Verma v The Queen

[1988] HCATrans 51

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Slll of 1987

Between-

VIRENDRA KUMAR VERMA

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

WILSON J

BRENNAN J
DEANE J

Verma

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 MARCH 1988, AT 2.17 PM

Copyright in the High Court of Australia

C2T33/l/AC 1 23/3/88

MR D. BUCHANAN:  May it please the Court, I appear for

the applicant. (instructed by W.P. O'Brien)

MR B.T. SULLY, QC: May it please the Court, I appear with

my learned friend, MR D. THORLEY, for the respondent

to the application. (instructed by R.O. Blanch, QC,

Director of Public Prosecutions)

WILSON J:	Yes, Mr Buchanan.
MR BUCHANAN:	Your Honours, I apologize for not having, at this time, an outline to hand up to the Court but
I am afraid technology has let me down and I hope
to have it within a very short space of time.
In the meantime, if I could perhaps take the Court,
briefly, through the history of the matter.
This is an application for special leave to appeal from a decision of the Court of Criminal
Appeal of New South Wales, delivered on 9 April 1987,
dismissing an appeal against conviction recorded against the applicant on 17 April 1986 for 12 offences contrary to the HEALTH INSURANCE ACT, offences
that can be summarized as, popularly termed,
medifraud offences.

The essence of the application is that the

provision of the CRIMES ACT governing the number of counts whichmay be included in an indictment,

namely section 370, was contravened by the inclusion

in the indictment presented against the applicant

at his trial, of an indictment containing 21 counts.

The history of the matter, relevantly, is that

on 27 November 1985, that is to say before the

indictment was presented, an application was made

by counsel for the applicant to the trial judge

for separate trials.

(Continued on page 3)

C2T33/2/AC	2	23/3/88
Verma

MR BUCHANAN (continuing): The application did not in terms

seek - or invoke, rather, the provisions of section 370

of the CRIMES ACT. It simply sought separate trials

and I will be taking Your Honours in a moment to the

terms in which that application was on that date

rejected by the trial judge, His Honour Judge Roden.

On 17 March 1986 the applicant was put on

trial for the 21 counts, each of which resulted

in, from the applicant, a plea of not guilty. During

the course of the trial, but at different times,

His Honour directed acquittals on six of the counts, leaving some live 15 counts that went to the jury,

the consequence of which was that on 17 April the

jury returned verdicts of guilty in respect of 12 of

those counts and not guilty in respect of three of them.

On 18 April the applicant was fined and put on a good

behaviour bond by His Honour in punishment in respect

of all of the counts in respect of which a verdict of

guilty was returned.

An appeal against conviction only on a number of

grounds was lodged and the first ground of that appeal -

although the notice of appeal to the Court of Criminal

Appeal is not included in the appeal book, it can be

seen at page 31 of the appeal book, namely that

His Honour the learned trial judge erred in failing to direct separate trials in relation to a number of

counts in the indictment. I do not have with me, and

it is not in the appeal book, the notice of appeal

proper to the Court of Criminal Appeal, but the case

for the applicant today is that that is the ground of

appeal which embraced the argument turning upon

section 370.

WILSON J: And was that the argument presented in support of the

ground 1 ,that is indicated at page 317

MR BUCHANAN: That was part of the argument, Your Honour.

WILSON J:

I see, it would - - -

MR BUCHANAN: There were two parts to the argument, one is

that the indictment should have not have been presented
containing, as it did, more than three counts. That

was dealt with very shortly by the Court of Criminal

Appeal, the leading judgment of His Honour Justice Hunt

recording that at pages 22 to 23.

(Continued on page 4)

C2T34/l/JM	3	23/3/88
Venna

't1R BUCHANAN (continuing): His Honour simply indicated the

nature of the argument. The fact that it was

governed by authority from the Court of Criminal

Appeal of New South Wales and regarding itself as bound by that authority the argument was

rejected in summary terms.

TOOHEY J: And is that the issue before us today, Mr Buchanan?

't1R BUCHANAN: It is, Your Honour.

TOOHEY J:	And the only issue?
't1R BUCHANAN:	Yes, Your Honour.

BRENNAN J: This was. a point that was not taken when the

application was first made for separate trials.

