Eastman v The Queen C5/1997 [1999] HCATrans 68 (25 March 1999)

IN THE HIGH COURT OF AUSTRALIA

Registry No C5 of 1997

B e t w e e n -

DAVID HAROLD EASTMAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 25 MARCH 1999, AT 10.25 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR R.D. CAVANAGH and MR G.R. KENNETT, for the applicant. (instructed by John Forrest Boersig)

MR T.A GAME, SC: If the court pleases, I appear with MR S.J. GAGELER for the respondent. (instructed by the Director of Public Prosecutions for the Australian Capital Territory)

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth: If the Court pleases, I appear with my learned friends, MS M.A. PERRY and MR C.J. HORAN, for the Attorney-General of the Commonwealth, intervening. (instructed by the Australian Government Solicitor)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MR N.D. HOPKINS, for the Attorney-General for the State of Victoria, intervening. (instructed by the Victorian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS C.F. JENKINS, on behalf of the Attorney-General for Western Australia, intervening. (instructed by the Crown Solicitor for Western Australia)

GLEESON CJ: Mr Jackson, you foreshadowed yesterday you might make an arrangement as to time with those on the other side.

MR JACKSON: Well, I have not, in fact, your Honour. Could I say I expect to be about three-quarters of an hour to an hour.

GLEESON CJ: Yes.

MR JACKSON: Your Honours, in that regard, may I commence by saying that the Court will have seen the written submissions and may I endeavour to move immediately to what, in a sense, is the hub of the matter? Your Honours, at his trial the applicant behaved in a manner which was bizarre and that is something which may be seen from the record of proceedings. In paragraph 6 of our written submissions, we refer to the places in the Federal Court's reasons where some of those events are referred to.

CALLINAN J: Mr Jackson, I cannot quite hear you, I am sorry.

MR JACKSON: I am sorry, your Honour.

KIRBY J: I am having the same trouble, Mr Jackson.

MR JACKSON: I am sorry. Your Honours, may I just go back just a little in that case? What I am seeing to say is this your Honours, that members of the Court will have seen our written submissions and I was going to seek to move immediately to what, in effect, was the heart of the case. In that regard, what I was seeking to say, your Honours, was that at his trial the applicant behaved in a manner which was bizarre and that can be seen from the record of proceedings. We give in paragraph 6 of our written submissions the places in the Federal Court's reasons where some of those events are referred to.

GLEESON CJ: We see in some additional or supplementary material that came in yesterday a record of a legal argument in which he engaged, in which he seems to have conducted or expressed his argument with considerable lucidity.

MR JACKSON: Your Honour, with considerable lucidity, considerable enthusiasm, but that is part of the story.

GLEESON CJ: He gave evidence at his trial.

MR JACKSON: Indeed, your Honour, yes. I had not proposed, unless the Court wants me to, to go to the detail of the references which are given in paragraph 6 but I am perfectly happy if your Honours want me to. I was going to give your Honours another document which your Honours should have called Applicant's Extracts from Materials which contains a number of extracts from the materials which we have taken. Your Honours will see the references on the side of the page to AB. That is the application book which has three volumes. Your Honours will see it has a reference to SM1, 2 and occasionally 3, I think.

KIRBY J: Are these put forward on the basis that they self-evidently demonstrate to us the fact that there was an issue as to the mental capacity of your client, that we have enough expertise in discerning madness or mental incapacity to be able to decide this for ourselves without any expert help?

MR JACKSON: Well, your Honour, in relation to the first of those things, what is put forward for your Honour is to say if one looks at the record of proceedings and no more for the moment, if one looks at that one can see that there was bizarre behaviour engaged in by the applicant and that that material indicated objective facts which showed that circumstances had arisen at the trial which required the judge to utilise section 428E of the Crimes Act 1994 . As to the second part of what your Honour has put to me, it is the usual expertise one sees in experienced judges arriving at a view, I suppose, on many topics.

CALLINAN J: Mr Jackson, I see that Mr Carruthers described what happened, and that would encompass these sorts of examples that you have given us, as tactical manoeuvring. That is at page 424 in the sentencing remarks. So that the view that his Honour took at the time was not that this was bizarre conduct or the conduct of a mentally infirm person.

MR JACKSON: Your Honour, I appreciate that and what we seek to say is that his Honour in that regard was in error and that if one goes to the terms of section 428E of the Crimes Act, the situation which had arisen before him was plainly one that required the consideration to be given to the particular issue.

CALLINAN J: But, Mr Jackson, before you go on - I am sorry to interrupt you - I wonder whether there is not another threshold problem. You rely in the end upon Dr White's affidavit, is that correct?

MR JACKSON: We rely on it, your Honour, for a purpose.

CALLINAN J: But assuming it can be received, is it not critical, if Dr White's affidavit is inadmissible or for any other reason cannot be received, then you have no expert evidence, have you, of unfitness to plead, is that correct?

MR JACKSON: No, it is not quite, your Honour.

CALLINAN J: Well, in what respects is it not correct?

MR JACKSON: Well, it is not correct, your Honour, in this regard, that we would seek to say - well, may I answer your Honour directly by saying there is the evidence to which we have referred from Dr Milton, as well.

CALLINAN J: But there is no affidavit by Dr Milton, is there?

MR JACKSON: No.

CALLINAN J: Is that not a problem? There is no admissible evidence from Dr Milton. I notice Dr White relies to some extent upon Dr Milton. What Dr White seems to rely upon are the reports by Dr Milton which are not sworn and principally upon what your client told him during his interviews with him. There is some reliance upon the record also, but the principal matters that he relied upon, I think, are those two and it seems to me, provisionally, that there is no original evidence of those matters. In other words, the material is not properly before the Court, assuming it can be received.

MR JACKSON: Well, your Honour, could I seek to say in relation to those things, it is right to say that there is not an affidavit from the applicant himself deposing to what he told Dr White. However - - -

CALLINAN J: Which goes back to childhood, I might say.

MR JACKSON: Yes, your Honour, but it is perfectly clear that Dr White is recounting what he says the applicant told him. Now, your Honour, that is simply for the basis of giving his opinion.

GLEESON CJ: Perhaps we need to get the procedure a little clearer. It was understandable and very useful that you, as it were, went straight to the point of your argument, Mr Jackson, but what we have before us is an application for special leave to appeal from a decision of the Full Court of the Federal Court.

MR JACKSON: Yes.

GLEESON CJ: May I ask you, in support of that application do you desire to rely on any evidence?

MR JACKSON: Well, the answer is yes, your Honour.

GLEESON CJ: And what is the evidence?

MR JACKSON: The evidence is the evidence which is contained in the several affidavits which are in the - I will give your Honours the references in a moment.

GLEESON CJ: Well, perhaps you had better go through and identify the affidavits on which you rely so that we can hear whether your opponents object to them.

CALLINAN J: But there is another aspect to it, too, whether your opponents object or not. Let me make the assumption that the evidence can be received and is admissible, then ordinarily in a fresh evidence case there would be cross-examination, or there could be cross-examination, in order that the Court can be satisfied because the Court has to be satisfied about the matter. Dr Milton is not here to be cross-examined and there is no material upon which the applicant can be cross-examined.

KIRBY J: I thought I saw some agreement between the parties that the matter, subject to the Court, would be dealt with on the footing that if you got special leave and were allowed to call the evidence, that the evidence itself would be tendered on a later occasion, is that - - -

MR JACKSON: The contest about it, your Honour, yes. Your Honour will see that we have referred to that in paragraph 27 of our written submissions and it is referred to also by our learned friends in their submissions in paragraph 2.

GLEESON CJ: But before we proceed with the argument, could you tell us if there is any evidence on which you wish to rely in support of your application for special leave to appeal, and if so, what it is.

MR JACKSON: Yes, your Honour. Well, may I indicate what it is by reference, your Honours, to the index to volume 3 of the application book, and what I seek to rely on is the material referred to as items 12, 13, 14, 15, 16, 17, 18 and 19, and 23 and 24.

