Rogers v The Queen S126/1996 [1996] HCATrans 483 (2 December 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S126 of 1996

B e t w e e n -

GRAEME ANDREW ROGERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 2 DECEMBER 1996, AT 11.27 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court please, I appear for the applicant with my learned friend, MR S.J. ODGERS. (instructed by Hovan & Co.)

MR G.S. HOSKING, SC: May it please the Court, I appear for the respondent with my learned friend, MR A.M. BLACKMORE. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Yes, Mr Game.

MR GAME: If the Court pleases. This application for special leave concerns, firstly, the elements and availability of the defence of necessity and, secondly, depending on the answer to that first question and on how one construes the judgment of the Court of Criminal Appeal, whether or not the trial judge can take an issue from the jury on the basis that it is not open to conclude that a belief held is reasonable in circumstances where there is evidence before the jury as to the grounds of that belief.

If I could take the Court, firstly, to the ruling of the trial judge. Page 9 in the application book, in considering the question, his Honour Judge Luland identified the three requirements which come from Loughnan, the first irreparable evil. There is no question about that element in this case and both the trial judge and the Court of Criminal Appeal were satisfied that that element was made out, namely, a threat to kill.

The second concerned the imminency of the peril. The trial judge held that that was not satisfied in the circumstances of this case. In the particular circumstances, the prisoner, the applicant, was in his cell and the person from whom the threat came was in another part of the gaol. In the Court of Criminal Appeal, it was accepted that that was merely an issue of fact that went to the question of the reasonableness of the response and that was, in a sense, mindful of the decision of this Court in Zecevic with respect to self-defence.

With respect to the third element, the trial judge was of the view that proportionality was not made out, not made out because there was a reasonable alternative. In a sense, the application of that third element is really the critical question in this case. The Court of Criminal Appeal was likewise not satisfied that there was evidence upon which it could be said that the response was proportional because there was a reasonable alternative. I will take the Court to the judgment in a moment, but if I could just go to the last part of the judgment of the trial judge on the ruling, page 11, top of the page:

The accused's case is that whilst he was aware protection was available within the system, and he had been offered it from time to time he refused to enter it because to so enter would have confirmed he was an informer. The accused said as well as this he did not fit the mould of protection prisoners -

in fact, there was evidence before the jury that the accused said that going on protection would not give him protection and, in our submission, that is quite critical if the question to be posed concerns the reasonableness of the belief as opposed to the question of proportionality.

BRENNAN CJ: You say that there was evidence before the jury.

MR GAME: There was, your Honour.

BRENNAN CJ: If the proposition is this that there was no protection available, that is one thing, but it does not appear on the face of the application book that we have.

MR GAME: Your Honour, if the question is objectively tested, purely objectively tested, then his belief as to whether or not going on protection would give him protection is not so important, but if the question is of purely a Zecevic question, reasonable belief that it was necessary for him to do what he did, bearing in mind the way in which reasonable belief was defined by Chief Justice Mason in Viro, and we would submit accepted in Zecevic, then it becomes quite critical.

So that both the failure to refer to that evidence, in our submission, underlines the error of the Court of Criminal Appeal, which is to apply the test of proportionality on a purely objective basis and, in our submission, that is where the Court of Criminal Appeal fell into error, and that is the critical question which arises on this application. We point to the failure of both the trial judge and the Court of Criminal Appeal to refer to that evidence as underlying the error which was exposed by it.

BRENNAN CJ: Can you demonstrate that there was some failure to refer to evidence that was available to be acted upon?

MR GAME: Yes, your Honour. If you look at the outline of submissions, you will see at page 3, under 2.6(a):

The applicant testified to his belief that being placed on protection "wouldn't give me protection".

BRENNAN CJ: We are not going to grant special leave on a written argument like this, Mr Game. Have you got the transcript?

MR GAME: I am sorry, your Honour, but it was my understanding of these documents was that if the submissions as to material that appears in the transcript was not traversed in the respondent's response then, at least for the purpose of arguing the special leave application, one could have regard to what appears in the summary of argument.

BRENNAN CJ: There is a large degree of merit in what you say about that, but you are now putting at the forefront of your argument the proposition that there was a piece of evidence which established the subjective belief of the accused in the absence of any protection and it was that subjective belief that there was no system of protection available to him which satisfies the third element.

