provisions like section 45 operate retrospectively.

MR WHITE:   Yes.  Now, your Honour, the issue of – if I come directly to the issue of whether, or the extent to which the issue of whether there could be incitement to procure was raised in the law reform materials and I think it is well set out, canvassed in both submissions.  The Gibbs committee considered this issue and they considered that there was no particular reason why there should not be incite to procure or that that should not be the subject of the criminal law.  I think perhaps the best way of dealing with that matter is simply to refer your Honours to what Justice Wigney said in the Court of Appeal at paragraph 98 of his judgment which is on appeal book 89 and he goes through the history of the Gibbs Report:

The Gibbs Report recommended that “it should be made clear that it is an offence to incite a person to assist, encourage or procure another person to commit an offence”. 

Now, that was in the context of some law reform reports from the United Kingdom which seem to cast doubt on that issue.  We say that it is not at all clear that at common law there could not be an incitement to procure and our submission is that the Gibbs committee is not to be taken to have accepted that there was a problem which needed to be corrected, rather there was a problem that needed to be clarified.  So there is not an acceptance by the Gibbs committee, in our submission, there was at common law an inability to charge or allege an incitement to procure.  As his Honour Justice Wigney said in paragraph 98 of his judgment:

If anything that suggests that the authors were of the view that it was an offence to incite someone to procure the commission of the offence, but in light of the contrary view taken in the United Kingdom, that position should be made clear.  Whilst that recommendation was not apparently taken up, that may have been for any number of reasons, including that it was not considered that such a clarification was necessary.

The fact is we have in Part 2.4 some specific preclusions that I have taken your Honour to and there is no preclusion of incite to procure which must, in view of the legislative history, have significance, in our submission. There is not much else, though, that we can point to by way of the legislative history. There was not much discussion – further discussion about this issue before the MCCOC report came up with the form of section 47 as it pretty much now is.

So, your Honours, I just want to come to the way in which the learned Chief Justice dealt with the matter below.  I have to say to your Honours that we are generally very content to rely upon the judgment of Justice Wigney which, with respect, refutes the position put by the Chief Justice and I do not see a need to take your Honours chapter and verse to the way in which Justice Wigney did that because it is set out in terms much more eloquent than I could achieve, but we refer your Honours essentially to those paragraphs of Justice Wigney’s judgment which deal with the way in which the Chief Justice found.  But could I just take your Honours first of all to her Honour’s formulation of the elements of incitement and this is where, with respect, the trouble began.  This is at paragraph 21 of her Honour the Chief Justice’s judgment at appeal book 75.  Her Honour said:

Any offence of incitement involves two physical elements:  the conduct of urging, and the state of affairs that what is urged is an offence.

So, your Honours, with all respect, that is simply insupportable that statement.  The reference to “state of affairs” is particularly discordant because the state of affairs is a species of conduct which was inserted specifically to cover the concept of possession.  Her Honour may have been attempting to say – to refer to that that the issue of what is an offence to be a circumstance in which conduct occurred and that probably is a fairer way to read what her Honour was saying. 

Even that would, we say, give rise to difficulties because if it were a circumstance, recklessness would apply to it. So, with respect, the formulation that we put to your Honours we respectfully suggest is a better formulation. But it did seem that her Honour did go rather off the rails, with respect, right from the start of her judgment. But, as I say, your Honours, unless there is anything particular that I can take your Honours to, I prefer not just in the interest of saving time to rely upon what Justice Wigney has said in relation to that. Now, your Honours, that comes through – that allows us to move forward to the issue of section 47(5) which provides that:

Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of incitement in relation to the offence.

Now, our first point is a very simple one that when section 47(5) refers to “an offence”, it is referring to what we call the “principal offence” and in this case, that of kidnapping. So, to take up your Honour the Chief Justice’s point, that reference to procuring and so on is really a reference to a mode of proving the commission of an offence, but what is important is that if there are principal offences like kidnapping which have attached to them any defences, procedures, limitations or qualifying provisions, then those same things should also apply to the offence of inciting that substantive offence.

BELL J:   I think that is against a background that it had been held in England that, because incitement is itself a discrete offence, any limitations or exceptions in relation to the offence “incited”, of a procedural kind, did not apply.

MR WHITE:   Yes, and it was necessary in the law reform to correct that and that was identified in the law reform, which we refer to in our submissions, as being a matter that was necessary to be corrected or clarified, and it was clarified.  But we are left with what exactly is meant by these words “defence, procedure, limitation or qualifying provision”. 

Your Honours we say, first of all, a defence is not a difficult issue in terms of what is meant by “defence”.  We say that that is a matter on which an accused person would bear an onus, sometimes called “a true defence”.  A procedure is again not productive of any difficulty.  A procedure might be the requirement for the Attorney‑General or the Director of Public Prosecutions to consent to a prosecution and, if it were necessary for those people to consent to a substantive offence, then they should consent to the offence of inciting the commission of that offence.