CALLINAN J: Sorry, Mr Jackson.

MR JACKSON: Your Honour, it is items 12 to 19 inclusive.

CALLINAN J: I have those, it is just the last.

MR JACKSON: And 23 and 24.

CALLINAN J: Thank you.

GLEESON CJ: Is three any objection to that evidence?

MR GAME: Yes.

GLEESON CJ: Which of that evidence is objected to and on what grounds?

MR GAME: Well, it is objected to on several grounds.

GLEESON CJ: The whole of it?

MR GAME: All of the evidence is objected to, yes. It is objected to first on the basis of relevance, that is to say that the material would only be received if it could have some relevance to the appeal, but the material could not be received on the appeal, having regard to section 73 of the Constitution and the decisions of this Court culminating in - - -

GUMMOW J: No, no, no. We have received evidence on special leave applications that would not be received on the appeal, for example, demonstrating how important the case is.

MR GAME: Oh, but your Honour, that is a quite different thing because if there were to be an appeal, it would simply concern, and it would concern nothing more or less than, the material which is relied upon, so it is not as if this is tendered for some other purpose. The purposes of having the material received is in order to argue that the material should be accepted on the hearing of the appeal. So - - -

CALLINAN J: Because it would show the significant possibility of a different result. I agree that - - -

MR GAME: But your Honour, sorry, if Mickelberg stands, then the same principle must apply when one comes to consider whether or not to receive the material on a special leave application.

GAUDRON J: No, because the special leave application is not the appeal and it is not even really a matter until the special leave is granted.

MR GAME: But, your Honour, you would not receive the material on a special leave application if, when you got to the appeal, you knew that you would have to reject the whole lot of it, because the whole thing would be a completely meaningless exercise. There would be no point in - - -

McHUGH J: Your point is that, although this is an application to commence proceedings in the Court, the evidence now sought to be adduced would not be relevant in those proceedings and therefore it is pointless.

MR GAME: Precisely. We have other objections which are ancillary objections, one of which is that the whole of the material relied upon by Dr White is either not admissible to prove the truth of those facts, having regard to section 60 of the Evidence Act and the decision of this Court in Lee, that the assumptions and material and opinions relied upon are not adequately, or in any sense meaningfully, identified. We have sought to show how one can, in a very simple exercise, demonstrate that Dr White acts on a number of quite serious misapprehensions about Mr Eastman and the trial, so - - -

KIRBY J: But that is ancillary to your fundamental objection which stands at the threshold and, in effect, you say you should not even be drawn into that because the Court may not receive this material, period.

MR GAME: Yes, quite.

GUMMOW J: But look, Mr Game, Mr Jackson has a great obstacle in his path which is Mickelberg, right?

MR GAME: Yes.

GUMMOW J: He wants, as I see it, to get special leave as a step to overthrowing that decision.

MR GAME: Yes.

GUMMOW J: Is that right?

MR GAME: Yes.

GUMMOW J: He has to show he has some footing on which to do that and that is all this is.

MR GAME: Quite.

GUMMOW J: That is all. It just goes to give him some sufficient standing to challenge Mickelberg, that is all. He may not succeed, but there it is.

CALLINAN J: But have you or have your not got an objection to form?

MR GAME: Yes, your Honour, we do have an objection to form.

CALLINAN J: And on that basis it does not matter what the proceedings are, whether it is an application for special leave or whether it is a substantive appeal, and you say that the evidence must be in a proper form. Is that correct?

MR GAME: Yes, but we do not even have an affidavit from the applicant who, it is said, is now capable of giving instructions.

GLEESON CJ: The point, I think, has been made earlier by Justice Callinan. A lot of the opinion of Dr White is based on information provided to him that is not verified by anybody.

MR GAME: Yes, and if we were pushed to it, we could take your Honours through that report and show, line by line, where the assumptions are false, where the assumptions come from, how Mr Eastman has, in a one hour interview or whatever - - -

GUMMOW J: I know, but the question is: to what issue does this material go? That is the question, is it not?

CALLINAN J: If form is no good it does not matter, does it? I am sorry, but if the form of the material is unacceptable, it does not matter to what issue it goes, it cannot be received. Is that what you say?

MR GAME: Precisely, your Honour.

KIRBY J: And would we determine that on the special leave application? Would we not simply, as Justice Gummow has said, look at it from the point of view of seeing whether it provides the threshold to consider a quite important constitutional question as to whether the word "appeal" in the Constitution means only some, and contrary to the Privy Council practice apparently, rigid, narrow view of the matter.

MR GAME: But, your Honour, if that is to be determined, that can be determined as an answer to our objection; that is to say, our objection is the trigger for consideration of that constitutional question if one comes to that point. We say that - - -

GUMMOW J: You say you cannot get to the constitutional question?

MR GAME: In this particular case.

GUMMOW J: All right, because of these matters of form?

MR GAME: Yes.

GUMMOW J: All right.

MR GAME: I am sorry, your Honour; they are not small matters of form, your Honour. As Justice Callinan says, if this material were, in effect, put up in the Court of Criminal Appeal as the basis of a fresh evidence - - -

GUMMOW J: Not there, but it is on a higher level.

MR GAME: I know, that is quite so, your Honour, but it does not get to first base.

GLEESON CJ: Now, Mr Game, we have elicited from you in a general nature the sorts of objections you would wish to take. May I ask you this, just for the purpose of working out how we will proceed from here: on the assumption that this evidence, or any of it, were received in support of the application for special leave to appeal, would you desire to cross-examine, in the application for special leave, any of these deponents? May I just explain why I ask that question. If the answer to that question is no, a possible course for us to pursue would be then to hear fully what Mr Jackson has to say in support of his application for special leave and at the same time in support of his argument for the admissibility of this evidence, and he will take about an hour to do that, and then we could hear what you have to say in opposition to the application for special leave and at the same time hear what you have to say in opposition to the reception of the evidence, without our having to rule on the admissibility of the evidence first. But that would be a course that would only be a sensible course if you did not desire to cross-examine any of these witnesses on the application for special leave. We might then be in a position to deal with questions of admissibility and of substance at the same time.

MR GAME: Your Honour, we would be happy for the argument to proceed; however, with this proviso, that we would wish to cross-examine Dr White, if the Court were mindful to receive the material - - -

KIRBY J: That is in the substance of the appeal pursuant to special leave granted?

MR GAME: No, on the special leave application.

KIRBY J: Well, that seems contrary to what was your agreement with Mr Jackson. I have to tell you, Mr Game, that obedient to Mickelberg I have not looked at any of this material and will not do so until it is provided as a foundation for its admission by the Court.

MR GAME: Can I just say this: we wish to protect the right to cross-examine at some point in this Court Dr White, but we do not wish to put procedural barriers in the way of our friend's putting an argument about Mickelberg. However, we do - - -

GUMMOW J: Well, I thought Justice Gaudron's directions dealt with all this and that was the spirit of it. That is why I am so shocked at what is happening this morning and taking - - -

MR GAME: We are happy for that to take place. But, your Honour, we have always maintained, and we maintained in the hearing before Justice Gaudron, that the material lacks cogency in the relevant sense for receipt as fresh evidence, and I said it quite specifically in the proceedings before Justice Gaudron.

GAUDRON J: Yes, but I understood you were going to make that argument, at least at first instance, on the grant or refusal of special leave by reference to the transcript.

MR GAME: Well, we have done it. That is what we have done in the written submissions.

GAUDRON J: And that today the matter would proceed by reference to (a), does Mickelberg apply, (b), should Mickelberg be overruled, (c), does this evidence which has come forward in any event provide anything which is sufficiently cogent to justify its examination at a later time.

GUMMOW J: Provide on its face.

GAUDRON J: Yes.

GLEESON CJ: Well, now, Mr Game, we have so far simply been discussing a preliminary question of how we will proceed and we will adjourn for a short time to consider the course that we will take in relation to this.