MR GAME: Quite, your Honour, but my argument is an argument about how the question of proportionality is to be viewed. In my submission, it is an aspect of a subjective test with an objective element.

BRENNAN CJ: That will not arise unless there is evidence to support that approach being taken.

MR GAME: Quite, your Honour. I have set out in the outline what that evidence is. I have read the transcript myself and extracted those portions. The fact that the respondent has not responded to that part of the outline I took to be an indication that it would be sufficient for the purposes of this special leave application to address on that basis. I apologise if I have misunderstood the purpose - - -

BRENNAN CJ: No, you have not misunderstood the notion. The notion is that the material should be stated in the notes of argument, but where there is a crucial piece of evidence, it would be desirable to have at least that page included in the application book.

MR GAME: I am really sorry that I - - -

BRENNAN CJ: No, it is all right, Mr Game.

MR GAME: I have read this transcript. I have got the page references annotated. I have not brought the transcript today.

BRENNAN CJ: Let me ask Mr Hosking this question. Mr Hosking, do you accept the accuracy of the statements that are made in paragraph 2.6(a)?

MR HOSKING: Yes, I cannot put the contrary, your Honour.

BRENNAN CJ: Yes, very well.

MR GAME: So there was that evidence and he said it on a number of occasions and, in our submission, ultimately the reasonableness of that very belief is the question that would have to be posed for the jury's consideration. That is not the way in which either the trial judge of, of course, the Court of Criminal Appeal approached the question, because they took a different approach to it. Finally, in the trial judge's judgment, then at line 20 on page 11:

As much as the accused had his own reasons for not wanting protection from persons threatening him the test is would a reasonable man in the position of the accused consider he had any alternative.

Again, what is the content - - -

GUMMOW J: Where are you reading from, Mr Game?

MR GAME: Line 20 to 25 on page 11, your Honour. The content of the reasonable belief becomes a question of quite critical importance, the distinction between the reasonable man and the reasonable belief, and that is a distinction drawn by Chief Justice Mason in Viro and we would submit the subjective reasonable belief with an objective element is the proper approach. His Honour rejected on the basis of imminent peril and proportion, again, objectively tested.

Although the question of imminency and proportion may have origins that go way back, they were applied by analogy in Loughnan from the law of self-defence, and one can see that on page 22 of the application book. In our submission, the question of where the proportionality element stands in the light of both the history of the law of necessity and how that is to be made consistent, or should it be made consistent with the law relating to self-defence and duress lie very much at the heart of this case, but there at page 22, one sees the extract from Loughnan in which the question of imminency and proportionality are, in effect, applied by analogy from self-defence.

In the Court of Criminal Appeal, if I could go then to page 25, Chief Justice Gleeson accepted that urgency and immediacy, that is to say the second element was to be regarded now:

not as technical legal conditions for the existence of necessity, but as factual -

I am reading from lines 35 to 45 -

considerations relevant, and often critically relevant, to the issues of an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.

So, in a sense, there is a dual test there, both the reasonableness of the belief and a purely objective test as to the reasonableness and proportionality. That, we submit, is the critical question and we submit the Court of Criminal Appeal is in error in that regard. Then one goes to page 26 and, in a sense, what appears at lines 10 to 20 is inconsistent, we would submit, with that which appeared on the previous page:

Putting questions of onus to one side, if the appellant acted as he did, honestly believing, on reasonable grounds, that escape from prison was necessary in order to avoid threatened death or serious injury, then his conduct would be excused.

We would submit if you stop the judgment right there, there was evidence of the belief, there was evidence of the grounds for the belief and there was evidence that it was based on reason, and there is nothing in the judgment to suggest otherwise.

GUMMOW J: What about page 32, line 55:

It is possible to imagine a case where a prisoner might -

et cetera? Then it goes on over to 33.

MR GAME: Your Honour, firstly, in that passage, there is a reference to - - -

GUMMOW J: But is not that responding to the proposition on 26, lines 10 to 16?