Limitation, we say, is a time limitation and again we have set it out very clearly in our submissions.  I can take your Honours to it but it is quite clear that the reference to limitation is in the context of time limitations and it is clear that if there is a substantive offence which must be, for example, the prosecution of which must be conducted within a particular time, then the same limitation should apply to the offence of inciting that offence.  However, the words “qualifying provision” do give us some more difficulty.

Before I move on from that, there has been a tendency in the authorities to lump together those last two concepts within section 47(5), and in fact that was what Justice Whitney did in this case. He referred to “limitation or qualifying provision” as though that were a discrete concept but we say in fact it is two concepts. So, for the purpose of our argument, we concentrate on what is a qualifying provision.

There is not, first of all, a lot of context in the law reform material to assist us in this, but in the final Gibbs Report there was a suggested provision, and this is at page 194 of the materials.  This was to be a provision which abolished the common law rule.

GORDON J:    What paragraph is this, please?

MR WHITE:   It is right at the end, “Proof of exceptions”, your Honour.  This provision, suggested by Gibbs and ultimately taken up, was to suggest the removal of the old common law rule that, if a statute creating an offence introduces a matter of exception, qualification or excuse, then the person prosecuted would have to prove those things.  That was taken up ultimately and that reflects the law as it now is, at least in the Commonwealth and ACT sphere.

KIEFEL CJ:  How does section 47(5) work in practice with respect to the offence of incitement, for example?

MR WHITE:   That is the question we were rather hoping we would not be asked because we have not been able to find an example of a qualifying provision, and the reason for that is that what are often put forward as qualifying provisions are, on closer examination generally, ways of describing an offence.

For example, it is said that a limitation of a class of persons is a qualifying provision but it would be a matter for the Crown to prove that the offence was, for example, committed by a person who was of that limited class.  So that would seem to be an element of an offence.  So we are unable to give you an example.

KIEFEL CJ:   Given that the offence need not be committed, which is made clear by subsection (4), it is just difficult to see how it operates.

MR WHITE:  It is. The point I was making by taking your Honours to that provision was that that is, as far as we can see, the genesis of this idea of exception, qualification or excuse, albeit in a completely different context, but MCCOC then, without any further discussion, recommended in relation to the inchoate offences provisions like section 47(5).

Also in another part of the Code to do with burden of proof, there is provision to do with the legal burden and how that is discharged, and an evidential burden, which is discharged and that is in relation to the – I will take your Honours to that – the materials on 147.  So this is section 85(3) of the Code and that says:

Subject to section 59, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an office … has an evidential burden in relation to that matter.

So it is unexplained other than that in terms of the legislative history.  There was the reference clearly defences were to be made available, limitations were to be made available, procedures were to be made available, and at some stage someone has thought it is a good idea to put in what might be a portmanteau description, qualifying provisions, to capture those sorts of provisions as they are described in section 58(3).

The submission we make in relation to that, your Honours, is it must be remembered that this was supposed to be a national Code – the rate of take-up has not been as spectacular as possibly the authors might have hoped – and that would, of course, seek to gather in a whole diversity of provisions in State legislatures which would list in different ways justifications, excuses, exemptions and so on.  So our submission is that the portmanteau description of qualifying provisions was put in to describe those sorts of provisions.

A qualifying provision – we set out the etymology of the words in our submissions, but it is a provision which modifies another provision.  So, in the context of a prosecution, it is presumably a matter where it is akin to an excuse in that type of matter but it is in fact a matter on which the accused bears an evidential onus which then passes to the Crown if ‑ ‑ ‑

BELL J:   But what the Code wanted to make clear was, even with those matters, however you style them ‑ whether exception, qualification, defence – where the defence bears an evidential onus, the persuasive or legal burden remains with the Crown.

MR WHITE:   Yes, that is so.

BELL J:   And that is the broad intent that one can discern.

MR WHITE:  It is, and that is really all that can be found in terms of the law reform materials in terms of where section 47(5) comes from, but it is difficult to find examples that might qualify as qualifying provisions. I think we have referred in our submissions to some cases where the matters were discussed. I will come to Justice Wigney’s treatment of Onuorah Case New South Wales in a moment but there have been some attempts to suggest that matters are qualifying provisions but none has been successful.

BELL J:   If you go back to the Gibbs committee’s recommendations, the Gibbs committee considered that the incitement offence, it should be made clear that what was described as procedural requirements, such as time limits and consents to prosecution, would be applicable in relation to the offence of incitement.

MR WHITE:   Yes.

BELL J:   There is simply no explanation for the addition ‑ ‑ ‑

MR WHITE:   For the additional words, no.

GORDON J:   There is nothing, as I can see it, in the same language dealing with the attempt provisions, the same use of the language.