AT 10.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.04 AM:

GLEESON CJ: Senior counsel for the applicant has sought to read in support of the application for special leave to appeal from the decision of the Full Court of the Federal Court of Australia a number of affidavits being the affidavits numbered 12, 13, 14, 15, 16, 17, 18, 19, 23 and 24 in the index to the application book which appears on page 2 of volume 3. Objection has been taken to that evidence on a number of grounds. In addition, senior counsel for the respondent has indicated that if the evidence were received, he would seek to cross-examine the deponent of at least one of the affidavits.

Before ruling on the admissibility of any of that evidence and before, if necessary and appropriate, hearing any cross-examination, the Court will hear full argument from the parties and the interveners on an anterior issue which arises in the case. It has been foreshadowed on behalf of the respondent and the interveners that it will be argued that special leave to appeal should be refused on the ground that a grant of special leave would be futile by reason of the decision of this Court in Mickelberg v The Queen.

Senior counsel for the applicant has foreshadowed a number of arguments to the contrary of that proposition, including an argument to the effect that this Court should reconsider Mickelberg v The Queen.

The course that we will take today is to hear argument on that anterior issue relating to Mickelberg v The Queen, and we do not expect today that we will proceed further to hear or deal with arguments concerning the admissibility of evidence.

Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. Your Honours, the point I was seeking to get to a little earlier was to identify, first of all, the purpose which was to be achieved by receiving the additional evidence in this Court. To do that, your Honours, I need to go back just a little, and the point to which I was seeking to go was this, that we had submitted earlier from the references that we have given in paragraph 6 of our outline of submissions, and also in the document that I handed to your Honours, that the way in which the applicant conducted himself at the trial was very odd and, indeed, I think I used the expression "bizarre". And, your Honours, what we would seek to submit is that at various points in the trial the objectives facts were such that circumstances had arisen which required the Judge to use section 428E of the Crimes Act. May I take your Honours to its terms, and your Honours will see - - -

GAUDRON J: This is, in fact, an argument that never gets to Mickelberg, is it not? If I can just make that clear. If you are right on this point, one never has to consider Mickelberg.

MR JACKSON: Indeed, that is right, your Honour.

GAUDRON J: You are straight into Kesavarajah territory.

MR JACKSON: Yes, your Honour.

GAUDRON J: Yes, thank you.

MR JACKSON: Your Honours, that is quite right, but I need to say this as a foundation for where I am going.

GAUDRON J: Yes.

MR JACKSON: What I am seeking to say is that if one just looks at the material that there is concerning the conduct of the trial - and I am not speaking about anything outside the record for the moment - we would submit that circumstances had arisen where section 428E(1) was called into play. What I mean by that, your Honours, is if I could take your Honours to section 428E, it says in subsection (1) that:

Where, on the trial of a person charged with an indictable offence -

(a) the issue of fitness to plead to the charge is raised by a party to the proceedings or by the Court; and

(b) the Court is satisfied that there is a question as to the person's fitness to plead to the charge;

the Court shall order the person to submit to the jurisdiction of the Tribunal to enable the Tribunal to determine whether or not the person is fit to plead to the charge.

Now, the Tribunal is that referred to in section 428B, that is the Mental Health Tribunal established under the Mental Health (Treatment and Care) Act. I will come to that Act in just a moment, your Honours.

But may I, before doing so, invite your Honours to note in relation to section 428E(1) that all it requires is that there be, in terms of 428E(1)(b):

the Court is satisfied that there is a question as to the person's fitness to plead to the charge -

Now, your Honours, I will come to the meaning of "fit to plead" in just a moment because it is expanded upon by the terms of the Mental Health Act 1974 . But, your Honours, the inquiry then takes place before the tribunal and that the tribunal is required to determine whether the person is fit to plead for the purposes of section 428E.

GLEESON CJ: Paragraphs (a) and (b) are cumulative.

MR JACKSON: Yes, your Honour, I accept that. What is comprehended by the concept of "fitness to plead" appears from the Mental Health (Treatment and Care) Act, section 68(3).

KIRBY J: Does not the structure of the Act really rather indicate that this is a matter to be determined as a preliminary question in the trial, given the nature of the trial with a jury is a continuous oral event, that you cannot really just send the jury off for a couple of weeks whilst the tribunal deals with the matter?

MR JACKSON: I was going to take your Honours to the provisions that do refer to discharging the jury. I was going to refer to two things, your Honours. The first is going to the Mental health (Treatment and Care) Act, first of all, section 68. Your honours will see, if I could go to subsection (2), the inquiry that the tribunal conducts is:

such inquiry as the Tribunal thinks appropriate, the Tribunal shall determine, on the balance of probabilities -

(a) whether or not a person.....is fit to plead to the charge; and

(b).....whether or not the person is likely to become fit within 12 months after the determination is made.

Now, what is meant by "fit to plead" is then provided for, in effect, by subsection (3) and your Honours will see - I shall not read it out - but if your Honours look at the various subparagraphs of subsection (3) what you will see that it contemplates in (a) to (i) really all the aspects, or (a) to (j), as it is described, all the aspects which go to the conduct of the trial, not just to the commencement of it.

KIRBY J: But they would be apt to be determined as a threshold question which takes into account whether, during the whole course of the trial, the accused is able to do all of these things and will during the course of the trial, however long it may last or may likely last, to deal with all of those matters in subsection (3).

MR JACKSON: Well, your Honour, that is a possible view, I accept that, however, what we would seek to say - - -

KIRBY J: But it seems unacceptable to have a view that you can send away a continuous oral trial - interrupt it and send the jury away for a fortnight whilst the tribunal gets around to the matter.

MR JACKSON: Well, your Honour, could I just say that if one looks at the trial, that pleading would ordinarily take place before the jury is empanelled, yet the succeeding provisions of the Crimes Act really contemplate that the jury may be discharged. That that is so, your Honours, appears from section 428G(2)(a).

KIRBY J: Is that true that the pleading takes place before the jury is empanelled? I thought that the accused must plead in the presence of the jury.

MR JACKSON: The jury panel, your Honour.

GAUDRON J: This is a new regime, is it not, that was introduced in New South Wales some time in the 1980s and I think it has been copied extensively elsewhere?

HAYNE J: The common law was, was it not, that fitness to be tried was a moving feast and the accused could be fit to be tried one day, unfit the next, and if unfit on that next day the jury was either sent away or discharged and a new jury empanelled?

MR JACKSON: Well, your Honour, that seems to be contemplated, of course, in Kesavarajah.

HAYNE J: I think it has happened in Victoria on several occasions.

MR JACKSON: Yes.

GAUDRON J: But fitness to plead was a matter for a jury under the common law, I think, and a special jury was empanelled for that issue, that not being the jury that proceeded to the trial.

MR JACKSON: Indeed, your Honour.

GAUDRON J: But this is a different procedure entirely.

MR JACKSON: Quite. Your Honour, could I just say I note, of course, in relation to section 428G(1) that it is dealing with cases that are not serious offences. The other provisions to which I am about to come deal with serious offences, but I am simply going to it to indicate that it is one of the provisions that indicates that the jury may be discharged. Now, section 428G(1), your Honours will see, applies in the circumstances there referred to and then subsection (2) says:

Where this section applies, the Court shall -

(a) discharge the jury;

(b) make such orders as it considers appropriate.....; and

(c) adjourn the proceedings.

Then, your Honours, if one goes to 428H(2)(a) which deals with serious offences and the tribunal has notified the court:

that it has determined that the accused is unfit to plead to the charge but is likely to become fit within 12 months -

Then (2)(a) provides that the jury is discharged, and so on, and 428I(2) again provides for the discharge of the jury originally empanelled for the trial. All those provisions, your Honours, suggest that the trial is a trial which has commenced and would otherwise be going on.

Now, your Honours, could we seek to say this, that the issue of fitness to plead is something that, in our submission, should have been, in the first place, raised by the court during the trial in the light of the - - -

GAUDRON J: But 428E(1)(a) and (b) which are cumulative says "raised by a party".

HAYNE J: "Or by the Court".

GAUDRON J: "Or by the Court", yes.