't1R BUCHANAN:	I cannot say that it was, Your Honour, but I would be submitting that because of the authority
which bound the trial judge it is only to be
expected that the point if made at all would only
be made faintly and, in any event, it would seem
to be futile that it be made and I do rely upon
some authority in that regard as not preventing the applicant from litigating that point today
and that authority is the decision of the Privy Council in AJODHA V THE STATE, (1982) AC 204,
contained in the list of authorities for the applicant and the passage concerned is to be
found in the judgment of Their Lordships at
page 222.

WILSON J: In fact, the procedure adopted by counsel for the

applicant at the trial followed the practice in

New South Wales over very many years, did it not, to seek

not to plead section 370 but simply to approach under

section 365.and seek separate trials.

't1R BUCHANAN: That is so, Your Honour.

WILSON J: That practice, cbes that date back to the turn of

the century?

't1R BUCHANAN:  It certainly would seem to, Your Honour, although

there are cases in which the point has been raised

but before the decision of the Court of Criminal

in the Court of Criminal Appeal or rather, the then

Appeal in HASS,which is the decision relied upon

by the Court of Criminal Appeal in this case, the

last authoritative pronouncement had been very early

this century. There had been a number of attempts
to relitigate it or, at least, a couple which are
reported but the Court of Criminal Appeal or the

Full Court did not make any decision-on the point

when raised in those cases.

C2T35/l/SH	4	23/3/88
Verma

WILSON J:	Yes.
MR BUCHANAN:	So, as has been observed by His Honour Justice Toohey,

the application today concerns only the rejection of
the argument in support of the first ground of appeal

seeking separate trials to the effect that section 370

did not permit the applicant to be tried upon the

indictment presented. Your Honours, perhaps it would

be of assistance at this stage if I were to take
the Court to the decision relied upon by the Court of

Criminal Appeal in this case, namely the decision of the

Court of Criminal Appeal in the case of HASS, a 1972

unreported decision, an extremely lengthy decision,

Your Honours.

I have abstracted only those pages which touch

upon, or which introduce or conclude, discussion of

this partic~lar point, for the Court, and I hope that

I am not doing a disservice to either my learned friend

or the facts in that case in so doing.

WILSON J:  We have the benefit of the full judgment in a folder

up here, Mr Buchanan, and I take it the passage that

you have extracted begins at page 15 of that judgment.

MR BUCHANAN:	It does, Your Honour, yes.
WILSON J:	So, if we have all got it, thank you for taking that

precaution, but we do not need to avail ourselves of it.

Perhaps you could hand it up and it will save us - - -

MR BUCHANAN:	Certainly, Your Honour.
WILSON J:	It is more easy of reference, thank you.
MR BUCHANAN:	Could I inquire as to whether Your Honours also

have ready access to section 370, of course, of the

CRIMES ACT, but also section 365 of the CRIMES ACT, the other provision to which I have been referring, namely the provision in the usual terms conferring power to order separate trials of multiple counts in

any one indictment? (Continued on page 6)

C2T36/l/HS	5	23/3/88
Verma

WILSON J:  We each have the CRIMES ACT in its entirety.

MR BUCHANAN:  May it please the Court. The essence of the

line of authorit½ culminating in HASS, appears to be that at common law in England and, up to a poin~ in New South Wales, at least in the last

century, it was permissible to join in one

indictment any number of felonies and any number
of misdemeanours provided, of course, an indictment

did not include both felonies and misdemeanours,

subject always to the common law discretion to

order severance or, as it is sometimes described,

to put the prosecutor to an election as to which

counts the prosecutor would proceed upon.

Section 370 had its origins, according to

my researches~ in a colonial provision, namely,

section 316 of the CRIMINAL LAW AMENDMENT ACT of

1883 of New South Wales the citation of which is,

46 Vic No 17, and I have copies of that provision

which I can hand up to the Court. The

CRIMINAL LAW AMENDMENT ACT seems to have been a

statute consolidating the criminal law that it

was applying in the colony at the time and my

researches have not disclosed any provisions similar

to section 316 prior to that except in the form

in England which was in terms somewhat similar

but confined only to charges of, what was referred

to as, stealing. And that seems to be the only

precedent for the insertion into the CRIMINAL LAW

AMENDMENT ACT of section 316.

Consequent upon the enactment of the CRIMES ACT

of New South Wales, as we know it today, in 1900,

section 316 became, in almost identical terms,
section 370 as we know it today.

(Continued on page 7)

C2T37/l/AC	6	23/3/88
Verma

MR BUCHANAN ( continuing) :  And there have been sane amendments since 1900 to

section 370 which are not material, in my submission,
to the case for the applicant today.