MR WHITE:   Yes, the attempt provisions have an identical provision, section 44(7), if that is your Honour ‑ ‑ ‑

GORDON J:   Yes.

MR WHITE:   I see in the law reform – indeed.  We have searched all Law Reform Commission materials, not just those relating to incitement, and that seems to be the conclusion, your Honours.  Yes, your Honours.

Can I go back then to the way in which Justice Wigney dealt with this matter?  His Honour, in our submission, made a fundamental error in relation to this issue of timing because having quite correctly identified the way in which incitement would work and it was possible to prosecute for incitement, even though it was impossible to complete the offence and all those sorts of things, his Honour then came up with a very strange formulation in relation to the timing and the formulation was set out in paragraphs 85 and 86 of his Honour’s judgment which is found at appeal book 86.

He reached a conclusion that a person could be charged with an offence of incitement contrary to section 47 in circumstances where there was an incitement to procure but they could not be convicted of that offence. With all respect, that is a novel and dangerous departure from the normal way in which the criminal law operates. The offence of incitement, in our submission, is either complete at the time of the urging with the requisite matters or it is not. It cannot be perfected by a condition subsequent. Contrast to the position of Victoria, for example, where no offence of incitement is committed until there is a completed offence.

So his Honour’s quite extraordinary conclusion was really an attempt to retrofit, with respect to his Honour, his interpretation in relation to section 47(5). In other words, it was necessary in light of the way in which his Honour saw section 47(5) to operate, to revise the issue of timing, but we say that is a clear marker that his Honour was, with respect, wrong.

Can I just take your Honours briefly to the way that his Honour dealt with one of the few cases that has looked in any detail at this issue of what is a limitation or qualifying provision and that is Onuorah’s Case.  His Honour dealt with that at paragraph 110 of his judgment, which is at paragraph 91.  I do not need to take your Honours to the case; I will just take you to the way in which Justice Wigney dealt with it.

His Honour Justice Wigney, at paragraph 110, noted that “there is not much authority in relation to it”.  I think that is if anything an understatement.  The matter had been considered in Onuorah by Justice Hodgson and there had been reference to this Practitioners’ Guide.  The Practitioners’ Guide is a fairly, if I might say, low-level commentary on the way that the Criminal Code operates.  There was no attempt in the Practitioners’ Guide to go through the history of the provisions or anything like that, but the author of the guide hazarded a couple of examples that might amount to limitations or qualifying provisions.

One of them was an example of a person who had mistakenly brought into Australia what they believed to be a border controlled substance but was not in fact a border controlled substance, which was quite close to the situation in Onuorah.  Onuorah was a case where the charge was attempting to possess a border‑controlled substance which had been completely substituted overseas.

So that was one example that the author of the Practitioners’ Guide came up with.  The other was that maybe qualifying provisions related to the class of persons who could commit an offence.  So, for example, an offence of taking an abortifacient drug could only be committed by a pregnant woman, therefore, that was a qualification to that offence.

Now, in relation to that second example, Justice Hodgson was attracted to that example more than he was to the first example but he did not have to decide that to determine the matter that was in front of him.  Justice Wigney, in any event, was not so attracted to that example and so in that respect we agree with Justice Wigney because it does seem that that example – that is, that an offence that can be only committed by a particular class of person is really a matter respecting the elements of the offence or the matters that the Crown must prove.  So the Crown would have to prove that there was a pregnant woman and that would be simply, if not an element of the offence, then at least epexegetical of what it would be to commit that offence.

The other example about the attempt to possess Justice Hodgson dismissed as being of relevance but Justice Wigney seemed to have been attracted to and, for reasons that with all respect his Honour are not completely clear from the judgment, seemed to think provided – and he says at paragraph 112 of his judgment:

that analysis –

that is, in relation to the example I have taken your Honours to:

applies to the facts and circumstances of Mr Holliday’s case in relation to the incitement counts.  Mr Holliday was alleged to have urged or incited Mr Powell to procure a third person to commit the offence … A limitation or qualification on liability for the offence incited was not only that Mr Powell procured a third party but that the third party in fact committed that offence.

So that is the way in which his Honour takes in that example but, with all respects, the example which he takes in is on very shifting sands or uncertain foundations and it was specifically the ratio of Onuorah’s Case or in the ratio his Honour Justice Hodgson dismissed that as applicable in the case.

So we say that the way in which his Honour Justice Wigney reasoned that these matters set out in section 45, which require the completion of an offence before someone can be held liable to complicity in the offence was somehow relevant to the offence of incitement to kidnap.

NETTLE J:   Can I just ask you about that?  To go back to something you said before about defences, as I understand you, you said that the principal offence here is not being complicit in kidnap but is kidnap because the complicity provisions are relied upon only as a matter of proof. 

MR WHITE:   Yes.

NETTLE J:   Is that right?