MR JACKSON: I am just dealing with the court first of all, your Honour. What we would seek to say is that if one looks at the behaviour of the applicant during the trial, it was manifest, in our submission, that there was a question as to the applicant's fitness to plead to the charge in the sense used in section 68(3). Your Honours, one only has to look at his behaviour which - I used the expression "bizarre" before, but it really was quite extraordinary.

GLEESON CJ: Now, is this a point that was raised in the Full Court of the Federal Court?

MR JACKSON: No, I am about to say that, your Honour. It was not raised in the Full Court. That itself gives rise to a question. Now, what we contend is that it was a miscarriage of justice. I accept immediately that the issue was not raised in the Full Court and is one which is sought to be raised for the first time here.

HAYNE J: Is it miscarriage of justice, Mr Jackson, or whether trial occurred, that is, proper trial occurred?

MR JACKSON: I am sorry, I was using the term in a very loose sense. I was going to take up what your Honour has just said when I come to dealing with the evidence. What we seek to say first is that making an assumption, and I will come to the validity of it in just a moment, that the issue of the absence of a proper trial or miscarriage of justice, if I could use a loose term to describe it, is something that may be raised here, making that assumption for the moment, then the evidence which we seek to adduce is designed to perform a number of functions. The first is that it goes to explain why the failure to raise the issue at both levels below occurred. That is the first thing, your Honours. That, in our submission, is something - that is evidence of a particular character. I will come to it in a moment.

GAUDRON J: Could I interrupt you. If you are right on your first point, no one at this stage at an appellate level has to decide whether or not he was fit to plead. There was a failure simply because the question was not adverted to.

MR JACKSON: Yes, your Honour.

GAUDRON J: And you say there must be new trial at which that question is raised.

MR JACKSON: Indeed, your Honour. It is in relation to that aspect that the second matter of evidence goes and that is that the evidence goes to show that the adoption of the course of referral to the tribunal would not have been futile. What I am seeking - - -GLEESON CJ: What was the statutory provision that governed the Full Court of the Federal Court's exercise of jurisdiction?

GUMMOW J: Section 24 of the Federal Court Act, I think, and, in this Court, section 33.

MR JACKSON: Yes, that is so, your Honour. I think it is section 24(1)(b), your Honour, yes:

the Court has jurisdiction to hear and determine -

(b) appeals from judgments of the Supreme Court of a Territory;

And, your Honours - - -

GLEESON CJ: No, I am sorry, I am not making myself clear. In the Criminal Appeal Act of New South Wales there are a series of grounds upon which you can appeal; miscarriage of justice is one of them. What is the statutory provision that sets out the grounds upon which you can bring a criminal appeal to the Full Court of the Federal Court?

MR JACKSON: It was not further stated.

GLEESON CJ: Not further stated.

MR JACKSON: Your Honour, one sees - - -

McHUGH J: We dealt with it in Chamberlain [No 2]. It was argued at length in Chamberlain.

MR JACKSON: Yes it is. Your Honour, there is a reference to the passage from Chamberlain, I think, in our learned friend's submissions, which says, in effect, that the power is as wide as that of the Courts of Criminal Appeal.

GLEESON CJ: As wide as Courts of Criminal Appeal?

McHUGH J: Yes.

MR JACKSON: Yes, your Honour.

GLEESON CJ: And as narrow?

MR JACKSON: Well, your Honour, that aspect, I think the expression is at least as wide. I should also add that one sees section 27 in the Federal Court Act of Australia as well and section 27 says that:

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence -

and then it provides that evidence may be taken in a number of ways. Your Honours will then see some powers of the Court in relation to, amongst other proceedings, criminal proceedings in section 28(1) and they include in section 28(1)(e) and (f) the ability to:

(e) set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;

and then -

(f) grant a new trial -

et cetera.

Your Honours, what I was seeking to say was that some of the evidence which we seek to adduce also goes to show that the adoption of the course of referral to the tribunal would not be futile; in other words, to demonstrate that the course that we seek to have adopted is not one that is unlikely to have a satisfactory result and, to put it shortly, it would not be futile, and, in particular, I wanted in that regard to refer to the psychiatric evidence and, your Honours, what I had proposed to do at this point was take your Honours very briefly to the passages of evidence upon which we seek to rely in relation to those two aspects of the case.

Your Honours, in that regard, may I take your Honours to volume III and I wanted to refer your Honours to the passages to which we have referred in our outline of submissions. Your Honours, first of all, in paragraph 10 of our submissions, we refer to the position at the trial dealing with the legal advisers of the applicant.

If I could take your Honours to the affidavit of Mr Williams in volume III at page 609, your Honours will see in paragraph 3:

In early 1995 -

he was briefed -

to defend the applicant at his pending trial -

and then in paragraph 4 Mr Ramage's brief had been withdrawn, instructions had been withdrawn. In paragraph 5 he spoke to him:

about 5 times before the trial.

Your Honours will see in paragraph 6 that he:

was never able to obtain any instructions from the applicant in conference which were relevant to his defence.....the only instructions I could obtain from the applicant in conference were to apply to Chief Justice Miles to disqualify -

himself. Then your Honours, paragraph 8 - - -

HAYNE J: To what point do you say this material goes? Is it in aid of explaining why there was a failure to raise?

MR JACKSON: Yes.

HAYNE J: Yes.

MR JACKSON: Yes, your Honour, it goes to that. That is the first thing. Aspects of it, of course, have some evidentiary function in addition. One sees, for example, paragraph 8 which supports what would be the ultimate contention, in relation to his condition I mean, your Honour. That is all I am seeking to say about it but the particular reason why we are referring to it is to demonstrate the issue arose but was not raised.

Your Honours will see then paragraph 8 which describes his behaviour and your Honours will then see paragraphs 9 and 10 and, in particular, paragraph 11 where he was unable to talk about the trial. Paragraph 12 he became "apoplectic with rage" and fired them. If I could take your Honours through the remainder of it up to paragraph 14, in particular paragraph 14, he said he:

believed the applicant was not fit to plead -

He was -

incapable of giving any rational instructions.....it appeared to be impossible to discuss -

it with him. He:

told the Crown Prosecutor that I believed the applicant was unfit to plead, and asked him to.....see the trial judge.....The Crown Prosecutor declined.

He spoke to other barristers to see whether he "could raise the issue in court". He was told that he should not, and he did not.

Your Honours, Mr Lander is the next affidavit, page 613. At paragraph 2 he was retained to represent him in the murder trial and your Honours will see in paragraph 6 that he:

appeared to be incapable of giving any rational instructions.....This is not to say that he was not articulate or intelligent or that he lacked insight.

Your Honours will see that he elaborates upon that in paragraph 7. Paragraph 8, the instructions are withdrawn.

Then, your Honours, if I could go down to paragraph 9, he refers to the document which is at page 615 which is a letter sent to the Director of Public Prosecutions in which the view was referred to that he might be unfit to plead and then the basis for that is set out in the last paragraph . Now, if I could back to page 614, your Honours will see that he was asked about that by Ms Woodward, and then at paragraphs 11 and 12, your Honours will see what he said.

Mr O'Donnell's affidavit commences at page 616. Your Honours will see in particular paragraphs 6 to 8 where he describes the conduct of the applicant and also paragraphs 10 to 11; and then, your Honours, paragraph 19 at page 619, and in particular your Honours will see in paragraph 19 that he could not come back to discussing the evidence of Commander Ninness.

And also at paragraphs 21 to 26 of the same affidavit, paragraph 21, he said he had "conclusively" reached the view that he was "mentally ill and unfit to plead". He believed that the issue of whether it could be raised without instructions had been canvassed with the New South Wales Bar. Your Honours will see then a discussion took place with senior members of the Bar in the ACT, and your Honours will see that goes through to paragraph 26.

Now, your Honours, the events, I should say, to which he refers in paragraph 23 your Honours will see there referred to in volume II of the respondents' supplementary materials, at pages 357 and 358 if your Honours want a reference to it.

GAUDRON J: Now, I am a bit lost at paragraph 23. Does that mean that the question was raised in court?