The submission essentially is that the provision

in section 316 and then in section 370 was designed,
indeed, to limit the extent to which the prosecutor

was put to an election where the judge, in his discretion,

considered that it would be oppressive to allow the
accused to go to trial on the number of counts contained

in the indictment, the subject of the trial.

WILSON J:  I think you were going to take us to HASS's case,

did you - - -

MR BUCHANAN:  I was. The decision that section 370 is confined

to, simply meaning that the prosecutor cannot be put
to an election unless the number of counts contained

in the indictment exceeds three, appears to derive

solely from an examination of the history of the

common law,and the common law both prior to the

enactment of section 370 and subsequent to the
enactment of that provision. And true it may well

have been that at common law any number of distinct
felonies - and this can be found at page 16 of the

judgment in HASS's case at about point 6 - may be

charged in one indictment.

It is, in my submission, an error of the Court

of Criminal Appeal to regard authority as holding

that that has always been the pr~nciple followed in

New South Wales. The decision of SARA cited by the

Court of Criminal Appeal in HASS does not appear to

bear that out and specifically,at page 350 of volume 14

of the Supreme Court Reports, the decision of SARA

commencing at page 347, it can be seen, leaving aside

the fact that that was a case which was concerned with
two felonies at a time before the enactment of
section 316, there is reference on page 349 at about

point 4 of the page to the power to, in the discretion

of the trial judge, direct separate trials. (Continued on page 8)

C2T38/l/JM	7	23/3/88
Verma

MR BUCHANAN (continuing): But, over on page 350, is to be

found the observation, at about point 2:

As a general rule a 3udge ought not

to allow a prisoner to be tried on two counts,

each of which charges a distinct offence.

Now, in my submission, there is some authority

which tends to support that observation in England

as well and that is a decision of the Court of

Criminal Appeal in HEYWOOD, 9 Cox CC 479. I have

copies. That was not on my list authorities.

TOOHEY J:  Mr Buchanan, is there any significance in the

number 2 or is it simply to be read as more than

one in the judgment in SARA or is it simply a

reference to the - oh, it is reference to the

facts of the particular case.

MR BUCHANAN: In my submission, it is a reference to the

facts of the particular case inasmuch as the next

sentence is a reference to the information in that

particular case. I concede that -

TOOHEY J: But, is it the position that SARA has been used as

authority for the proposition that prisoners should

not be tried on more than one count?

MR BUCHANAN:  It appears not to have been and yet that is

what it appears to say and, in my submission, there

is other authority to like effect.

WILSON J:  But then, surely, that construction is inconsistent

with what is said on page 349, the general statement:

No doubt, the proper course is, where several

offences are charged in one information, for

the prisoner to apply to the Judge to call

upon the Crown to elect upon which of the

charges it was intended to proceed -

MR BUCHANAN:  I can see that -

WILSON J: Obviously more than one.

MR BUCHANAN:  I can see that inconsistency, Your Honour.

WILSON J:  Yes. So that that would bear out the suggestion

that on page 350, His Honour is coming down for the

facts of the particular case that is borne out by

the distinction he then draws between horse-stealing

and stealing a saddle, apparently not connected in

the indictment and no time, no averment that they

occurred within six months.

MR BUCHANAN: Well, leaving the latter aspect of it aside,

my submission is that the way in which this decision

C2T39/l/SH	8	23/3/88
Verma

should be approached is that it is, in fact, an

observation that although it is permissible to

charge a multiplicity of felonies in one indictment,

nevertheless that is bad practice because it is

likely to be oppressive and it brings into play

the discretion to sever counts. That is what,

in my submission, the Chief Justice is saying in

SARA, that is what, in my submission, was said

by the Court of Criminal Appeal in the decision

of HEYWOOD as well. Again, it is admittedly only

an argument. (ould I apologize for interrupting
and now I have copies of outlines of submissions
and hand those up to the Court and one to my

friend.

If I could take Your Honours then to the passage

to which I was referring in HEYWOOD. At page 482 in

argument, Justice Mellor at about point 7 is recorded

as saying:

The practice has always been, where several

felonies were included in one indictment, to

put the prosecutor to elect for which one he

will proceed, to prevent the prisoner being

embarrassed in his defence.