MR WHITE:   Well, not exactly, your Honour, in the sense that it is not necessary for the Crown to prove any actual complicity for the offence of incitement to be made out.  So what we say is rather than a matter of proof they are simply a description of the mechanism whereby the respondent planned for the offence to be committed.  So it is not really part of the Crown case that there was anything done complicitly by Powell in this case.  What is part of the Crown case is that the respondent, in urging the commission of the offence, had a plan that involved Powell being complicit with others.

NETTLE J:   So does that mean that despite Justice Wigney’s implicit criticisms of the indictment earlier on, you say that the way you pleaded it was correct?

MR WHITE:   Yes.

NETTLE J:   For that reason?

MR WHITE:   For that reason, yes, your Honour, and the Crown opened on that basis.

NETTLE J:   No, I understand that.

MR WHITE:   So yes, your Honour.

NETTLE J:   Therefore you would say Justice Wigney is wrong in drawing any attention to complicity.  It is all about the kidnapping itself.

MR WHITE:  Yes.

NETTLE J:   And that is all.

MR WHITE:   That is the way we put it, your Honour.

NETTLE J:   Yes.

GAGELER J:   Is one way of capturing the point that if you look at the language of section 47(1) and you look at the word “urges” to ask another person to procure an offence is to urge the offence. Here, the only offence, relevantly, is the offence of kidnapping under section 38 of the Crimes Act. 

MR WHITE:   Yes.

GAGELER J:   So, if that is the way that you interpret the word “urges”, you do not even go through section 45.

MR WHITE:   No, you do not, you do not.  There is no ‑ ‑ ‑

GAGELER J:   You do not engage with it in any way.

MR WHITE: In our case, or in our argument to your Honours, there is no engagement with section 45 at all.

GORDON J:   That is not the way that it was run at trial.  This is the point.

MR WHITE:   Yes.

GORDON J:   So that now matches the indictment.  The indictment does not refer to 45 at all.

MR WHITE:   When one looks at what the Crown Prosecutor put – and I put that to your Honours before – the Crown Prosecutor did make a reference to a matter of law involving Darren Powell procuring others to commit the offence would make Darren Powell guilty of committing the actual offence.  That was echoed by his Honour in the way he charged the jury, but that was not part of any chain of proof that the Crown engaged on.  It was clear that there had never been any participation by Powell and it was not alleged that Powell was complicit at any time. 

It was simply a description of the mechanism whereby the respondent planned that the offence of kidnapping be carried out.  So that is the best way I can answer your Honour, Justice Gordon’s question.  Your Honours, can I just – I think, really, your Honours have essentially what my argument is. 

KIEFEL CJ:   Yes, Mr White.

MR WHITE:   I think – I am not sure, your Honours, that I need to ‑ ‑ ‑

GORDON J:   Sorry, just before I leave that point ‑ ‑ ‑

MR WHITE:   Yes.

GORDON J:    ‑ ‑ ‑ so is the position that when Chief Justice Murrell identifies it, or seems to understand it by reference, I think her Honour says:

by operation of s 45 of the Criminal Code –

at paragraph 73, that is not right? Because it seems as though the Court below, at least, understood it was through the prism of section 45.

MR WHITE:   Yes.  So, that is actually Justice Wigney, your Honour.

GORDON J:   Sorry, you are right.  It is Justice Wigney at 73 ‑ ‑ ‑

MR WHITE:   Yes, yes.

GORDON J:    ‑ ‑ ‑ and Chief Justice Murrell at 628 ‑ ‑ ‑

MR WHITE:   Yes.

GORDON J:    ‑ ‑ ‑ seemed to be foundered on the premise that 45 was engaged as well.

MR WHITE:   Yes, indeed.

GORDON J:   And they are both wrong about that.

MR WHITE:   Yes, yes.

GORDON J:   So it is just through the prism of 47.  One never gets to 45 on this analysis.

MR WHITE:   That is so. 

GORDON J:   I understand.

MR WHITE:   Your Honours, unless there are other matters.

KIEFEL CJ:   Yes, thank you, Mr White.

MR WHITE:   Thank you, your Honours.

KIEFEL CJ:   Yes, Mr Odgers.

MR ODGERS:   Thank you.  Your Honours have the outline, I trust.

KIEFEL CJ:   Yes.

MR ODGERS:   We do submit that the words “urges the commission of an offence” should be understood as fixed by the pre‑existing law in a similar way to that which the High Court in LK and RK held that similar words in the conspiracy provision under the Commonwealth Code were to be understood to be fixed by the common law – subject to express modification.  It is true that one of the limbs of the analysis in LK and RK does not apply.  We are not relying on the word “urges” as in contrast with the word “conspires” which was the word which was said to bring in the particular meaning of the common law.