MR GAME: No, your Honour, because the test from Lord Dixon in Perka's Case is a purely objective test. So is Bailey. So what his Honour has done is apply - and there is another case, a subsequent case, called Hibbert, in which the Supreme Court of Canada applied what they called an objective subjective test, which is an objective test taking into account the subjective circumstances of the particular individual characteristics. We submit, in effect, the subjective test with an objective element applying Chief Justice Mason in Viro's Case. So the whole of this inquiry is based upon what is said in Perka and Bailey, which is a purely objective test of proportionality, and if one looks, for example, at Perka - could I take the Court to Perka 14 CCC 385, and if I could take the Court to page 400 at about point 6:

The requirement that compliance with the law be "demonstrably impossible" takes this assessment one step further. Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? Was there a legal way out?

And the whole of that paragraph. Then across the page:

I would therefore add to the preceding requirements a stipulation of proportionality expressible, as it was in Mortgentaler, by the proviso that the harm inflicted must be less than the harm sought to be avoided.

That test as it appears there would appear to be a purely objective test and it is said to be based on the history of the law of necessity. We submit it is an important question of principle that is raised by a consideration of whether or not that test applies. A different test has in fact been applied in England, which is a little bit closer to the Hibbert test which is the case following Perka, but the English approach is, in our submission, one in which one looks at the reasonable belief and then applies in effect a reasonable man test to that. So it is closer - that is a case of Pommell - to Zecevic.

In our submission, this decision is not in line with the decision in Zecevic, and that can be seen, if one follows through the judgment. Then at page 26, there are three considerations of particular factual relevance to the issues of reasonableness and proportionality, so that proportionality is, in effect, posed as a legal test. It has three sub-aspects; report, imminence, which was the second requirement referred to previously and, third, possible reasonable or alternative course of action.

As I have said before, with respect to his belief in relation to the third, neither the trial judge nor the Court of Criminal Appeal even referred to that material. If one goes over to page 34 - I should say there was, in my submission, another error in that which appeared at page 32, which is the question of going on protection and the reference to "even greater risk". In my submission, that might be appropriate to a purely objective test, but it is not appropriate to a test which is subjective which has an objective element. Then over at page 34 and, in my submission, this demonstrates again the way in which the court has approached the question and the error which is exposed, that passage from lines 10 through to 25:

Bearing in mind the nature of the escape which was being attempted, the fundamental flaw in the appellant's case on necessity was that there was available to him the alternative course of bringing the threat to the attention of the prison authorities and seeking protection. On the evidence in the case it was not open to a jury, properly instructed in the law, to reach any conclusion other than that this was a reasonable alternative to escaping.

BRENNAN CJ: That seems to me - and this is perhaps why I was so surprised by your reference to 2.6(a) - to fly in the face as a matter of fact to the proposition that your argument seeks to advance. In other words, the Chief Justice is saying, on the evidence, they had to come to the conclusion that the protection programme was a reasonable alternative.

MR GAME: Objectively speaking. My whole argument is that what one is concerned with is the reasonableness of the belief of the accused as to whether or not it was a reasonable alternative, or the reasonableness of his belief that it was necessary to escape, to put it precisely.

TOOHEY J: What is the conduct of the applicant that is measured in this context? Is it going over the wall or is it - - -

MR GAME: The attempted escape which consisted of climbing into the ceiling and then attempting to climb out, but he was trapped inside the prison.

TOOHEY J: But having regard to the situation and the matter referred to by Chief Justice Gleeson of the problems involved in relation to prisoners - of the necessity applying to prisoners escaping, for the purposes of the applicant, is it enough to say that the escape, whatever might have happened long term or thereafter, was necessary in all the circumstances?

MR GAME: Yes, your Honour. Two things; firstly, there was no evidence as to what he would do when he left but, secondly, for reasons which are explained in the outline of submissions, his circumstances were extreme circumstances to say the least. He was, in a sense, an eggshell skull prisoner. He had been subjected to quite horrific - - -

BRENNAN CJ: But that is not the point. The first element is clearly established. Your point has got to be the point that you have been making, namely, reasonable belief.

MR GAME: Yes, your Honour.