MR JACKSON: No, your Honour. If I could just take your Honour to volume II, your Honours will see that at page 357 in volume II of the supplementary materials, and he endeavoured to get some time without disclosing precisely why. Your Honours will see that at page 357. The accused at the top of the page says something and then Mr O'Donnell, line 9 says:

before this goes any further, I would seek leave to withdraw; but I can foreshadow that before I can complete that - - -

and then line 14 - - -

GAUDRON J: I have not got that.

MR JACKSON: I am sorry, your Honour, page 357?

KIRBY J: There must be another numbering system.

GLEESON CJ: The numbers are in the top right-hand corner of the page. There are confusingly some different numbers at the bottom of the page.

MR JACKSON: Yes.

GUMMOW J: It is page 403 of the transcript.

GLEESON CJ: The numbers in the top right-hand corner are very hard to read because there is typing over them.

MR JACKSON: I know, your Honour, I am - - -

GAUDRON J: Thank you.

MR JACKSON: Your Honours, line 9 on page 357

Mr O'Donnell: Your Honour, before this goes any further, I would seek leave to withdraw -

And, then, line 14, and if one goes then to about line 18 he said:

it is more complicated than that. I was appearing before your Honour when Mr Eastman was last represented and I have not yet withdrawn. I am seeking leave to withdraw, but I am seeking a brief adjournment for no more than 10 minutes or a quarter of an hour. I have conflicting advice from the Bar Council in relation to my ethical position -

And, your Honours, will see what he said in the remainder of that paragraph and it goes over to page 358 and about line 19 your Honours will see the accused describes at some length his view of what had taken place. I was simply taking your Honours to that in the light of the reference at paragraph 23. Now, in paragraph 11 of our written submissions we refer to the fact that in the three references that I have already given your Honours the views of those representing the applicant, as to the mental condition of him, were brought to the attention of those representing the Crown at the trial. I have taken your Honours to those passages already.

The psychiatric evidence from Dr White your Honours will see referred to in paragraph 7 of our written submissions and what Dr White said, in effect, was that the state of affairs from which he was suffering was brought about by the fact that he had chronic paranoid schizophrenia, and if I could just take your Honours very briefly to the relevant parts of Dr White's reports. In volume III at page 573, lines 29 to 30, and then page 709 in the same volume where he gave a supplementary report and your Honours will see, in particular, if I could go to page 711 - I am sorry, I should have taken your Honours earlier to the reference which we have in paragraph 8 of our written submissions in connection with the earlier report. At page 573 I took your Honours to line 29 and that should go down to line 46 on that page. He said at line 32:

he was severely psychotic while he was under surveillance.....not fit to plead let alone represent himself.

And, then line 40:

mental health is now stable but he remains suspicious of those trying to help him and he remains vulnerable to stressors....is now fit to plead and he can instruct his solicitors although I anticipate the relationship with his lawyers will remain volatile. He is unfit to represent himself.

Your Honours, at page 594 he gives the summary of his opinion at the bottom of the page. That goes through for a number of pages through to page 599. His opinion is at the bottom of page 598 where he said he:

was suffering from Chronic Paranoid Schizophrenia by the late 1960's or early 1970's.

That goes through to the remainder of the report on the next page. I have not gone to the details of it; your Honours will see that set out. In the report of 29 September he again expressed those views and your Honours will see those at page 718 line 26 through to page 719 about line 29.

HAYNE J: Are the conclusions related at any point in the material to the various factors listed in section 68(a) to (j) of the Mental Health (Treatment and Care) Act?

MR JACKSON: No, your Honour, not in terms of looking at a factor and saying, "This is my view about that". However, one sees, for example, at page 715 that he discusses a number of matters which are germane to section 68. That is under the heading "Review of the Trial Transcript", and he also discusses under the heading "Fitness to Plead", commencing at page 714, a number of other matters that would fall under several of the headings in section 68.

HAYNE J: Yes, I had looked at pages 714 to 715 particularly. At some point, if convenient, you might give a list of those of the paragraphs that you say were engaged.

MR JACKSON: Yes, your Honour. Could I go from that to say this, that in addition to the communication to the Crown's representatives of the views of those representing the applicant at the trial, the Crown had available to it, as we seek to say in paragraph 12, a large number of reports about his state of mind from a forensic psychiatrist, Dr Milton. Those reports are in volume III of the reference we there give. They commence at page 622 and go through to page 678 and they pointed to the fact that he was suffering from a serious mental illness.

GAUDRON J: Did I read somewhere he thought that he could at least raise diminished responsibility by way of defence?

MR JACKSON: I am sorry, I did not catch what your Honour said.

GAUDRON J: Did I read somewhere in Dr Milton's reports the opinion that he could rely on diminished responsibility?

MR JACKSON: Yes, your Honour.

GAUDRON J: Which, of course, he did not.

MR JACKSON: No. Now, your Honours, I will not go - - -

GAUDRON J: Can you identify where that is? Not necessarily now, later.

MR JACKSON: Can I give your Honour a reference in a moment?

GAUDRON J: Yes.

MR JACKSON: Your Honours, so far as the appeal was concerned, he had also refused to allow those who might have appeared for him on the appeal to raise the issue of his mental condition at the trial.

GLEESON CJ: The issue of diminished responsibility would have been inconsistent with the defence, would it not?

MR JACKSON: Yes, your Honour. His defence was that he was not the one who did it.

GLEESON CJ: Yes.

MR JACKSON: I was going to refer your Honours to the references which we have in paragraph 13 of our submissions. Your Honours will see at page 680 Mr Boe's affidavit. Paragraph 2, he was retained to represent him in the appeal. The instructions were withdrawn in December 1996. Your Honours will see that paragraphs 5 and 6 he was unable to give proper instructions and at paragraph 7, he found he was either obsessed or delusional for most of their dealings. Your Honours will see then in paragraph 9 he was:

not prepared for the issue to be raised on appeal.

And then paragraph 10, Mr Boe put it to him in writing. At paragraph 11, he withdrew Mr Boe's instructions and, specifically, his Honour refused to allow him to raise the issue. Mr Odgers, at page 683, in paragraph 2 refers to the fact that Mr James and he advised Mr Eastman it would be desirable to undergo a psychiatric assessment for the purpose to which he refers and he refused to do it. Mr Collaery, the paragraph at page 685, your Honours will see paragraph 5 at the top of page 686, Mr James asking if he could get Mr Eastman to agree to a psychiatric evaluation. Your Honours will see that goes through the remainder of that page and to the top of page 687 where he said:

"well I just refuse you to get a psychiatric assessment".

Now, your Honours, that is the material upon which we would seek to rely. Your Honours, what we would submit is that it would only be if the miscarriage of justice, in the sense to which I earlier referred, issue cannot be raised in this Court at all or if evidence to show the miscarriage of justice was not admissible in this Court that the material could not be relied on here. Your Honours, as to the first of those matters - - -

KIRBY J: Is there a chronology? I see the document you have handed up, extracts materials, but is there a chronology which sets out the steps of the legal representatives?

MR JACKSON: We gave a chronology, your Honour, which I think was a joint chronology for both the cases - I just do not have it in front of me at the moment - it incorporates, I think, also the pages of the Full Court's reasons where their Honours set out his dismissal of various representatives in the course of the trial. Your Honours will see that referred to in item 14 of the chronology which refers to the application book volume II commencing at page 62 where the Full Court has set it out.

Now, your Honours, what we would seek to say is that, I suppose, the first question which arises is the validity of the assumption to which I referred earlier and that is the question whether the issue can be raised in this Court at all, not having been raised below. Your Honours, as to that matter, that is an issue to which - and I will come to it in just a moment - some members of the Court referred in Gipp v The Queen (1998) 72 ALJR 1012. In relation to that issue, your Honour Justice Gaudron at page 1017 in paragraph 23 said in the second line:

First, were I of the opinion that, given the limited nature of the argument in the Court of Appeal, it could not be said that it adopted an incorrect approach in considering whether the convictions were unsafe or unsatisfactory, I would, nonetheless, grant leave to the appellant to amend his grounds of appeal and allow the appeal. In this respect, it is sufficient to note that, when an appeal is lodged, the entire matter is before the court to which the appeal is brought and, unless there is some statutory provision to the contrary, that court "can entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous".

