Meyers v The Queen M161/1993 [1997] HCATrans 73 (14 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M161 of 1993

B e t w e e n -

NOEL JOHN MEYERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 1997, AT 11.30 AM

Copyright in the High Court of Australia

MR R.K. KENT, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Galbally & O'Bryan)

MR J.D. McARDLE: May it please the Court, I appear for the respondent. (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

DAWSON J: Mr Kent.

MR KENT: In this matter it is submitted that there was an error of approach by the Court of Appeal to the consideration of the ground of appeal that a conviction was unsafe and unsatisfactory. The respondent, in reply to the outline of submissions, has, we submit, correctly stated that this Court has clearly stated the principles to be applied when that is the ground of appeal, and with that we do not quarrel. But what, we submit, gives rise to the requirement of the grant of special leave in this case is that what do you do if it can be shown that the Court of Appeal, although recognising the correct principle, fails to properly apply it.

DAWSON J: But that is your problem.

MR KENT: It is.

DAWSON J: Of course, this is not a Court of Criminal Appeal and the court below has correctly identified the principles to be applied but there is a difference to the result in their application between the majority and the dissenting judge.

MR KENT: Yes.

DAWSON J: But why should this Court take this case on appeal merely to restate the principles which are not contested?

MR KENT: We submit that there is a further step that should give rise to the grant of special leave and that is for a firm and clear direction as to the completeness of the task that should be undertaken by a Court of Appeal. That what has happened and what will tend to happen, in our submission, if this Court does not grant leave in circumstances like this is that there will be a danger that courts of appeal, whilst reciting the rule, will approach the matter from the wrong end and say, "In what way can we identify the matters that the jury must have found to come to its verdict of guilty?", rather than to conduct the independent assessment of the evidence and determine the issue of whether or not the jury ought to have entertained a reasonable doubt.

DAWSON J: The jury must have found that the fatal blow was inflicted with an intention to cause grievous bodily harm.

MR KENT: They are required to do that to convict.

DAWSON J: Because you do not complain about the direction and I assume the proper direction was given.

KIRBY J: You have some new formulation in Victoria. Is it serious and really and truly harm, is that correct?

MR KENT: That is part of an old formulation, your Honour. It is actually going back in time when that direction was frequently given, "really serious harm" or "grievous bodily harm" being the older expression. It came to "really serious injury" and then "really" was dropped in judgments both by this Court and, indeed, the Court of Appeal in Victoria saying, "Well, `really' didn't had anything to it", but it has been brought back in. It just seems to have drifted back in. Those of us who perhaps regularly appear for the defence would say it is to be encouraged because - - -

KIRBY J: Lots of emphasis on "real".

MR KENT: "Real", yes, because it really does have an impact, we would submit and that "serious" is just a term that does not carry the seriousness that is necessary, we would submit. However, that is a "by the way" but it is a bit of the history of it; it has come and gone and come back again and we urge that it stay but it is not the point of this appeal.

I recognise the difficulty but what is the situation? We submit here that there is a complete failure by the Court of Appeal to consider the question of whether the accused's intention may have varied during the course of the events that took place over a period, on the evidence, of up to about an hour. The problem - you can easily identify the difficulty and it is submitted that a quick and proper examination of the evidence in this case demonstrates that the jury should have entertained a reasonable doubt. Therefore, the Court of Appeal should, accordingly, have come to that view.

KIRBY J: But why cannot one say that when one looks at all of the facts and, in particular, the level of violence, the very high level of violence including the evidence of the expert about the extent of the hair grabbed out, it was completely unprecedented. That really removed any doubt that this was a case where there was really intent to do - - -

MR KENT: That identifies, with respect, your Honour, the real problem in this case. There is little question that it was open to the jury to find that at some time during the course of the events the applicant formed an intention to cause serious harm. The complicating factor in this case is because there is that evidence, when one looks at the actual cause of death, the question mark arises as to whether or not that intention accompanied the act, whatever it was, that caused the death, and to say - - -

DAWSON J: And there you fasten on the evidence of Professor Cordner, do you not?

MR KENT: We do.

DAWSON J: Just remind me in brief what he said?