But it is clear from the MCCOC report that it was intended that 47(1) as the provision that was proposed which became 47(1) – well, it became 11.4, of course, in the Commonwealth Criminal Code and then it has been adopted in the ACT that that should reflect the common law position.  If you go to 211 in the materials, your Honours will see in the discussion of incitement in the final report, it is stated at point 5 on that page:

In the Discussion Draft, the Committee followed the Gibbs Committee Draft Bill, s. 7B(1) in merely specifying “incitement” rather than spelling out the common law of counsels, commands or advises” –

So, I would stop there and say they did not spell out the common law but it was clearly intended that what was proposed would reflect the substance of the common law.

BELL J:   But do you not have to see the Gibbs committee as making recommendations for the offence of incitement against a background of the statutory offence in 7A of the Crimes Act that had been introduced in 1920?  When you talk about understanding the words “urges the commission of an offence” as though that has a fixed meaning at common law, you start with the fact that back in 1920 we had departed from the classic statement of the common law and adopted a provision that departed and indeed extended common law quite significantly, and then you get the Gibbs committee making recommendations on top of that which involved the use of the word “incite” to include the words “urge” and “encourage” really by way of departure from the statutory provision that then existed.

MR ODGERS:   Yes.

BELL J:   I am just not sure.  It is not quite as clear as the conspiracy ‑ ‑ ‑

MR ODGERS:   No, I understand that the history is different, but the essence of the argument that is being put is that that paragraph, and particularly where they proceed to say that they do not want to use the word “incite” because that has been interpreted to only require that they are causes rather than advocates the offence they specifically – so they are avoiding the word “incites” for that reason, and the committee decided that the word “urges” would avoid this ambiguity while capturing the essence of the offence.

We submit that that paragraph conveys that the intention of the committee was that the offence as drafted reflect the common law proposition or the common law offence, even though the word “chosen”  “urges” was not precisely the same as the common law formulation of counsels, commands or advises.  It conveyed the same concept and we say it was chosen for that purpose.  This is not an essential step in our argument.  It is merely an introductory aspect of what we say the committee was intending to achieve.

We also submit that, consistently with LK and RK, that the succeeding provisions of 47 – that is, 47(2), (3), (4), (5), (6), and particularly 47(5), as with the Commonwealth Criminal Code 11.4 subsections after subsection (1), to use the language of RK and LK, are epexegetical of 47(1).  That is, none of them are to be understood as elements of the offence.  Rather they are to be understood as conveying more clearly the meaning intended in 47(1) of “urges the commission of an offence”.  That will be relevant to the second limb of our argument, which is to adopt what Justice Wigney held below.

But before I come to that, just continuing with this argument based on an understanding of pre‑existing law which we contend the committee should be understood to have intended to adopt, I think it is true to say that that pre‑existing law is not entirely clear.  There is academic writing.  Your Honours have probably seen that.  There is lower level authority which the academic writing refers to and, as we say in our outline, there seem to be two approaches in respect of that pre‑existing law. 

The first approach, which was a view expressed by the UK Law Commission and referred to by the Gibbs committee report, is that there is no offence of inciting someone to be an accessory to the commission of a substantive offence, and that part of the Law Commission report is extracted in the Gibbs committee report and also in the materials at 221.

KIEFEL CJ:   The third possibility might be that it is unnecessary to view the offence of incitement in either of these ways, in line with the argument.

MR ODGERS:   Yes.

KIEFEL CJ:   And that they are really beside the point.

MR ODGERS:   Yes.  That is true.  I understand that.  There is nothing in the materials in the Gibbs committee or the MCCOC committee which appears to have reflected an interpretation of the words “urges the commission of an offence” in that way.  Given that there had been an extensive debate about whether or not inciting to conspire or inciting to incite or inciting to be an accessory were offences known to the law, we say it is significant that there was limited discussion of that issue and it is a big jump to conclude that it was intended that 47(1) and indeed other provisions in the Codes which use similar language were intended to apply to a situation where the conduct urged of a person is not limited to their own conduct but extends to how they might obtain other people to engage in conduct.  We say ‑ ‑ ‑

KIEFEL CJ:   Why, because in a way the urging of a commission of an offence has a more simple foundation?  These are complications that may not be necessary for the completion of the offence.  The example that Justice Bell gave of publication of an incitement is quite apt, is it not?  You would be inciting persons you did not even know.

MR ODGERS:   Yes.

KIEFEL CJ:   It is not directed to a particular person to commit an offence, and the means by which the offence is going to be undertaken, whether by that person or through the agency or of another, is really beside the point.  The offence is complete once the urging of the commission of another offence is made.

MR ODGERS:   We would say that one difficulty with that interpretation is 47(6), which of course specifically directs that the offence does not apply to an incitement to conspire or an incitement to incite, and that, we would say, would be inconsistent with extending liability in the way that is suggested.  In essence it is prohibiting liability being imposed or extending liability to a situation where you are not inviting a particular person to engage in conduct but inviting that person to seek somebody else out.