Your Honours Justices McHugh and Hayne at page 1024, and in the passage that goes on to page 1025, dealt with the issue and the relevant paragraphs are paragraphs 62 to 65 and what your Honours said, if I can put it relatively shortly, in paragraph 62 is that:

However, in Pantorno, the Court allowed an appellant to take a ground of appeal that had not been argued in the Court of Criminal Appeal -

and your Honours expressed the view that the judgments appeared to take the view:

that the point had been raised implicitly although not argued in the Court of Criminal Appeal.

Your Honours then went on to say in the next paragraph that:

No such explanation is available in respect of Giannarelli v The Queen where the Court quashed a conviction on a ground that had not been taken at the trial or in the Court of Criminal Appeal.

The jurisdiction of the court to deal with it was not dealt with, but both Chief Justice Gibbs and Justice Deane had referred to the fact it would only be in "exceptional circumstances." Could I just pause to say, your Honours, that in Mickelberg, in Chief Justice Mason's reasons for judgment - I will take your Honours to them in a moment - Giannarelli is referred to for this purpose.

In paragraph 64 your Honours refer to the factors that were thought, in Gianarelli, to make it:

sufficiently exceptional to require a grant of special leave.

Your Honours then went on to say in paragraph 65 that:

we would wish to hear full argument on the issue before setting aside a judgment of a State or federal court on a ground that was not raised in the courts below. Whether the appellate jurisdiction of this Court extends to setting aside a judgment of a State or federal court upon a ground not argued in those courts is a question of far reaching constitutional importance. It is a question on which the States as well as the Commonwealth have a vital interest -

and your Honours will see the further reference.

Now, your Honour Justice Kirby dealt with the issue at page 1040 and in particular paragraph 138, where your Honour said that:

Nothing in Mickelberg v The Queen or any other authority of the Court forbids the course.

Your Honour discussed Mickelberg as saying that:

the Court construed the "appeal" provided for in section 73 of the Constitution as excluding the reception, in this Court, of fresh evidence which was not before the courts below. It restated the proposition that an appellate court is called upon to "redress error on the part of the court below".

And your Honour went on to say:

In deciding whether error is demonstrated the appellate court looks to, and not outside, the materials that were before the court a quo. Otherwise, Mickelberg simply confirms the principle that the powers of this Court in an appeal "are of the widest character which true appellate jurisdiction may possess".

Your Honour went on to say:

The decision does not prevent this Court, within the record, from reconsidering the judgment, decree, order or sentence from which the appeal comes.

And, your Honour, I will not read out the remainder of the paragraph, but I would refer your Honours particularly to the passage at the top of page 1040 at the bottom of the left column:

From the earliest days, in the determination of appeals, this Court has asserted a jurisdiction, held in reserve, to avoid an injustice brought to its notice, although not raised at the trial or in the court of appeal. In truly exceptional cases, to avoid the risk of a serious miscarriage of justice, to vindicate the law or to prevent the repetition of similar mistakes of law, the Court has upheld a prisoner's appeal although the point ultimately successful was never taken below, whether at trial or in the Court of Criminal Appeal. The present is such a case.

Your Honour Justice Callinan at page 1044 in paragraph (164) referred to the fact that the point was argued for the first time in a court and your Honour noted, if I could just observe in passing, in paragraph (165) that:

At the outset, counsel for the appellant in this Court.....mindful of no doubt what was said by Gleeson CJ in R v Birks, was anxious to dispel any impression that points taken before us were deliberately not taken at the trial for tactical reasons.

Now, your Honours, if I could just pause to say your Honour's observation there does rather suggest that it is appropriate to inform the Court by one means or another of the reason why some point which might be material was not taken or was not taken into account or was not dealt with. Sometimes there are cases where a legal practitioner who was responsible for the conduct of a matter has been cross-examined about the reason why a particular point was not taken when the point is sought to be raised on appeal.

Your Honours, if I could just pause and I am dealing with a matter slightly off the main submission I am seeking to make, what that passage indicates is that it recognises the appropriateness in appropriate cases of taking into account the reason why something was not done.

HAYNE J: As to that, Mr Jackson, is there not an irony in the proposition that a legal practitioner did not take a point of fitness to plead, that is the legal practitioner accepted the instructions of the person concerned that the point should not be taken when, by hypothesis now contended for, the person was unfit to give the instructions?

MR JACKSON: Well, there is, your Honour.

HAYNE J: Therefore, what turns on the fact that the legal practitioner did not take the point? I can understand its use in forming a conclusion whether there was a case for inquiry if the practitioner thought fit to receive instructions. That is perhaps a matter to take into account but does it bear at all on the issue now confronting the Court that the point was not taken?

MR JACKSON: Your Honour, it can bear on it in a number of ways, I suppose. What your Honour puts to me I will accept in broad terms, that one aspect of the issue is: what was the condition of the person at the time? Were they or were they not fit to plead?

HAYNE J: That is fit to give instructions for the conduct of their trial?

MR JACKSON: Yes, your Honour.

GAUDRON J: Or, for this part of your argument, is the question simply whether there was a question whether they were fit to give instructions?

MR JACKSON: Your Honour, that is the statutory context in which the issue arises and in dealing with that - I mean, that is the conduct of those who were appearing for the person at the time and the perceptions of them may well be of some relevance.

If one has a situation where it is said, "Well, there was an experienced practitioner acting for them", that might be put as some kind of answer to the proposition the person was not fit to plead in that extended sense because one would say, "Well, if the experienced practitioner acted for numerous people in the past in criminal jurisdictions, they would know whether they were fit or not", that is a fair inference to be drawn. But if, in fact, you get the person saying, "Well, I thought that he was not fit to plead and I took steps in relation to it", that supports the proposition, we would submit.

Your Honours, finally, in relation to your Honour Justice Callinan, could I refer to paragraph 185 at page 1048 and your Honour refers between letters D and E, your Honour says:

It is impossible to say that the appellant did not lose a chance which was fairly open to him of being acquitted. Had the attention of the Court of Appeal been drawn to these matters or had their Honours themselves noticed them, the Court may well, and should have set aside the verdict and ordered a retrial. Furthermore, had the Court of Appeal undertaken the independent assessment.....as a whole as required of Courts of Appeal it would, I think, inevitably have reached this conclusion.

Your Honour went on to say that it was "in error". Now, your Honours, if one comes then to the position of this Court, in our submission there is nothing in the concept of an appeal under section 73 or in the concept of an appeal to this Court pursuant to section 33 of the Federal Court of Australia Act, which would prohibit the Court from taking into account matters of the kind to which I have referred. When I say that, what I am seeking to say is that there is nothing to prohibit the Court dealing with an argument or a circumstance which arises for the first time in this Court.

What I mean, in particular, is that if one looks first of all at the - and I will come to the question of power in a moment - circumstance in which the issue arises, its nature is such that it attacks the very foundation of the trial, and your Honours will see the references in paragraph 14 of our written submissions.

GAUDRON J: Is that argument based exclusively on section 33 or do you say that is a matter that could be taken into account as a section 73 of the Constitution appeal regardless of Mickelberg? I am just not sure what you say.

MR JACKSON: It depends on the result of the other case I suspect, your Honour.

GUMMOW J: That is right.

GAUDRON J: I want to know if you put it in the alternative?

GUMMOW J: We will get to high noon eventually on all this but the Commonwealth seems to take the view that this is an appeal under section 73 even though in the Full Federal Court, section 24 was a territory law and somehow passes through the magic mirror and it comes out the other side and gets picked up as federal jurisdiction under section 73. Is that your submission?