MR KENT: Professor Cordner says that with respect to the head injuries, effectively, the pulling of the hair can cause significant bruising to the head but it is not associated with fatal injury. The fatal injury is brain damage. There is no fracture to the skull. Taking into the account the bruising that may have occurred as a consequence of the pulling of the hair, the bruising to the head indicates that there must have been more than one blow, as opposed to pulling of hair; it may have been two, three or more.

KIRBY J: Yes, but all of these things happened within a matter of seconds but "the devil himself knoweth not the mind of man" and therefore all you can look at is the objective facts and when you look at the objective facts there is this level of violence of the pulling of the hair. Now, within a minute or so a blow had occurred which caused the death. Why is it not easily able to be inferred that from the level of violence demonstrated objectively by the pulling of the hair - unprecedented, according to the expert - that that does not indicate that this was really a level of violence which intended to kill?

MR KENT: Your Honour, with respect, if there was evidence - - -

KIRBY J: You want to cut them up. You want to say, "Well, there's the hair and that can only cause difficulty in the scalp but there's the blow that cause the death", but they are all part of the one level of violence.

MR KENT: Your Honour, if there was evidence from which it could be concluded that the level of violence associated with the pulling of the hair occurred within seconds of the trauma to her head that caused the death, then that would leave it open for the jury to consider, as your Honour has put it. However, the evidence does not do that and that is the problem.

GUMMOW J: What is the answer to, taken together, paragraphs (5), (6), (7) and (8) of Mr McArdle's submissions in reply? It seems to me what he is putting there is - - -

MR KENT:

(5) The intention of the Applicant at the relevant time was to be - - -

GUMMOW J: What is said there is the effect of what is being put to you by Justice Kirby.

MR KENT: Yes, but the error with it is that those are assertions that are not soundly based upon the evidence.

DAWSON J: In any event, what you say, Mr Kent, is, "Look, we don't know how the injury to the head occurred. For all we know he may have given the woman a push, even a gentle push, and she may have hit her head on something as a result of that."

MR KENT: Yes.

DAWSON J: "If that is so, you could not say that the push was inflicted with an intention to cause grievous bodily harm. That is a hypothesis which is open on the evidence and it is a reasonable hypothesis and if that hypothesis is open, there must be a doubt." That is what you say, is it not?

MR KENT: That is what we say and we say that the Court of Appeal, in an examination of its judgment, did not properly determine that question.

DAWSON J: This may be a difficult task. Could you take me to the passage where they do not deal with it?

MR KENT: That is a difficult task, your Honour.

DAWSON J: But you know what I mean.

MR KENT: I do know what your Honour means and I think that it comes about in this way, and it is one of the problems in the overall assessment of the case. One sees that there is an overall level of violence and you can see that it is easy to draw the conclusion that at some point - or that it is clearly open to the draw the conclusion that at some point you could find an intention to cause serious injury.

DAWSON J: But it is the crucial point that is important here.

MR KENT: The crucial point is the difficulty. Now, the court begins at page 329, which is where I think that one can deal with the question of showing where it is they did not do what it was we submit they should have done and how they go into error. Conceptually, one can easily see at first blush how you can go into error in this case.

KIRBY J: I seem to be falling into it myself.

MR KENT: That is my submission, with respect, your Honour. It is easy to do that because you look at the overall scene and then do not necessarily - - -

KIRBY J: That is what juries tend to do.

MR KENT: Well, they may do, and there is a real danger, therefore, of wrongful conviction in this situation. But the court at page 329 said this:

The real question for the jury was that of the intention with which the applicant did the acts which caused the fatal head injury.

Correct.

But that injury was not to be considered in isolation from the other injuries. The whole altercation was one episode.

Now, that is an error of reasoning. It is one episode in one sense but, in another sense, it may or may not be, and making the assumption that you have a continuum of activity which, at some point, includes the formation of an intention to cause serious injury which remains and exists at the time of the infliction of the fatal injury is an error of reasoning because if you take it that this was a domestic altercation going on for more than an hour, with people going from one part of the premises to the other; somebody picking up the phone; at some stage the applicant being struck over the head with a flower pot; turning and pushing; the applicant perhaps going then and going to the telephone; again there being verbal argument, not physical argument, from time to time spread over there, whilst it is one altercation, it is not necessarily accompanied by the same intention when it becomes physical, and you have evidence that is plainly acceptable, in my submission, that there was a physical attack by the deceased upon the applicant to which he might respondent, either with or without an intention to cause serious injury.