To take the example of the newspaper, you are inciting lots of people.  You are inciting everybody who reads the newspaper, so you are inciting the conduct of unknown people to commit the offence.  But the situation here is different.  The incitement was to Powell specifically, and it was not to Powell to commit the kidnapping.  The incitement to Powell was to get somebody else to commit the kidnapping, which is a different situation.

NETTLE J:   Which is tantamount to inciting Powell to incite?

MR ODGERS:   Yes.  That of course is one of the limbs of our argument, the second aspect of the argument.  If it is an offence known to the law, we say that because it is not an offence to incite to incite, equally it is not an offence to incite to be an accessory unless and until the substantive offence is committed, because in substance what you are doing is inciting somebody to incite.  That is how we put it.  Whether that is the best way to put it is another matter, but, yes, we do argue that.

BELL J:   One of the oddities when you look at the history and you invite the submission that, but for statutory modification, this is an attempt to adopt the common law, a difficulty you face is that whilst it was controversial as to whether one could incite a person to aid or abet or procure the commission of an offence, and it may be that the better view is, as you put it, that that was not an offence known to law, I am not aware of any doubt that it was an offence to incite to incite at common law.

MR ODGERS:   That may well be right, your Honour, but interestingly enough the Code has chosen to make it not an offence.

BELL J:   And the Code chose that, saying it was following in relation to the offence of incitement the Gibbs committee recommendations, at least in some respects.  The Gibbs committee looked at this and, contrary to the United Kingdom Law Commission, said, “We should not have an offence of inciting to incite and we should make clear that one can incite to aid, abet or procure.”

MR ODGERS:   Yes.  I understand that point and I will come back to that in a moment, but that is a little bit later.  I will respond to that.

In respect of the outline, your Honours appreciate the two ways in which we say the pre‑existing law could be understood, and I will not take your Honours to what Justice Isaacs held in Walsh v Sainsbury but we say that it is clear that on his analysis in respect of similar legislation the proper approach is that where a prosecution is relying on accessorial liability in combination with incitement that the offence is not made out – incitement is not made out until and unless the substantive offence is committed.  We say that both ways of interpreting the law or understanding the law reflect the propositions which we have articulated in point 3. 

KIEFEL CJ:   How do they stand against subsection (4)?

MR ODGERS:   That is the impossibility.

KIEFEL CJ:   Yes.

MR ODGERS:   They stand, we say, without difficulty.  The point is, getting back to the language of “urges the commission of an offence” in 47(1), the issue before this Court is: what was urged?  What was urged was certain conduct.  That conduct which was urged would not necessarily constitute the offence or be deemed to be the offence of kidnapping.  The conduct urged would only become the offence of kidnapping if the kidnapping took place.  So that this is not a situation of factual impossibility; it is rather whether or not the conduct that was urged, if it had been carried out, would constitute an offence.

KIEFEL CJ:   What is the social wrong?  What is the point of being an offence that talks about urging if the principal offence to which it is directed has to be carried out?  What is the point?

MR ODGERS:   No, your Honour, if I might put it this way, at a higher level.

KIEFEL CJ:   That means I probably will not understand it.

MR ODGERS:   No, I am sorry.  I mean by that a high level of generality which is not so much the question of whether or not it is going to be carried out, it is more the basic point which is to commit the offence under 47(1) the thing that has to be urged has to be an offence.  That is the proposition.  If what is being urged is not an offence, then plainly you are not guilty.

KIEFEL CJ:   But that is not the same as saying it has to be committed. 

MR ODGERS:   No, no, but the point is that in this case where the Crown is relying on a deeming provision – that is, you are deemed to commit the offence if certain requirements are met, then you do not commit the offence – Powell would not commit the offence of kidnapping by reason of section 45 as an accessory to kidnapping.

KIEFEL CJ:   The Crown say they are not and did not rely.

MR ODGERS:   No, I understand that but that is a separate issue.  If in fact one is relying upon – and we say you have to rely on it in this case because what was being urged was not conduct by Powell – sorry, Powell was being urged to incite somebody else or to procure someone else.  Therefore there has to be reliance on 45 to impose liability, but if that is the case then Powell would only be committing an offence if the kidnapping took place.  So that the conduct that was being urged – that is, the conduct of Powell in engaging in procuring‑type conduct – would only be an offence if the kidnapping occurred.  That is, the conduct that was being urged may or may not be an offence.  It may be an offence if ultimately a kidnapping takes place.  It would not be an offence if a kidnapping did not take place.

NETTLE J:   Would it be any different if the accused had simply urged Powell to do the kidnapping himself?  There would be no offence until and unless Powell did the kidnapping, would there?

MR ODGERS:   But in that situation the conduct that is being urged is the conduct of kidnapping.

NETTLE J:   Yes.

MR ODGERS:   So that what is being urged is the commission of an offence.  Whether or not Powell did it is irrelevant, and indeed even if it was impossible it does not matter.  The point is that the conduct that is being urged is an offence:  kidnapping.  Conversely here, the conduct that was being urged was procuring ‑ ‑ ‑

NETTLE J:   Is to procure a kidnapping.