MR JACKSON: It is using - your Honour, what seems to be the Commonwealth submission in that regard is that it is using all available powers I suppose, including section 52, but leaving that aside for the moment, what we would seek to say is that if one is looking for the statutory power first of all to enable this Court to deal with the matter, it is to be found or purports to be found in section 33 of the Federal Court of Australia Act. And, your Honours will see that it says in section 33(3) that:

an appeal shall not be brought from a judgment of a full Court of the Court unless the High Court gives special leave to appeal.

Now, the provisions of section 33 do not seem to be expressed in terms of conferring jurisdiction. They seem to be a utilisation of the opening words of section 73.

GUMMOW J: And section 33(6) seems to be a law under section 79 of the Constitution.

MR JACKSON: Yes, your Honour. So that if one - what I was going to say was that the provisions of section 33 do not, in terms, seem to express themselves as a conferral of jurisdiction but rather as doing, essentially, two things. One is to be prescribing exceptions or regulations in terms of section 73 and the other is, as your Honour said, to be an exercise of the power to prescribe the number of judges in section 79. Now, that would seem to mean that the applicable provision is section 73 and section - - -

GAUDRON J: Well, now, you do not want to say it does not apply, do you?

MR JACKSON: No, I do not, your Honour.

GUMMOW J: Just before you get to that, though, Mr Jackson, looking at section 33 of the statute, does not section 15C of the Acts Interpretation Act then apply?

MR JACKSON: I am sure your Honour is right but I - - -

GUMMOW J: Well, I do not know. It is one of those tricky sections tucked away. It deems a vesting, you see, 15C.

MR JACKSON: Yes, I am sorry, your Honour. Well, your Honour, it has its difficulties, if I can put it that way.

GUMMOW J: That is right.

GAUDRON J: Yes. It vests us with jurisdiction if we grant special leave, I think. That may be the way it works.

GUMMOW J: I think that may be the way it works, yes.

MR JACKSON: Yes, your Honour, but ultimately it would - it is rather difficult, with respect, to take section 33(1) too far, in a sense, because what it is simply saying is that the jurisdiction:

is subject to the exceptions and regulations -

which are the words of section 73.

GUMMOW J: Yes, but I mean, the consequences can be quite serious because if the appeal is not truly an appeal under section 73 - so it is a Capital TV situation - there is no investment at all.

MR JACKSON: Your Honour, the difference, of course, is that one is talking about now the appeal to this Court is from a Federal Court.

GUMMOW J: Yes, but exercising jurisdiction with respect to a matter in section 75 or 76?

MR JACKSON: Well, your Honour, that is where we would say that the law under which - the law which gave rise to the count of murder which was section 18, I think, of the Crimes Ordinance at that time was a law made by the Parliament.

GAUDRON J: You would say from GPAO it follows that once the matter got to the Federal Court, at least, it remained a Federal Court and it was exercising federal jurisdiction?

MR JACKSON: Yes, your Honour.

GUMMOW J: Even if it was not such in the Territory court?

MR JACKSON: Well, there is no special reason why it could not be exercising federal jurisdiction in doing so. Well, there are two possibilities, I suppose: one is that the Supreme Court of the Territory was exercising Territory jurisdiction, and Territory meaning non-federal but, your Honours, when one comes from that to the Federal Court what you see is, of course, section 24 of the Federal Court of Australia Act.

GUMMOW J: No, the question is: what is the source of authority for section 24(1)(b) or whatever it is, and where is the power?

MR JACKSON: Your Honour, the source of authority is - - -

GUMMOW J: Is it 77(i) or is it 122, that is the question?

MR JACKSON: Well, your Honour, we would 77(i) because what you have is that, first of all, you have the creation of the Federal Court, and if one assumes for the moment that is done pursuant to section 71, and then in relation to the Federal Court, jurisdiction is conferred. Now, the conferral of jurisdiction, of course, involves really two things or involves legislation that can be characterised in each of two ways: one way being that you have a law made by the Parliament which is simply a law defining the jurisdiction of the Federal Court with respect to a matter referred to in the previous section and that is a matter arising under a law made by the Parliament - - -

GUMMOW J: What is the matter arising under the law?

MR JACKSON: Your Honour, the matter is - - -

GUMMOW J: It is the correctness of the ACT Supreme Court verdict, is it not, whether that should stand?

MR JACKSON: Yes, your Honour, yes.

GUMMOW J: There has to be the Crimes Act plus the Supreme Court Act, does it not?

MR JACKSON: Your Honour, I think that is probably right, yes.

GUMMOW J: I mean, the murder is just out there.

GAUDRON J: But ultimately it is not the Crimes Act of the ACT, is it, at this stage? It is the ordinance which applied, the New South Wales Crimes Act, the ordinance itself having been made pursuant to the old Seat of Government Act.

MR JACKSON: Yes, your Honour. Seat of Government (Administration) Act, I think your Honour it is.

GAUDRON J: Yes.

MR JACKSON: And the - - -

GUMMOW J: The matter is a so-called appeal being the decision of the ACT Supreme Court.

MR JACKSON: I am sorry, your Honour, I did not hear - - -

GUMMOW J: The matter arising for 76(i) and therefore picked up by 77(i) to found 24(1) of the Federal Court Act, the matter is the decision of the ACT Supreme Court, is it not, in exercising it jurisdiction conferred under its statute - which has a complicated history we have been hearing about - to try certain crimes, one of which is this crime created by that ordinance picking up the law of New South Wales.

MR JACKSON: Yes, your Honour. Your Honour, I am indebted to your Honour.

GUMMOW J: Is that how it works, though?

MR JACKSON: Well, in our submission, yes, and then - - -

GUMMOW J: But it arises then under laws made by the Parliament?

MR JACKSON: Yes, your Honour.

GUMMOW J: The laws made by the Parliament and the ordinance, plus the Supreme Court Act?

MR JACKSON: Yes. Now, your Honour, I think I was endeavouring to answer your Honour Justice Gaudron a moment ago, but ultimately it does seem to come back to section 73 and in dealing with section - - -

GUMMOW J: If that way of putting it is correct, it must go in through section 73.

MR JACKSON: Yes. Your Honour, if one goes then to section 73, what one sees is that it says that the Court has:

Jurisdiction.....to hear and determine appeals from all judgments, decrees, orders, and sentences -

(ii) Of any other federal court -

Now, your Honours, what I was seeking to say was that if one assumes that appeal in section 73 - - -

KIRBY J: Can I just go back to that question so that I get it out of my mind before we go too much further. If you are successful in the earlier proceeding, that is to say the one we reserved on, then there is no need, is there, for us to go into this matter? Is there any overlap between the previous proceeding and this one in the sense that it is a foundation, presumably of the jurisdiction of the Federal Court to hear the appeal from the Territory court, that that is a valid order of that court, giving rise to a right of appeal so called from the Territory court to the Federal Court? Is there any interrelationship between the first argument and the foundation of the jurisdiction of this Court flowing, as it does, through the Federal Court and the order of the Territory court?

MR JACKSON: Your Honour, the argument in this case assumes that the judge in the Australian Capital Territory Supreme Court held a valid appointment and was conducting a trial that he was authorised to conduct - and was, I should say, purporting to conduct the trial that he was authorised to conduct. I do not mean to be cute in putting it that way, your Honour. What I am simply endeavouring to have, in effect, as the reservation is the fact that we would say that the circumstances that occurred went to the whole validity of the trial.

KIRBY J: I realise that and my point is just slightly different. The judge's commission is personal to that judge and raises that section, I think it is section 8A of the Territory Supreme Court Act. But the whole constitution of the Territory Supreme Court, as a court which may make orders that may ground appeals to the Federal Court, is a related but separate question which may be involved in the jurisdiction of this Court to hear what is called an appeal from the Federal Court which, in turn, depends upon the validity of the order of the Territory court, which gave rise to the appeal to the Federal Court.

MR JACKSON: Your Honour, could I say this: if we were to succeed in the other proceedings, then the result would be, in our submission, that there would be no proceedings from which there will be any need to bring an appeal, and so these proceedings would, in effect, go away.

