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Hopwood v The Queen C7/1999 [1999] HCATrans 281 (12 August 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A44 of 1998

No A17 of 1994

B e t w e e n -

MARTIN FRANCIS BYRNES

Appellant

and

THE QUEEN

Respondent

Office of the Registry

Adelaide No A45 of 1998

No C7 of 1999

B e t w e e n -

TIMOTHY PAUL HOPWOOD

Appellant

and

THE QUEEN

Respondent

For judgment

GAUDRON J

GUMMOW J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 1999, AT 2.19 PM

Copyright in the High Court of Australia

___________________________

GAUDRON J: Before dealing with this matter, I understand counsel are present in Court?

MR C.J. KOURAKIS, QC: If the Court pleases, that is so. (instructed by the Commonwealth Director of Public Prosecutions)

GAUDRON J: And there is something to be said to the Court about the undertakings, is there?

MR KOURAKIS: Yes, if the Court pleases. If the Court pleases, I appear for the Commonwealth Director of Public Prosecutions. As a condition of a stay of warrants issued in this matter, the appellants gave undertakings to present themselves to the Sheriff on the morning of the day of judgment. For reasons that are explained in certain affidavits, they have not done so. The Commonwealth Director respectfully asks that this Court not hand down its judgment today, but that it fixes another day for judgment at a time when the appellants can honour the undertakings given. I understand that a period of about two or three weeks would be required for that purpose.

MR T.A. GRAY, QC: May it please the Court, the position is that neither of the appellants are in the jurisdiction. I do hold affidavits that explain what has occurred. Both have arrangements to be in the jurisdiction next week, by Thursday of next week at the latest. If the Court pleases, my client's position is that I am happy to have this affidavit shown to the Court to explain their non-attendance. (instructed by Haarsmas Lawyers (Byrnes) and Hume Taylor & Co (Hopwood))

GAUDRON J: Yes, well, perhaps you could tell the Court the content of those affidavits, please.

MR GRAY: If the Court pleases, as far as Mr Hopwood is concerned, he was notified by his solicitor but his solicitor, when he looked at his file and looked at a

draft of the undertaking that was given which allowed for 14 days' notice, Mr Hopwood then made arrangements - he is in Russia - and he is due to arrive and has made arrangements to arrive in Adelaide on 19 August, Thursday of next week. He acted promptly, having had the solicitor's advice.

Mr Byrnes' solicitor contacted him or attempted to immediately. He could not make contact either by voice mail or by telephone. It transpired that at the time of attempting to give him notice, he was actually in transit on an overseas flight; but as soon as he heard, he made arrangements to travel back to Australia, but his passport in the meantime had been given by his employer in America to arrange for a visa to go to Nigeria, and he was unable to board the flight, and he has made arrangements to arrive in Adelaide on Sunday, and will arrive in Adelaide on Sunday. So the explanation is proffered in that way. We obviously apologise to the Court, ....the explanation, and we are entirely in the Court's hands.

GAUDRON J: What do you say to the respondent's application?

MR GRAY: It cannot be opposed. An undertaking was given that has not been met. All we can do is offer the explanation that has been provided and simply abide the order of the Court. We cannot oppose the application in the circumstances.

KIRBY J: When was notice given to your client. I mean, when was it received from the Court that judgment was coming down.

MR GRAY: Thursday of last week the solicitors, as I understand it, notified both the clients as soon as practical thereafter, and arrangements were then made for travel. In the case of Mr Hopwood, the solicitor made the mistake of looking at the draft undertaking that varied slightly from the final, and he has deposed to that. As a result, Mr Hopwood was under the impression he had a little longer to return than, in fact, he had. In the case of - - -

KIRBY J: Is the position that as soon as they received notice overseas they made immediate arrangements to return to the jurisdiction?

MR GRAY: Yes, that is the position and the affidavits disclose that. In the case of Mr Byrnes, his was frustrated by the fact that he did not have his passport because it was with the authorities for a Nigerian visa. Both have now made arrangements to return.

GAUDRON J: Are you in a position to give undertakings, further undertakings?

MR GRAY: I can offer their undertaking, not mine, if the Court pleases; but I am instructed to undertake they will both return to Australia as deposed to in the affidavits, and the undertaking they have already given continues. I was specifically instructed to continue the undertaking that has been given and as dealt with in the affidavits.

GAUDRON J: We will adjourn shortly to discuss the matter.

AT 2.25 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.27 PM:

GAUDRON J: Having regard to circumstances which will shortly emerge, and having regard to the material set forth in the affidavits of William Fletcher Taylor sworn in this matter and handed to the court today, the Court is minded to excuse the appellants from any breach of the undertakings already given and to deliver its judgment in this matter.

(Reasons for judgment were delivered)

The order of the Court in matter A44 of 1998 is:

1 Appeal allowed.

2. Set aside the orders made by the Court of Criminal Appeal of the Supreme Court of South Australia on 17 June 1998, and in their place order that the appeal to that Court be dismissed.

In matter A17 of 1994:

3. Application for special leave to appeal:

a. from the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia dated 2 May 1996; and

b. from that portion of the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia dated 21 April 1994 dismissing the applicant's appeal in respect of his conviction on count 2 of the indictment

refused.

In matter A45 of 1998:

1. Appeal allowed.

2. Set aside the orders made by the Court of Criminal Appeal of the Supreme Court of South Australia on 17 June 1998, and in their place, order that the appeal to that Court be dismissed.

In matter C7 of 1999:

3. Application for special leave to appeal from the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia dated 2 May 1996 refused.

I publish those orders.

I think for more abundant caution it might be appropriate to release the appellants from the undertakings earlier given.

MR GRAY: I am obliged to the Court.

GAUDRON J: The Court will now adjourn to reconstitute for the part-heard matter.

AT 2.30 PM THE MATTER WAS CONCLUDED


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