DAWSON J: You would be asking for substitution of the verdict of manslaughter.

MR KENT: I would, yes.

DAWSON J: This is the very situation which was dealt with in Knight's Case, was it not?

MR KENT: Yes, it is and we submit that the situation is - - -

KIRBY J: Perhaps it would be of help if you took us to Knight's Case.

MR KENT: Yes. The basis for the grant of special leave was referred to in fact in the dissenting judgment of Justices Brennan and Gaudron, and at page 509, under the heading "Appeal to the Court of Criminal Appeal and the High Court":

Special leave to appeal from the judgment of the Court of Criminal Appeal was granted because the approach taken by Young CJ and Nathan J differed and it was not clear that the appropriate test had been applied in deciding whether the jury could draw and act upon the inference that the appellant had an intention to kill at the time when he discharged the rifle when the bullet struck Salvo.

Now, there were two aspects to the grant of special leave there. One - we submit that it is very similar in this situation. What we submit is this, that although - perhaps I have got to go back a step. The first point where it was suggested that the learned Chief Justice was in error was that he said that in order for a competing hypothesis to bring a court of appeal to consider that a verdict was unsafe and unsatisfactory was that it had to be equally open as the hypothesis of guilt and, of course, that is plainly incorrect to say they must be of an equal level of possibility or likelihood to be able to say that the verdict is unsafe or unsatisfactory. Now, that clearly was an error.

Mr Justice Nathan, on the other hand, in the course of his judgment apparently said there was no competing hypothesis and so that although you had a majority decision, it was not based upon the same line of reasoning that the verdict was unsafe or unsatisfactory. Then, of course, there was the dissenting judgment, I think, of Mr Justice Crockett in which he found that there was a competing hypothesis and it could not be excluded and therefore the verdict was unsafe and unsatisfactory. Now, that is the first part of it.

The second aspect was as to the approach overall. What is the approach of the Court of Appeal in considering this ground and it must be to consider the whole of the evidence rather than to select parts of the evidence which can be said to be consistent with the verdict of the jury and, therefore, to say they are open - there is a bit of a difficulty, of course, with this ground. We are dealing with cases where it is said it is open as a matter of law for the jury to convict and ultimately we are reviewing the decisions on the basis that it was not open to do so but in a legal framework that is well recognised.

GUMMOW J: Do you accept the way the question is formulated at page 510 of Knight, about line 6?

MR KENT: I do not actually have page 510 with me, your Honour.

GUMMOW J:

This case is not concerned with the problem of proof of the facts from which an inference is to be drawn; it is concerned simply with the question whether a reasonable jury, on the facts as outlined, could have returned a verdict of guilty or, to put it another way, whether a reasonable jury could have been satisfied beyond a reasonable doubt that the inference of intent to kill was the only reasonable inference open on that evidence.

MR KENT: Yes, I have no quarrel with that, your Honour, as a statement of law. We do not say that there is - - -

DAWSON J: But that is in a dissenting judgment which you would say applied it wrongly?

MR KENT: Yes.

DAWSON J: It was in a dissenting judgment, was it not? Yes. The test is wrong.

MR KENT: But I do not know that that is said to be incorrect.

KIRBY J: You say the lesson of Knight is you have to focus on the particular act that caused death, is that correct, and for that purpose, although you take in a general way the background, you have to ask, "Is there any other hypothesis that could explain the actual acts that led to the death?", as distinct from, "We know they were" - and the evidence is incontestable. They were both drunk; they were both having a terrible fight; rows were going on; extended over a lot of time; a pot was smashed on your client's head and there was a lot of hair dragged out of the deceased, but that does not focus on the critical moment which is what caused the death. If there is another hypothesis open which is consistent with innocence, your client must have the benefit of it.

MR KENT: Yes, and we submit that when you go on at page 329 in the final part of the majority judgment, there is a quantum leap, as it were, to the conclusion as to what was open to the jury to take into account.

DAWSON J: The question which would be posed in this case was posed in Knight at page 503:

The question which arose in the Full Court and which arises in this appeal - - -

MR KENT: Yes:

That question can, in the circumstances of this case, be rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot - - -

DAWSON J: And the rational inference, you say, which could not have been rejected in this case, is, what?