BRENNAN CJ: I must say, I take the point that you are relying on his belief and not on objective tests, but the way in which I have understood the Chief Justice to be speaking, from about page 30 to page 34, is that he is saying: this man had a lot of reasons for not wanting to go on protection, but he did not have any real reason for not going on protection. In other words, there was not any question of an honest and reasonable but mistaken belief about the adequacy of protection. He is saying the reason why he did not go on protection was because he did not want to.

MR GAME: Your Honour, three things. Firstly, he has relied on Perka. Secondly, he has not referred anywhere to the evidence of the accused's own belief that he would not get protection and, thirdly, the language that he has used is not language apposite to a consideration of his belief, and it would be difficult to construe this judgment as a judgment in which it was to be so interpreted. All that he referred to were factors which were, in effect, extraneous factors concerning his belief that he would be treated as a dog in protection, that he had other reasons for not going there, but none concerning the fact that he would not be protected if he sought protection. Moreover, when it says that - - -

BRENNAN CJ: It seems very curious that, if this is the real argument, the Chief Justice did not say, he was saying that the reason why he did not go on was that he would never be safe if he went there, when he has expressly dealt with the notion at 31, line 15:

It was accepted on all sides that being on protection is not an absolute guarantee of safety.

I mean, that seems to suggest that he took fully on board the concerns that were expressed about protection, but fell far short of saying that there was some belief that there was no protection available.

MR GAME: I can only say, your Honour, that he has not referred to the evidence on the question, and when one looks at that passage at page 34, that question is not posed in terms of reasonable belief and, moreover, as I said before, there are different ways in which one can apply that very test, namely, is it the reasonable man test or is it the Chief Justice Mason in Vir,o the reasonable belief, which is a must more subjective test, and there is nothing to suggest that that particular approach has been applied.

In my submission, that is the way in which the judgment is to be construed and, as I said - I have come to the time - but by way of background - it is impossible for me to take the Court through all the different positions that have been expressed in relation to necessity in this short time - but Perka's Case and Bailey are clearly cases in which the question of proportionality is a question which is not to be judged by reference to the accused's reasonable belief. Clearly enough, Chief Justice Gleeson would have been mindful of Perka and Bailey in the passage and in that consideration.

So although there is, in a sense, a question of interpretation of the judgment, in my submission, the interpretation that I have put on it is the correct interpretation of what his Honour was seeking to convey by way of the test to be applied. We submit that the defence of necessity is on all fours, in a sense, with the defence of self-defence. In a sense, self-defence is an aspect of the law of necessity as is duress.

BRENNAN CJ: I will not....., but we can hear you in reply in relation to that.

MR GAME: Yes. There is one passage where his Honour says that duress is some lesser form of duress at page 34 and we would submit they are really the same thing. But could I say finally this, that if it comes down to - if the interpretation which is put against me is the correct interpretation of the judgment of the Court of Criminal Appeal, then we submit that that is entirely a jury question. If there is evidence of the belief, evidence as to the grounds of the belief, then that is for the jury to determine the reasonableness of that. It is not for the trial judge or the Court of Criminal Appeal, and we submit that is, in itself, an important question. We rely very much on remarks in Zecevic itself which is, if there is evidence of that belief, then it is a matter to go to the jury. Those are my submissions, if the Court please.

BRENNAN CJ: Mr Hosking.

MR HOSKING: Thank you, your Honour. Your Honours, in my submission, my learned friend has two very fundamental factual difficulties. The first is to demonstrate an occasion of necessity and, secondly, the problem of immediacy. In relation to the first matter, the first matter of necessity in respect to which his Honour the trial judge found against my learned friend, the Court of Criminal Appeal found against my learned friend factually.

My friend does not solve his problem, in my submission, by taking your Honours to the evidentiary matters at 2.6 and saying, because the applicant says or gave evidence that protection "wouldn't have given me protection, it wouldn't have worked.", that, in our submission, is not an answer to his first factual problem. One has to ask the question: why would it not have worked? Why, in his mind, would it not have worked? That answer was given before his Honour the trial judge.

The applicant considered that it would not have worked for a combination of reasons, evidently. The first is the one that appears at 2.6 in that there was evidence apparently that protection was a long way short of being 100 per cent foolproof, if I may take your Honours to that. That is at page 3 of my friend's submissions. That was the evidence of Professor Vinson, and there was also the evidence evidently of Assistant Superintendent McNair, "we can't one hundred per cent guarantee their safety".