His Honour interestingly goes on torefer to how

that has been circumscribed by the English statute

to which I referred and I submit that that is

authority for the proposition that although it was

permissible indeed to put any number of counts into

an indictment, nevertheless, the practice which
amounts as much as what was permissible to the

coIIttnon law was to bring into play then albeit, I

concede, invariably upon the application of counsel

for the accused, the power to sever where trial on

all counts would produce oppression.

(Continued on page 10)

C2T39/2/SH	9	23/3/88
Verma

DAWSON J:  Just following through the history, Mr Buchanan,

the INDICTMENTS ACT 1915 of course, allows felonies

and misdemeanours to be joined together in the one

indictment, and then it says, of course, that, in the

circumstances which are set out, the indictment may

be severed. Where in New South Wales is the connnon

law statutorily altered so as to allow the joinder

of both felonies and misdemeanours together?

MR BUCHANAN:  I am not aware of that having been enacted in

New South Wales. In my submission, that is a connnon

law in New South Wales.

DAWSON J:	Connnon law was the opposite, was not it?
MR BUCHANAN:	That felonies and misdemeanours could not be

tried together.

DAWSON J:  Yes, and it needed the INDICTMENTS ACT .1915 to

change that.

MR BUCHANAN:	Yes, Your Honour.
BRENNAN J:	Were felonies and misdemeanours abolished in those

categories in New South Wales?

MR BUCHANAN:  No, the distinction has not been abolished as it

has in Victoria, no, Your Honour.

DAWSON J:  It may be only of academic interest. I just wondered

where the change came about.

MR BUCHANAN:  It could be that I am in error in my reading of the ·

INDICTMENTS ACT, but the provisions seem to have the
consequence, not so much of permitting the trial
together of felonies and misdemeanours, but of

permitting the trial for more than one misdemeanour, or

more than one felony in the same indictment.

DAWSON J:  That had always been the case.

MR BUCHANAN:  That may well have been the case, Your Honour,

but that seems to have been the effect of section 4

of the INDICTMENTS ACT.

DAWSON J:  Do not let me delay you anyway. I just thought

you might - - -

MR BUCHANAN:  Very well, Your Honour. The submission proceeds,

therefore - the argument proceeds, therefore,

Your Honours,that when there was enacted a provision

such as section 370, either by way of section 316 or

some such other provision, what it in effect did was

put some sort of circumscription or rider upon the
power restricted though, as I submit it was, to permit

the charging of any number of felonies in	one
indictment.	However, that was against the law, the

C2T40/l/HS	10	23/3/88
Verma

common law, of the discretion in the trial judge

to permit severance and therefore it governed that

power. It therefore restricted the power to sever to

the extent that that power did not come into play

until such time as more than three counts for the

same offence were included in one indictment.

The difference was that when section 370 was

introduced in New South Wales that was the common law

position, that is to say that governed the common law

power to sever, but then the common law power to sever

was enacted in statutory form in section 365(2). The

terms of section 365(2) clearly permit it to override
the effect of section 370, that is to say even if only

two or three counts of the same kind are included in

an indictment, nevertheless, if it would be productive

of oppression to go to trial on that indictment, then

severance may be ordered, the prosecutor may be put

to an election.

Accordingly, at least since the enactment of

section 365(2) it cannot be right, as the Court of

Criminal Appeal said in HASS and was followed in this

case, that section 370 means no more than that the

prosecutor cannot be put to an election if there are

only three counts or less charging offences of the same

kind in the cne indictment. It leaves section 365 (2)

without very much meaning in respect of such indictments

if that construction proffered in HASS is correct.

(Continued on page 12)

C2T40/2/HS	11	23/3/88
Verma

MR BUCHANAN (continuing):  The bottom line, if I might use

the colloquial term, of the submission for the

applicant is the very terms in which section 370

has been enacted. The terms are such that an

indictment may not include counts in excess of
three where they are in respect of distinct offences
of the same kind. In my submission, if Parliament

had intended that the effect of section 370 be restricted to that which is the subject of the decision in HASS then it could have said so, quite

easily. It has not done so, not even after the

enactment of section 365(2).

For that reason, in my submission, and specially

as section 370 is, as is patently obvious, part

of a criminal statute and the usual canons of

construction where doubt might exist coming into

play by virtue of the fact that it is a penal statute,

the terms of section 370 should be applied as they

are read and, as they are read, an indictment may

not contain more than three counts.of distinct

offences of the same kind.