MR KENT: Is that the fatal injury could have occurred when the deceased was pushed and fell and struck her head and that that was done in circumstances which could not be said to be an act done with the intention to cause serious harm even though he might have, at an earlier time, formed such an intention. Perhaps if I could just quickly take the Court to where this culminates, in a sense, is in the last paragraph of the judgment:

In my opinion it was open to the jury to be satisfied beyond reasonable doubt that, as the Crown alleged, the deceased had died as a result of a severe beating given to her by the applicant -

Now, that is the global view of it. Now, that is not open to say that it is dying as a result of a severe beating which means as an accumulation of a number of injuries sustained. That is not the evidence.

a severe beating given.....and to be satisfied beyond reasonable doubt that, at all events by the time of the acts causing death, if not indeed also at an earlier point of time, the applicant intended to inflict really serious injury.

KIRBY J: Could you come back to the question Justice Dawson asked you at the beginning: given that this is not a Court of Criminal Appeal, given that we cannot go through every individual examination of the facts that is committed to the Court of Criminal Appeal, given that that is their function, given that Knight deals with the principle, what is there so special about this case that warrants our, as it were, doing the job that you say the Court of Criminal Appeal failed to do?

MR KENT: Where it is plainly obvious as is in this case that the court has not done the job that it should do, then special leave ought be granted as a direction to the Court of Appeal to ensure that it properly applies the test. The difficulty is this: easy to state the test; difficult of application. Where it is plainly and simply and easily shown, in my submission, that there is error then special leave ought to be granted.

DAWSON J: You say the Court of Appeal simply did not understand the test in Knight?

MR KENT: I suppose that is one conclusion one can draw or, simply - - -

DAWSON J: See, in Knight's Case the accused had formed an intention to kill one other person.

MR KENT: Another person, yes.

DAWSON J: But even so, when the act in question was looked at, there was not a hypothesis which was open.

MR KENT: Yes, that is so but that is a demonstration of how this case is in very similar circumstances. It does not matter there was only one person in this case as opposed to there being two in Knight's Case.

KIRBY J: In a sense, the warring of these parties over such a long time and continuous tells against an intent to kill, to cause the serious injury that would lead to the death.

MR KENT: To cause the serious injury, yes.

DAWSON J: I see the red light is on, Mr Kent.

MR KENT: I do, thank you. If the Court pleases.

DAWSON J: Mr McArdle.

MR McARDLE: Your Honours, there appears to be no issue as to the correct principles to be applied and that the Court of Appeal were referred to the authorities. The issue, it appears, is that somehow they have got it wrong.

DAWSON J: How could you negative the hypothesis that the fatal blow was inflicted when the deceased was pushed or tripped or in someway or another caused to fall so that she struck her head? On the evidence of Professor Cordner, how can you - - -?

MR McARDLE: Cordner's evidence was that there were, he thought, a number of blows, at least two to her head, but it was possible that the brain damage which ultimately caused her death could have been done by one good blow or a decent blow, I have forgotten the precise word that was used. It does not matter, it is submitted, much for the purposes of the argument.

DAWSON J: And how could you negative the possibility that the circumstances in which that fatal blow was caused was such as not to be accompanied by an intention to cause grievous bodily harm?

MR McARDLE: By an examination of the surrounding evidence which the Court of Criminal Appeal - it is an old case - undertook in the course of a reserved judgment and the judgment - - -

DAWSON J: Can you point to any passage in the joint judgment which demonstrates how you can negative that hypothesis? You see, the dissenting judge says this is a classic case of manslaughter. Do they deal with that proposition anywhere?

MR McARDLE: No, they do not meet his dissent in so many words, of course.

DAWSON J: Do they meet them at all?

MR McARDLE: Not, I think, indirectly, your Honour, but they were concerned, of course, with the specific intent and the ability of the jury to conclude that the specific intent was formed. That involved, as the Court has read, an analysis of what was heard by the neighbours. Now, my learned friend said that this took about an hour or could have been over an hour. A better estimate is that this man got home in the region of about half past ten; that he had called his brother in a state of distress at about 11 o'clock and that the police were called, I think by the brother, certainly after he and his mother had arrived at about twenty minutes past eleven.

KIRBY J: Was the calling of the brother when the pot was smashed over his head? The evidence suggests that he was telephoning or using the telephone when this happened, when the pot was smashed over his head.

