Flint v Lowe C37/1995 [1996] HCATrans 195 (24 April 1996)

IN THE HIGH COURT OF AUSTRALIA

Registry Nos C37 and C38 of 1995

B e t w e e n -

DENISE CHARLENE FLINT

Applicant

and

ANDREW JAMES LOWE

Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 24 APRIL 1996, AT 12.46 PM

Copyright in the High Court of Australia

MR V.J. SABHARWAL: If it please the Court, I appear for the applicant. (instructed by Hanstein, Stacy & Nyman)

MR .T.L. BUDDIN: If it please the Court, I appear with my learned friend, MR A. DOIG, for the respondent. (instructed by the Director of Public Prosecutions (ACT))

BRENNAN CJ: Yes, Mr Sabharwal.

MR SABHARWAL: Your Honour, there was an application for extension of time.

BRENNAN CJ: Yes, there is.

MR SABHARWAL: The application book pages 103 and 105 contain the application together with the affidavit setting out the grounds upon which extension was sought.

BRENNAN CJ: What do you say to the question of extension time, Mr Buddin?

MR BUDDIN: Somewhat reluctantly it is opposed. The reasons advanced in our submission are somewhat flimsy, to say the least, your Honours.

BRENNAN CJ: They are indeed.

MR BUDDIN: But as against that I accept that it is only some 21 days out of time.

BRENNAN CJ: We will see how we get on with regard to the application for special leave.

MR SABHARWAL: In relation to the application for special leave, your Honours, I rely on the applicant's summary of argument filed in this Court.

BRENNAN CJ: Where is the special leave point?

MR SABHARWAL: The special leave point is, indeed, a very short point and it is this, that in a criminal matter where the judicial officer or the magistrate as the trier of fact convicts upon the evidence of a witness whose evidence he does not accept in part and, in my submission, in substantial part, he cannot convict on the one hand where there is the sworn testimony of the applicant as the defendant without addressing as to why he is rejecting that sworn testimony.

GAUDRON J: Or perhaps why he is accepting the other.

MR SABHARWAL: That is correct, your Honour.

GAUDRON J: But he did indicate why he was accepting the other, because he thought that there were only two choices - he was mistaken or lying, but this was not an aspect in which he could be mistaken, whereas the others were aspects on which he could be.

MR SABHARWAL: That is, with respect, speaking about the sole prosecution witness. My submission is, what about the applicant as the defendant when she gave sworn testimony?

BRENNAN CJ: This is an argument that might go to a magistrate on finding the facts; it does not seem to me to raise a scintilla of legal principle.

MR SABHARWAL: Your Honour, I simply reiterate the submissions made in written form and what I have said this afternoon.

BRENNAN CJ: We do not need to trouble you, Mr Buddin.

The application for an extension of time will be granted. Special leave is refused. There is no question of principle which justifies a grant of special leave.

AT 12.51 PM THE MATTER WAS CONCLUDED