Your Honours, our point is, that applies everywhere, even if he were to escape. One of the reasons advanced to his Honour was, "Well, my family will be in danger". Presumably if he escapes and joins his family, that consideration will apply to him as well.

BRENNAN CJ: You have got to deal with the argument that is put against you by Mr Game, and I thought you were just going to, which is, this man believed that there was no protection available. Now, you are going to go on and say what was the reason for that belief in his own mind?

MR HOSKING: In his own mind.

BRENNAN CJ: You have referred to evidence that was given by Professor Vinson. Was there anything to indicate what the accused's own mind was?

MR HOSKING: Yes, there was, your Honour. The accused's own mind was that he chose not to go on protection because, in his mind, so it was found by his Honour the trial judge, that to do so would confirm in the minds of those who would or might threaten him that he was a "dog" and, secondly, that he did not like the kind of people, the other people, who were on protection. They were the reasons that he gave.

BRENNAN CJ: And there was no reason that he was not going to be safe there given by him.

MR HOSKING: No. My friend says that is not right. My friend is referring me back to 2.6, but that is my point. When he says it "wouldn't have worked", one has to be a little careful.

GUMMOW J: One asks, why would it not work?

MR HOSKING: Yes, why would it not work? And in his mind, there were a variety of reasons why it would not have worked. It would not have given him 100 per cent protection, that may be so. The Crown says what situation would? Secondly, he did not like his would-be companions on protection and, thirdly, he did not want to be labelled, by going into protection, to use his expression, as a "dog". It was not an occasion of real necessity at all, in our submission, that is the point, that is the first point. The second point, your Honour, is this.

BRENNAN CJ: That is a factual point.

MR HOSKING: Yes, your Honour.

BRENNAN CJ: And I take it there is a clear issue joined between you about that fact, is that right?

MR HOSKING: Yes, I understand so, your Honours.

BRENNAN CJ: Have you got the transcript there?

MR HOSKING: I do not have a transcript either, your Honours. I did not realise there was going to be a point necessitating transcript, I am sorry, but the matters that I have just put to your Honours appear in the judgment of his Honour Luland at first instance. I will take your Honours to them. If your Honours go to page 10 of the appeal book, the relevant material commences at about line 45 on page 10, where his Honour says:

There was evidence - there is evidence in the trial that protection is available to prisoners at risk.

His Honour referred to Mr McNair's evidence about not being possible to guarantee 100 per cent the safety of prisoners, and then at the top of page 11:

The accused's case is that whilst he was aware protection was available within the system, and he had been offered it from time to time he refused to enter it because to so enter would have confirmed he was an informer. The accused said as well as this he did not fit the mould of protection prisoners, he said they are not like him, they would not want to be with him, nor he with them.

Your Honours, it is the two factual problems that I have put that, in our submission, means that my friend has a formidable problem in the present application. The authorities that he refers to in his written submissions are in fact on this question against him. May I take your Honours to one of them, the English case of Pommell (1995) 2 Cr App R. It is a decision of the Court of Appeal in England and, your Honours, may I say before I take your Honours to the particular passage, that there is nothing particularly new in what I am about to put, but it is in my friend's list of authorities and it is a convenient summary, in my submission, of what the true principle is.

If your Honours go to Pommell, this was the man who was found by the police with a loaded sub-machine gun and offered by way of an explanation for his possession of that loaded weapon that he had to take it from another man to prevent the other man doing somebody a serious injury. He raised a defence of necessity, and in the Court of Criminal Appeal, Lord Justice Kennedy at page 611, said this. This is commencing under the heading on 611, "4. Procedural", between lines E and F:

Where an attempt is made to raise a defence which involves the defendant accepting the evidential burden of proof (e.g. necessity, duress or self-defence), then the judge will be entitled to withdraw the case from the jury if there is no evidence to support the defence upon which it is sought to rely.

And their Honours refer to the case of Hill v Hall. There is a similar passage in another authority that my learned friend refers to, an earlier English decision of Martin, also a decision of the English Court of Appeal. If I may take your Honours to Martin?