MR McARDLE: He turned his head but certainly she was up and about, if I can use that expression, at that stage. The period of time is shorter than that. There is an uproar - - -

DAWSON J: But how does this help you, Mr McArdle? Mr Kent concedes that there may have been occasions, a number of occasions, when the intent to cause serious harm - if you want that - was present during the altercation but he says you cannot say that it was present at the time when - - -

MR McARDLE: I would say that an examination of the evidence - now there are important neighbours, probably the most important of whom was a man called Cronin who was - - -

DAWSON J: Yes, but all that establishes is that there was an altercation during which the accused may have formed, on a number of occasions, an intention to cause grievous bodily harm but that does not carry you home.

MR McARDLE: There was a continuing altercation in which, at the end of it or towards the end of it, she is begging to be left alone, that she is being hurt, and that is either the second or the third or the last thump, quite consistent - and, in fact, if that evidence is accepted, quite - - -

DAWSON J: But how can you say, if you want to take the last thump, that it was that which caused her death?

MR McARDLE: Your Honour, talking about the thump to the occipital part of the skull, to that injury; that was while, I think - it is Cordner's evidence that that might not have caused immediate unconsciousness. It was, in my submission, a substantial blow. It must have been. Whether it be one or two blows in that area. I think his evidence was it was probably more than one. There was a whole collection of bruising to all the other part of her body. Anyhow to return to the blow to the head: that, it is submitted, would have been - if it did not render her unconscious - a subduing blow. Throughout this, according to the neighbours - - -

DAWSON J: How can you say she did not sustain it when she fell?

MR McARDLE: There is no evidence that she fell, aside from being pushed or - - -

DAWSON J: Well, when she was pushed.

MR McARDLE: Your Honour, that would not be a thump, in my submission, along the lines - - -

DAWSON J: No, but the hitting of the head on the floor or some object would be.

MR McARDLE: Not, it is submitted, the sort of thump that the neighbours were hearing. They were at various places.

GUMMOW J: How far away were they?

MR McARDLE: The closest one, so far as I can gather, Mr Cronin, I think, was almost next door and he was standing - wherever he was, he was standing on the front verandah.

DAWSON J: You cannot exclude the possibility that the thumps which the neighbours heard were not the thumps which caused death.

MR McARDLE: It is submitted so in the event that the thumps concluded and then there was silence. Up until that time there had been a bitter dispute between both parties in which recriminations, complaint were exchanged. The Court would be aware, through reading the majority judgment in the Court of Appeal of what was said: expressions of aggression, especially on the part of the applicant. At the conclusion of that, you have these thumps and then silence and then, as far as the neighbours are concerned, some time after that - - -

DAWSON J: All that enables you to say is that there was a fierce altercation between these two parties, as a result of which the deceased met her death.

MR McARDLE: Yes, certainly, but it goes further: that she was subdued and silenced in the midst of a fierce altercation.

DAWSON J: Well, she was killed.

MR McARDLE: Yes, but to a bystander, she was silenced at the last thumping. Now, in the course of that there was hair pulled out. I think in my outline of argument I have said that there were six tufts located in the area of the dining room and the living room where this event occurred. There was blood found on a switch. That switch led to a laundry which, in turn, was the way out of the premises, the backdoor if you like. None of those things were ever met by the applicant's evidence. The blood certainly was not. There was blood on other items in the area; on a tablecloth and such. There was certainly a fierce fight which concluded in thumping and silence, and in the course of which - - -

DAWSON J: How do you know that the thumping was not the deceased thumping the accused? She broke a flower pot over his head after all.

MR McARDLE: Yes, but that would not be the end of the recriminations. He was not rendered unconscious or suffered any really significant injury, if I might use that expression, in the circumstances as a result of that. He required a couple of stitches in the crown of his head. He was quite capable of talking after that. If anything is to be gleaned from - - -

DAWSON J: No doubt, Mr McArdle, but it is a reasonable hypothesis that the deceased met her death by reason of a blow which was struck by the accused with the intention of causing grievous bodily harm but that does not excluded the opposite hypothesis that it was met by a blow to the head sustained when the accused was doing no such thing.

MR McARDLE: Your Honour, it is submitted that the Court of Appeal is correct in saying that you have to look at this collection of injuries and this cacophony together, and - - -

DAWSON J: But how do you exclude the second hypothesis?

