Wu v The Queen S154/1998 [1999] HCATrans 34 (12 February 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S154 of 1998

B e t w e e n -

MEI QIN WU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1999, AT 4.23 PM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by Van Houten Solicitors & Attorneys)

MR G.S. HOSKING, SC: May it please your Honours, with my learned friend, MR A.M. BLACKMORE, I appear for the respondent. (instructed by the Director of Public Prosecutions (New South Wales))

MR WENDLER: As your Honours know - - -

KIRBY J: Yes, we have read the issues. We think we would be helped by Mr Hosking going first. The question is whether or not the judge who had the undoubted discretion exercised it by reference to the correct principles or whether, under the pressures, understandable enough of the day and the trial, he simply went ahead and did what he thought was convenient, considering that there was no magic in 12. In other words, whether the discretion focused on the incorrect principles.

MR HOSKING: Your Honours, we submit, with respect, that even if that is so - and we make no concession about it - but even if what your Honour said was so as a fact, that that would not be a matter which should attract a grant of special leave in this Court.

KIRBY J: Well, the applicant reserved the point. He wished to have a jury of 12. For all we know, because the jury is a sphinx, the twelfth member might have been in his camp and, instead of that, the judge, in the face of the ancient history of the common law, said, "What is the magic in 12?" Well, there is a magic in 12. It is the right of the accused to have the verdict of 12, except where, properly exercised, the discretion under the Jury Act excuses the jury from such a composition. It goes back to the 12 apostles, does it not, historically?

MR HOSKING: It goes back a long way, your Honour, yes, I concede that.

CALLINAN J: The other underlying problem, Mr Hosking, seems to be the way in which, with respect, his Honour dealt with the matter. I understand his Honour was very busy but he seemed to be influenced by the fact that he himself, through no fault of his own, had had a couple of days off because of medical problems and the reason why his Honour discharged the juror seems to be that he thought the case might go longer than he would have liked it to have gone which, with all due respect, is not a good reason, I would have thought, to discharge a juror.

MR HOSKING: Your Honours, my learned friend put to the Court of Criminal Appeal, and perhaps puts to this Court, I am not sure, that his Honour's exercise of his Honour's discretion was capricious. As your Honours have seen, we take issue - - -

KIRBY J: It does not have to rise to that level to succeed. All he has to - if he gets special leave, once he gets through the gateway, is to say that the discretion miscarried, that it was made according to incorrect principles or not sufficiently attentive to correct principles. It is not a very big issue and would not take very much time.

MR HOSKING: No, that is true.

KIRBY J: But it is a point that was properly reserved by the applicant at the trial and which he wishes to argue now, having failed in the Court of Criminal Appeal.

CALLINAN J: In circumstances in which one could have a great deal of sympathy for the trial judge who was probably very pressed. It is no secret that that court works extremely hard in criminal matters but, in a sense, that might highlight the importance of due - I will not process - but that this matter receive the attention, when it arises, that it should receive.

MR HOSKING: Your Honours, the submissions that we have put are, firstly, that this was a discretionary judgment and even if exercised incorrectly, that it would not be a matter for special leave. I do not know that there is a great deal more we can put to your Honours. Your Honours have formed a tentative view about it. We put the submission in writing. We put it, albeit shortly, orally.

KIRBY J: The written submissions are excellent and one can ask questions about a few of them, but the issue is very clearly posed to us and we are inclined to think that it is a special leave matter. It is not going to take very long. It is always a pleasure to hear from you, Mr Hosking.

MR HOSKING: That is very kind of your Honour. If your Honours please.

KIRBY J: I should also say from you too, Mr Wendler.

MR WENDLER: Thank you, your Honour.

KIRBY J: Though we do not hear from you quite so often.

MR WENDLER: In this role I prefer not to be heard, your Honour.

KIRBY J: There will be a grant of special leave in this matter.

What is the position so far as the applicant, he is - is it a she?

MR WENDLER: It is a she. She is in custody serving her sentence.

KIRBY J: For how long? What is her sentence?

MR WENDLER: I think it is around four years.

KIRBY J: Four years. That might be a reason why a measure of expedition should be given to the hearing of the appeal.

AT 4.29 PM THE MATTER WAS CONCLUDED