MR ODGERS:    ‑ ‑ ‑ a kidnapping.

NETTLE J:   Which if it were done would be an offence.

MR ODGERS:   But it would only be an offence in the event of the circumstance – I do not want to be too technical – that the procuring was successful.  It only becomes an offence ‑ ‑ ‑

NETTLE J:   I understand the point, the fact, as it were, or circumstance as you term it, but in principle what is the difference for present purposes?

MR ODGERS:   The difference is that, on the one hand the conduct that is being urged would constitute an offence if you urged Powell to kidnap.

NETTLE J:   Yes.

MR ODGERS:   That would constitute an offence.  In this case, properly analysed, the conduct that was being urged was inciting or procuring conduct; that is, advising, encouraging someone else to commit the offence.  It is not an offence to advise or encourage another person to commit an offence. 

NETTLE J:   No. 

MR ODGERS:   That is not an offence.  It only becomes an offence if that person proceeds to commit the offence.

NETTLE J:   Thank you.

MR ODGERS:   And that is why 3(c), the critical point which we say founds the common law view that inciting to be an accessory is not the incitement to commit an offence is because it may or may not be an offence depending on what happens down the track, and that is it depends on whether or not the substantive offence is committed, because you are not ‑ ‑ ‑

KIEFEL CJ:   It depends on success.

MR ODGERS:   Yes, in this context, because the conduct that is urged, incited, is not an offence unless something else happens.  In contrast, if you incite somebody to kidnap then, if that conduct is engaged in, it is an offence.

KIEFEL CJ:   But what is the conduct that the common law is saying should not be undertaken?  It is the conduct in urging the commission of an offence generally.  It is the urging.

MR ODGERS:   Yes.

KIEFEL CJ:   And that is why subsection (4) says that even if it is impossible it is nevertheless an offence to urge the commission of an offence.

MR ODGERS:   I think I am going to be repeating myself.  I completely accept that if you urge a person to kidnap then that person to engage in the conduct of kidnapping, then the offence is made out at that point because ‑ ‑ ‑

KIEFEL CJ:   I suppose the difficulty I am having is that, on your argument, if someone urges someone to procure someone to commit an offence, people down the chain commit an offence but the person who set it all in motion does not.

MR ODGERS:   No, no.  On the view that was taken by Justice Isaacs in Walsh v Sainsbury and Justice Wigney in this case, if the substantive offence is committed then there is no problem with the prosecution of incitement.  Indeed there will also be a conspiracy between A and B to kidnap.  There would be no problem with a prosecution.  The problem here – perhaps it might be seen to be a technical one – is that the conduct that was being incited was conduct that would only become an offence if the kidnapping occurred; absent that, there was no offence.

BELL J:   On Justice Wigney’s analysis, when in this circumstance is the offence complete?

MR ODGERS:   As I understand it, it is complete at the time that the substantive offence is committed.

BELL J:   That seems a very odd result in relation to an inchoate offence such as this one.

MR ODGERS:   I understand that it is odd but it reflects the words “urges the commission of an offence” because you cannot urge the commission of an offence if what you are urging is not an offence at that time.

BELL J: But the scheme of this Act deems the procurer of an offence to be guilty of the substantive offence. So when one looks at this scheme, and in particular when one has regard to section 44(10), which speaks in terms “this section does not apply to an offence against section 45”, the complicity provision, when one sees that the draftsperson has excluded conspiracy but there is no exclusion of incitement to commit an offence against section 45, to use the language of 44(10), why would one not favour an interpretation that there is no preclusion against urging the commission of an offence by conduct involving urging a person to aid, abet or procure the commission of an offence?

MR ODGERS:   I understand that.  That argument is one which is available to rebut our first position, which is that there is no offence of incite to be an accessory, but we say that it does not respond to the proposition that because the offence of being an accessory is only made out, because it is derivative, if the substantive offence is committed, therefore, there is no offence of being an accessory until that condition is satisfied.

BELL J: But that is the sort of common‑law thinking that I understand and that informs what you would characterise as the better view; namely, you cannot incite a person to aid, abet or procure an offence because it is accessorial liability, does not arise until the offence is complete. But how do you rationalise that with the concept that the draftsperson employs in Part 2.4 of, to quote it, “an offence against section 45”?

MR ODGERS:   Perhaps I am not understanding the question, but, as I understand it, that reflects a view that it would be open to convict a person – it is an offence known to the law of incite to procure.  It is an offence known to the law.  You can be convicted.  But there is a qualification to that.  Whether you call it a limitation or a qualifying provision within the terms of 47(5) or whether you say that, within the terms of 47(1), there is no offence committed until this condition is satisfied and therefore the condition has to be satisfied.  So in that situation, yes, it is an offence known to the law but it is only committed when the substantive offence is committed, and that is my understanding of the approach of Justice Isaacs in Walsh v Sainsbury.  It is consistent with ‑ ‑ ‑

BELL J:   We are not going back to Walsh v Sainsbury.