In essence, that is the argument for the applicant.

If it he inquired - but surely that would do

irreparable harm to the criminal justice system

of New South Wales, or any other jurisdiction,

given the need that might be perceived to enable

trial in an appropriate case upon a multiplicity

of counts in excess of three, then the response
for the apRlicant is, "That is in the hands of

Parliament!. It was Parliament that enacted

section 370 and section 365(2); it is for

Parliament, if it considers that section 370 against

the background of section 365 should not have the

consequence which its plain words would apparently

intend that it hav~ then it is for Parliament to

redress the matter.

WILSON J: Mr Buchanan, you are presenting your argument,

really, as if you had a right of appeal and that

this was the ground of appeal. In fact you are

seeking special leave to appeal and that must mean,

in the context of the circumstances in which special

leave is granted, that the administration - as I

would think, having regard to the particular submission -

of criminal justice in New South Wales requires

the Court to grant special leave in order to give

section 370 a construction which it has not been

given in New South Wales itself by New South Wales

courts since its inception?

MR BUCHANAN:  Yes, Your Honour.

WILSON J: Certainly since 1896. You have referred to HASS

but I am looking at ARCHBOLD in 1890 where the

Full Court said, plainly, having cited the section:

C2T41/l/SDL	12	23/3/88
Verma

This section does not alter the common law,

under which any number of counts may be

included in the same indictment, charging
different felonies, subject to the power of
the Court, if it appears that the
insertion of several counts will embarrass
the prisoner in his defence, to call upon

the Crown Prosecutor to elect upon which count

he will proceed. Sec. 316 -

now section 370 -

has merely the effect of providing that

where three counts are inserted, the

prosecutor cannot be called upon to elect.

In the context of an application for special leave,

why should we overturn, in what is strictly a matter

of procedure, the decisions of the New South Wales Supreme Court or the Court of Criminal Appeal that have stood for more than 90 years?

(Continued on page 14)

C2T41/2/SDL	13	23/3/88
Verma

MR BUCHANAN (continuing): Your Honour, in our submission, because

if the argument for the applicant is correct it has

far-reaching consequences for the conduct of criminal

trial in New South Wales. It must inevitably have

a significant impact upon the trial of people who are
charged with a multiplicity of counts and if section 370
has been incorrectly construed, at least since the

introduction of section 365, if not since ARCHBOLD,

then this is the only court which can remedy that

misconstruction. Now, longstanding as the interpretation

may be, in our submission, if it is in error and

manifestly so, then it requires correction and the

fact that it is a procedural provision does not in

anyway diminish the importance of the situation in

which the applicant, and all people in his position

find themselves. On the contrary, in our submission,

a fair trial -according to law, including section 370,

is what is due - I do not need to say it - to all

accused. And, in our submission, it is not a fair

trial according to law when one is put up on a
multitude of counts, the consequences of which have

been spoken of in many, many cases, not the least of

them being the decisions of this Court in DE JESUS

and SUTTON.

I appreciate that in the applicant's case there

was a decision by the Court of Criminal Appeal that

there was not injustice to the applicant by reason
of the joinder of the number of counts which were

in the indictment presented against him, but, in

my submission, that was premised upon the faulty,

erroneous construction of section 370. And if

section 370 bears the construction urged upon this

Court on behalf of the applicant, then the question

of the justice or the injustice of the trial which

then ensued contrary to the provisions of section 370

must be a different question from that which exercised

the minds of their Honours in the Court of Criminal

Appeal.

BRENNAN J:	When was section 365 inserted into the Act?
MR BUCHANAN:	I am very sorry, Your Honour.	If Your Honour

asked me when, I am sorry, Your Honour, I have not

got the answer for you, although I am very sure

my learned friend does.

TOOHEY J:  You will find it on page 17 of HASS, Mr Buchanan,

about halfway down, at least section 365(2).

MR BUCHANAN:  Thank you. At 1929, about the middle of the

page, Your Honour.

BRENNAN J:	Thank you.
MR BUCHANAN:	I am obliged to Your Honour.
BRENNAN J:	As I am.

C2T42/l/JM	14	23/3/88
Verma

TOOHEY J: Perhaps I could then ask a question. What is the

relative chronology between 365 and 370?

MR BUCHANAN:  Section 370 was introduced in 1900 in the original

CRIMES ACT as it is today, although in a slightly

different, but not materially different form. Section 365

followed.	ARCHBOLD was a decision which, if I am not
wrong - - -

WILSON J:  1890, on the predecessor to 370.