BRENNAN CJ: That does not take us very far. That is a fairly familiar proposition back as far as Mancini's Case.

MR HOSKING: If your Honours please. There is authority to the same effect in the judgment of Lord Dixon in Perka at 404 dealing with the question of onus of proof. So, your Honours, before one ever gets to the question of the reasonableness of the applicant's belief, in our submission, there must be objectively in fact a situation of necessity and a situation of imminence of dire peril. In the applicant's case, factually there was neither. That is the essence of our submission.

GUMMOW J: What do you say about the factual matters at page 30 commencing at line 50? There seem to be four reasons given there for refusal to go on protection.

MR HOSKING: This is the one that some prisoners at Berrima - - -

GUMMOW J: Page 30, line 50.

MR HOSKING: Yes, I am sorry, your Honour.

GUMMOW J: There are four reasons given there. I do not quite understand at the moment what your opponent says about them actually.

MR HOSKING: Your Honours, that was the evidence that the Chief Justice had in mind when his Honour said that the decision of the applicant - I am sorry, when the Chief Justice said that the relevant concept is of necessity, not expediency or strong preference.

GUMMOW J: Where does his Honour say that?

MR HOSKING: His Honour says that at page 26 at line 20.

GUMMOW J: Yes, thank you.

MR HOSKING: In our submission, your Honour, that is the first essential point. The relevant concept is of necessity, not expediency or strong preference and, if all one has objectively is expediency or strong preference, the question never gets high enough to even go to the jury. That is the first matter, and the second matter, as I have put, is that there must be a situation of immediacy. This was a Monday that this applicant tried to escape, and his evidence was that he had been told by somebody in the prison that something bad was going to go down on the weekend. Well, that was five days later. Not a situation of immediacy, in our submission. May it please your Honours.

BRENNAN CJ: Yes, Mr Game.

MR GAME: If the Court pleases, the case was not resolved unfavourably on the basis of immediacy or dire peril, but on the basis of proportionality. The passage that appears at page 26 line 20, in effect, explains why his Honour the Chief Justice thought that the considerations identified at pages 33 to 31, in effect, were irrelevant but, in our submission, if it is a reasonable belief test then they are relevant. They are not central - - -

GUMMOW J: Reasonable belief that what?

MR GAME: It was necessary for him to do what he did. They are relevant to his state of mind.

GUMMOW J: Necessary because of what would happen otherwise, being what?

MR GAME: In this case, because he would be killed. But, your Honour, one is assessing his state of mind - - -

GUMMOW J: It is not as simple as that, because that involves protection, .....protection, does it not?

MR GAME: Quite, but - - -

MR TOOHEY: It is not just to do what he did, but to do what he did when he did it.

MR GAME: Yes. But, in my submission, it is no answer to say that there is other evidence of other reasons that he gave when one of the reasons which he gave on three occasions in his evidence, unconnected with the other explanations, was that it would not give him protection to go on to protection. The cross-examiner did not pursue those grounds as the reason for that belief further, but that is what he said in his cross-examination. The jury themselves, after they were directed that necessity was taken from them, said, "What are the minimum conditions of lawful custody?", which might suggest that their assessment of his state of mind was that they thought that there was something in this case. Those are the submissions that I make in reply, if the Court pleases.

BRENNAN CJ: Mr Game, can I take you back to page 11, because this is the approach that was taken by the trial judge. What is troubling me at the moment is that, if one endeavours to identify the state of mind, the subjective state of mind on which you rely, as to which I think there are real problems about using that - just translating Zecevic - into a necessity situation - leaving that aside - if you want to adopt the Zecevic/Viro approach to it, the passage at page 11, the passage at page 26 and the passages at 30 to 34, all proceed on the footing that the accused had his own reasons for not wanting to go on protection, not being a reason that his belief was that he would be exposed to risk if he went on protection, that is, exposed to the risk of being killed if he went on protection. Now, your argument, on the other hand, is that that is precisely the state of mind he had.

MR GAME: That is precisely what he said, but he said other things - - -

BRENNAN CJ: You have told us that is precisely what he said. Now, I must say that whether that was what was truly to be derived from what he said must depend upon its context, and at the moment I am finding it very difficult to reconcile these passages that I have referred to with the factual argument which you have presented.