MR ODGERS:   No.

BELL J:   We are trying to understand the provisions of Part 2.4 of this Code.

MR ODGERS:   Of course.  But what I am saying is that there is no logical difficulty in saying that the offence of incitement is only made out ‑ is not in this case where there is this route towards conviction.  Where the prosecution is relying on you incite conduct by X, then the offence is made out at the time you incite, because the conduct you have incited is an offence.  Where the prosecution is relying on an extension of liability ‑ ‑ ‑

BELL J:   I understand the argument, Mr Odgers.  I am just directing your attention to the scheme of the part.

MR ODGERS:   Yes.  My response is that those provisions support an argument that it is an offence but it does not exclude this limitation.

I think I am at point 4.  This is the argument in support of the notice of contention; it is the argument in support of the Chief Justice’s conclusion, although perhaps a modified version of it because her Honour did not feel it necessary to determine whether or not the offence existed if the substantive offence, the kidnapping, took place.  She did not feel it necessary to resolve that question. 

The position we put in paragraph 4 is that, whether or not the substantive offence is committed, there is no offence of incite someone to be an accessory to the commission of a substantive offence and the reason we advance for that is that the words “an offence” should be understood to mean the substantive offence, so that it would not extend to a situation where you are deemed to commit the substantive offence.

Now, I appreciate that this might bring me back into the territory of the argument that secondary liability is really a furphy and has nothing to do with this case, but I have responded to that as I have so I will not go back to that.

I will not take a lot of time over this argument.  One of the difficulties is that the materials are rather confusing.  It is true that the Gibbs committee clearly took the view that it should be an offence – at least it should be open to convict a person of incite to be an accessory.  They plainly disagreed with the United Kingdom Law Commission position.  Perhaps if I can just take your Honours to what the Gibbs committee said.  This is at 183 of the materials.  At 18.37 the Gibbs committee extracted that quotation from the Law Commission analysis.  Just noticing that what the Commission said was that it appears to be not an offence known to the law.

The reason . . . is that aiding and abetting is not in itself an offence.  It attracts liability only on the commission of the substantive offence.  Until that offence is committed the incitement is only to do acts which may or may not turn out to be criminal.

I have repeated that language in my analysis.  The response of the Gibbs committee was:

Nevertheless, it is possible to conceive of circumstances where a person is incited to take steps of an active or positive nature to assist or facilitate the commission by another of an offence ‑

BELL J:   Consistently with that submission, on Justice Wigney’s analysis, the offence is not complete ‑ ‑ ‑

MR ODGERS:   Correct, correct.

BELL J:    ‑ ‑ ‑ until the substantive offence.

MR ODGERS:   Substantive offence – the kidnap occurs.

BELL J:   And so it is an inchoate offence that requires the commission of the completed offence?

MR ODGERS:   It is an unusual inchoate offence in that respect, yes, your Honour, yes.  But unusual only because you have to incite an offence and the implications of that flow through in the way I have sought to demonstrate.  There were also some arguments advanced in the written submissions about the consequences of an acceptance of the respondent’s argument, the consequences of acceptance of the result in the Court of Appeal which we have dealt with in our written submissions at paragraph 27 and I will not repeat.

I conclude it this way, the position is that even if there was not an offence of incite to be an accessory, if the notice of contention argument were accepted, if the person proceeds to kidnap – if C proceeds to kidnap, then there is no difficulty in charging both A and B with conspiring to commit a kidnap.  Even if the substantive offence does not take place, but in this case let it be assumed that Powell had made some attempt to procure somebody to commit a kidnap, again it would be an offence - both the respondent and Powell would be guilty of conspiring to kidnap.  So this is not a situation in which it produces an absurd result that people who are plainly caught within the reach of the criminal law escape it through some technicality.

The ultimate question is whether the law should extend so far as to combine two extensions of criminal responsibility and our submission is firstly that they should not and secondly that, if they do combine, that the limitation – I use that language loosely – that applies to one extension, that is, accessorial liability, should also apply to the incitement offence, and there is nothing absurd, we say, about that.  May it please the Court.

KIEFEL CJ:   Do you have any reply, Mr White?

MR WHITE:   No, there is nothing in reply, your Honours.  I should have said though the order that we seek is simply that the convictions be restored if we are successful.  No further order would be required as far as the parties are concerned.

KIEFEL CJ:   I see, thank you.  Mr Odgers, would you provide the note that Justice Gageler requested to the Court within, say, seven days?

MR ODGERS:   Certainly, your Honour.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns until Friday at 9.30 am in Sydney and 9.30 am in Melbourne.

AT 12.38 PM THE MATTER WAS ADJOURNED