MR BUCHANAN: That is so, and SARA was in the absence of either

316 or 370.

DEANE J: Well, that means, does not it, that until section 365(2)

was introduc~d your argument would have had to have been

that ARCHBOLD was wrongly decided?

MR BUCHANAN:  And is. That is my argument, Your Honour, yes,

simply because the words - I am sorry, Your Honour.

DEANE J:	It becomes not as simple as that when a section with a settled meaning is introduced into a new Act; you
have to do more than attack the case that settled the
meaning.
MR BUCHANAN:	And that is why I direct the attention of the

Court to section 365; its clear overriding terms, overriding, that is, of the provisions of section 370 in an appropriate case.

DEANE J: Except when we reach that argument, your argument

really has to be that if you do not succeed for the

period 1900 to 1929 section 365(2) altered the

long~.s.ettl_ed position by a side-wind.

(Continued on page 16)

C2T42/2/JM	15	23/3/88
Verma

MR BUCHANAN: Well, I would demur to the description of a side

wind.

DEANE J:	Well, alter the long .....
MR BUCHANAN:	Yes, it did.
DEANE Ji	By implication.
MR BUCHANAN:	By implication and in my submission, the

Court of Criminal Appeal in HASS failed to appreciate the significance of the impact of section 365 upon

section 370 and merely reiterated the law as it had

been prior to the introduction of section 365(2).

Those are the arguments on behalf of the applicant.

It is essentially a prayer in aid of literal

construction of the words in a criminal statute,
the breach of which construction renders significant

prejudice to the applicant and to all in like position

in the criminal justice system of that State.

Those are the submissions.

WILSON J:  Can you say significant prejudice in the case

where the Court of Criminal Appeal has found no

miscarriage of justice?

MR BUCHANAN:  I submit that the finding is premised upon the

incorrect reading of section 370 and the intention of

Parliament that people not be put on trial for a

multiplicity of counts. Now, if that be the manifest

intention of Parliament, then inadequate weight was

placed upon the fact that there were a multiplicity

of counts. That was an intention of Parliament upon

which inadequate emphasis was put by the Court of

Criminal of Appeal.

WILSON J:	I understood your use of the word prejudice as importing a further criterion to the application
of the section, not merely that it is the plain
which it is operated was prejudicial to your client.
intention of the Parliament, but that the way in
Do you say your client should have been exposed to
trial on 21 separate occasions?
MR BUCHANAN:	Yes, Your Honour.
WILSON J:	And do you say that would have been - would the

evidence in respect of any one of those charges have

been admissible on the trial of any other?

MR BUCHANAN:	No, Your Honour - - -
WILSON J:	Why not?
MR BUCHANAN:	Except where victims overlapped, or the

circumstances - - -

C2T43/1/HS	16	23/3/88
Verma

WILSON J:  What about the rebuttal of a defence of accident, or the provin3 of a system?

MR BUCHANAN:  In so far as rebuttal is concerned, I submit

that would be for a case in reply and I do not

understand the Crown case to have been of a system

inasmuch as there were varying methods used according

to the Crown allegation against the applicant. When

I say, Your Honour, yes, 21 trials is what the applicant was entitled to, I qualify that by saying

subject to section 370 and in an appropriate case up

to three counts on any one trial.

WILSON J:	Yes, well, thank you, Mr Buchanan.
MR BUCHANAN:	May it please the Court.
WILSON J:	The Court will retire for a few moments to consider

its course.

T43	AT 2. 5 7 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.19 PM:
WILSON J:  The Court will not need to trouble you, Mr Sully.
MR SULLY:  May it please the Court.
WILSON J:  I would express the appreciation of the Court

to Mr Buchanan for the lucidity and general presentation

of his argument.

It was settled law at the time of its enactment

in 1900 that a section in the form of section 370

was an enabling and not a restrictive enactment,	see ARCHBOLD (1890) 6 WN 104. That construction
was adhered to by the Court of Criminal Appeal
in HASS, an unreported decision delivered on
30 June 1972. The Court sees no ground for disturbing
the settled construction of the section. For that reason special leave is refused.

The Court will adjourn.,

AT 3.20 PM THE MATTER WAS ADJOURNED SINE DIE

C2T44-/ 1/HS 17 23/3/88