MR McARDLE: It is submitted often the case where a victim in a homicide has, as well as the fatal injury or injuries, a series of other injuries. Those injuries are relevant, in my submission, to demonstrating the intent of the assailant. What has occurred in this case is a comprehensive collection of bruises, I think an abrasion on one occasion and the substantial closed head injury.

Your Honours, the circumstances, I repeat, of the neighbours and what they heard would suggest that the incident which was noisy, if nothing else - - -

DAWSON J: Yes. What I am putting to you is the circumstances give rise to a number of hypotheses, some of which are consistent with innocence and some of which are not but that is not good enough for proof beyond reasonable doubt.

MR McARDLE: It is submitted that the hypothesis, or at least the one that is rationally available, accepting the evidence of the neighbours, is that she was finally subdued as a result of a series of thumps, in the course of which she was pleading not to be hurt.

KIRBY J: In terms of consequence for the applicant, the sentence did not strike me as a particularly heavy one in the case of murder but it would be, I suppose, about two years or so if he were convicted of manslaughter and sentenced on that footing. Would that be a fair - - -

MR McARDLE: He did not appeal against any sentence for murder for good reason.

KIRBY J: Of course not, but that is on the hypothesis of murder.

MR McARDLE: Yes. I would have some difficulty making an estimate of what the appropriate sentence for manslaughter would be but I would - - -

KIRBY J: It is strictly irrelevant but if one is looking at what is its consequence for him, it would seem to me that he has about two or maybe three years additional custodial sentence. So, that is not insignificant.

MR McARDLE: Between the murder and the manslaughter it might be a bit more than that but, to be frank, I have not turned my mind to that. There would be a number of considerations before I could offer what I would hope to be a helpful estimate on that particular issue.

Your Honours, I repeat that the judgment of the court was reserved; reserved over quite a number of days. They had a quantity of material with which your Honours have not been supplied, for example, the interviews, photographs, plans and things of that nature. In the event that photographs or plans would assist the Court in assessing the situation here, well, they are available. But the Court of Appeal had a comprehensive collection of material as far as a reassessment of the case was concerned.

DAWSON J: So that you say the dissenting judge was simply wrong in its assessment of the facts?

MR McARDLE: Yes, with respect to his Honour and his Honour's experience in these matters. As his Honour says in his dissent, it is not entirely unusual, it happens.

KIRBY J: That comes from individual reflection upon the entirety of the evidence.

MR McARDLE: Yes.

DAWSON J: Yes, courts make mistakes.

MR McARDLE: I cannot say they do not but, on the other hand, there was at least one very senior judge in the majority, in so far as those matters are relevant to your Honours' considerations. They had a very careful look at it. If the Court pleases.

DAWSON J: Thank you, Mr McArdle. Mr Kent.

MR KENT: Just very briefly. One of the errors of argument that my learned friend fell into, in my submission, is an error the court fell into as well and that is with respect to the emphasis that it placed on the evidence of Mr Cronin. Mr Cronin's evidence as to thumps does not allow anybody to draw any conclusion as to what would cause those noises. What were they? It is merely speculative. The fatal act - it cannot be concluded the fatal injury was suffered before or after the period of silence. It cannot be concluded that the silence was occasioned by the rendering of the deceased incapable of doing anything. The parties may have become silent; the act may then have happened in silence. So, it is speculative and the emphasis upon the evidence of Mr Cronin that was placed on it by the Court of Appeal does not explain what it is that it meant. In the analysis, the court says it was open to the jury to accept him as a reliable witness. So it was, but "So what?" is really the question. "What does it mean?" It can mean nothing, in my submission.

KIRBY J: I suppose if special leave were granted we would be sitting there for a day combing through all the evidence doing our own individual assessment of the case.

MR KENT: In my submission, it does not really take that long.

KIRBY J: It does if you take it seriously.

MR KENT: I am not suggesting it would not be taken seriously but what I submit is that it is plain that the reasonable hypothesis consistent with innocence could not be excluded in this case. If the Court pleases.

DAWSON J: The Court will take a short adjournment to consider the matter.

AT 12.06 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.09 PM:

DAWSON J: By a majority, there will be a grant of special leave in this case.

AT 12.09 PM THE MATTER WAS CONCLUDED