MR GAME: My submission is this, that the trial judge - in a sense, it was not so essential for the trial judge to address that question, because he was applying a proportionality test which did not depend on the accused's state of mind.

BRENNAN CJ: Forget what test he was applying. When both he and the Court of Appeal came to outline the factual situation in which the case fell for decision, they are both approaching it on the footing that there is some reason for not going on protection other than no faith in the protective system, and that seems to me to make it very difficult, at lease for us here, to grant special leave in order to raise the question that could only be raised on the footing that that was the basis.

MR GAME: But my argument is that there is a central legal defect in the way in which the Court of Criminal Appeal has approached the question, but that there is, in effect, an evidentiary basis behind what is the alternative proposition which I have put, which is a direct - - -

BRENNAN CJ: But you are wanting then to argue the case on the proposition that there were errors of law made at first instance, and on appeal. You are not approaching it in the way in which you say it should be approached.

MR GAME: Yes, your Honour.

BRENNAN CJ: The next step after that, if we were to grant special leave, is to say, "And there was evidence on which the jury could have found," et cetera, "and therefore the appeal must be allowed."

MR GAME: That is correct, but in my - - -

BRENNAN CJ: Now, that raises the question of whether this is a suitable case.

MR GAME: In my submission, the third step is the reason why it is a suitable vehicle. The first two are established; the third is that, I have pointed to evidence upon which there could be but only one conclusion, which is that it was open to - - -

BRENNAN CJ: Have you finished what you wish to say in reply, Mr Game?

MR GAME: Yes, your Honour, but could I just say that, if the Court were minded to do so, then I would be in a position to produce the transcript after the lunch adjournment, if it would be possible.

BRENNAN CJ: Thank you. The Court will adjourn briefly in order to consider what course it will take.

AT 12.12. PM SHORT ADJOURNMENT

UPON RESUMING AT 12.19 PM:

BRENNAN CJ: Gentlemen, the Court would be advantaged, if the parties wish to do so, to see the relevant and critical pages of the transcript. We will not look at the whole of the appeal book. We wish to see only those pages upon which you, Mr Game, particularly rely, and if there should be some other page or pages on which you, Mr Hosking, may wish to rely by way of qualification, then so be it. We ask counsel to be extremely editorially censorious in producing the pages, and we shall resume hearing this matter at 2 o'clock. Those pages, perhaps, could be provided to the Court just so soon as they are available, so that if they are available for us to look at at lunch time, well and good.

AT 12.20 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.14 PM:

BRENNAN CJ: We thank counsel for having provided us with that material which we have now read.

MR GAME: Thank you, your Honour.

BRENNAN CJ: We did not intend further submissions, Mr Game.

MR GAME: No. I was just going to ask your Honours if you wanted me to take you to any part of it.

BRENNAN CJ: No, Mr Game.

The applicant seeks special leave to appeal against the judgment of the Court of Criminal Appeal dismissing his appeal against conviction for trying to escape from lawful custody. He was an inmate of the John Moroney Correctional Centre at the time of the offence. His defence was that he attempted an escape in order to escape from an apprehended threat of serious violence. As we read the reasons of the trial judge and of the Court of Appeal, the defence of necessity was not put to the jury because the applicant could reasonably have gone onto a protection programme to avoid the threatened violence but he declined to do so for a variety of reasons which, though they seemed good to him, did not amount to a belief on his part that the protection programme was ineffective. The applicant submits that that is not the way in which the Court of Criminal Appeal's judgment should be understood. Counsel submits that that Court adopted erroneously an objective test of necessity and were thus led to consider only the question whether the gaol protection programme was ineffective rather than considering whether the applicant believed it to have been ineffective.

Having perused the evidence on which this submission turns, we are of the view that the Court of Criminal Appeal was describing the effect of the applicant's evidence and that his reasons for not going on protection were not a belief that the programme was ineffective. So understood, the judgment of the Court of Criminal Appeal does not provide a suitable foundation for considering whether a defence of necessity is to be determined by reference to the subjective beliefs of an accused. For that reason, special leave will be refused.

AT 2.16 PM THE MATTER WAS CONCLUDED