That is why, your Honours, I was going to say this a little later, that if the Court were against us in relation to the application for special leave then, no doubt, the Court would announce its view on that but we would ask that the Court not pronounce its order finally until after the other matter is determined. The reason why I would say that would be that it may be that the order of this Court refusing special leave might be considered as giving some effect to the judgment of the Full Court of the Federal Court which it might not otherwise have had. I do not know that it would, your Honours, but I just simply would wish to keep the position in reserve to avoid any possibility.

GUMMOW J: It is implicit in your submission that the matter that was picked up was this order which was effectively produced in the ACT Supreme Court.

MR JACKSON: Yes, yes, your Honour. This case assumes we lose the one before.

GUMMOW J: Yes.

KIRBY J: But can the order of the Federal Court, it being a court undoubtedly created by the Parliament, as it were, cure the steps that were anterior to it and provide an alternative foundation for the validity of the conviction of Mr Eastman?

MR JACKSON: Your Honour, if we were to succeed in the other matter, the formal result, subject to any other possible form of order, would be that the conviction was a conviction which was not validly entered and, that being so, it may well be no more than a matter of academic interest about what happened in the Full Court of the Federal Court, but it may well be a case where it may be appropriate for the Court to make some additional order in relation to the position of the Federal Court but, perhaps, not.

Now, your Honours, I was just getting a little ahead of myself. What I was seeking to say before was that in relation, first of all, to the nature of the matter, the nature of the attack on the decision below is such that it affects the very foundation of the trial. I referred your Honours to the references in paragraph 14 of our submissions.

The second thing I was going to say was that if one looks at the view which the Court has expressed on various occasions as to its functions, one of those view has been that one of the grounds for special leave is that there has been a miscarriage of justice or a failure to maintain procedural regularity, as it has been put on a large number of occasions, in the courts below.

Could I give your Honours a reference to that, Justice Dawson in Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at page 475, and his Honour there - I do not think it is on our list of cases, your Honours, but it is a passage which, I think, was adopted in a later case and perhaps I can give your Honours a reference to that a little later. But, your Honours, if one goes then to section 73 and assumes that appeal is concerned with the correctness of what took place below, where the complaint is that there has been a procedural irregularity of such a kind that the trial should not have been proceeded and that the point was not raised on appeal when it should have been, we would submit that does not give rise to any restriction upon the court receiving the evidence to show that such a miscarriage of justice, and again I use the term in the way indicated before, had occurred.

HAYNE J: Is there not, though, a further point which needs to be borne in mind in that connection, namely, that the point about which complaint is now made is not one restricted to the parties. That is to say, the trial court confronted with an issue of fitness to plead may, on one view of the authorities at least, be bound of its own motion to raise the question and that this is not simply a point inter partes.

MR JACKSON: Well, your Honour, what your Honour has put to me is a matter of some importance because it is analogous to the cases where, if one were to adopt, for example, the observations of your Honour Justice Callinan in the case to which I referred a moment ago, in Gipp, what one would see is that there are some things that a Court of Criminal Appeal, for example, is required itself to do or may be required itself to do.

Your Honours, if one looks at the statutory position provided for by the terms of section 428E, we would submit as a matter of interpretation of that statute, it is one where the issue where there can be a duty arising on the part of the court - duty arising in the court - to take the steps to consider whether the steps referred to in 428(1)(e) and following, should be taken. Your Honours, that must be so, we submit. If one looks at the very nature of the issue which is raised, where a person potentially not fit to plead is put on that person's trial

KIRBY J: I mean, in the long history of common law trials there must have been many cases where a prisoner was not represented, where questions would arise and the judge must have intervened. I mean, there must be common law principles about this.

HAYNE J: Presser is the most recent example, is it not, in 58 Victorian, where Mr Justice Smith raised the point despite the protests of Crown and accused and empanelled the jury accordingly.

MR JACKSON: Indeed, and your Honours will see, in the references we have give in paragraph 15 of our written submissions, that we refer to Presser but also to the observations of three members of the Court in Kesavarajah v The Queen 181 CLR 230 and, in particular, at page 244.

KIRBY J: The headnote in Presser seems to confine the judge's duty to before the trial begins.

MR JACKSON: Your Honour, it is a different statutory regime here, of course, but could I refer to Kesavarajah (1994) 181 CLR 230 at page 244 and your Honours will see, under the heading:

The operation of section 393 -

their Honours said:

It is well established that when, before a trial begins, the question arises as to the mental fitness of the accused to stand his or her trial, it is the court's duty to determine the accused's fitness to be tried notwithstanding that neither the prosecution nor the defence seeks such an inquiry.

And your Honours will see in the references in paragraph 21, including Presser. Now, that case of course is one where your Honours noted the difference between "fit to be tried" and "fit to plead" and your Honours will see that referred to at the bottom of page 234 note 15, but what we have sought to say earlier, and what is referred to in paragraph 18 of our submissions, is that one looks to see the meaning of "fit to plead" in the present case by reference to section 68(3).

So, your Honours, if I could just say in relation to the issue that was raised by your Honour Justice Hayne, yes it is; there is an obligation under the general law, we would submit, for the Court to raise the issue and a similar situation obtains if one looks at the statutory position under section 428E.

KIRBY J: But what happens if the judge thinks - and this is a very experienced criminal judge in criminal trials - that your client has no relevant deficit, but is simply manipulating the proceedings, intelligently, for his own advantage?

MR JACKSON: Well, the question, your Honour, is whether the judge was correct or not really, in that regard. I mean it is an issue that can be the subject of an appeal. If so, it is an issue that arises on appeal.

McHUGH J: Mr Jackson, a matter that troubles me is that the statements that you rely on, although they no doubt disclose a lot of hatred and a lot of contempt, I am not sure that people with some experience of the world have not seen similar statements made by individuals in a variety of contexts; does it necessarily indicate the person is unfit to plead because they make statements like this applicant has made?

MR JACKSON: Well, your Honour, it does not necessarily indicate they are unfit to plead, but, of course, that was not quite the question that had to be decided because the question was whether there was, to use the words of section 428E(1)(b) whether:

there is a question as to the person's fitness to plead - - -

McHUGH J: Yes.

MR JACKSON: Your Honour, it is a liberally framed provision.

HAYNE J: To cope with the fact that there are a lot of disruptive accused, on occasions.

MR JACKSON: Indeed, your Honour.

GLEESON CJ: And that sacking your trial lawyer is a well-recognised tactic adopted by some manipulative people?

MR JACKSON: Well, your Honour, it can be, but if I can just say this, in days gone by in many personal injuries cases of 30 or 40 years ago the choice was said to be, "Is the person telling the truth, have an injury, or is the person a malingerer?" and what was recognised, of course, not too long after that was that malingering was itself a psychiatric condition often, and so, too, can the matters to which your Honour has referred. It may be that people do sack their lawyers in circumstances where they seek to obtain some advantage, some manipulative advantage. Equally, however, to engage in a course of doing so may be the strongest evidence that there is something more wrong up top.

GLEESON CJ: How long do you expect to require to complete your argument, Mr Jackson?

MR JACKSON: Your Honour, I expect to be about 10 or 15 minutes. I was going to move immediately to Mickelberg v Regina (1989)

[1989] HCA 35; 167 CLR 259. The central passage, your Honours, in Mickelberg is to be found in the joint reasons of Justice Gaudron and Justice Toohey. It commences at page 297 where under the heading:

Receipt of Fresh Evidence by this Court - - -

McHUGH J: What is the page, again, Mr Jackson?

MR JACKSON: 297, your Honour. There is a reference to section 73 and then your Honours will see there is a distinction drawn between "original" and "appellate" jurisdiction and the discussion then goes through to page 298 and your Honour at the bottom of page 298 referred to the possibility that:

in conferring original jurisdiction on this Court, confers power to receive fresh evidence on the hearing of appeals in matters falling within that section.

But then went on to say:

However, a power in this Court to receive fresh evidence in an appeal from a State court exercising State judicial power and to determine the issues then raised by reference to that fresh evidence would be "equivalent to investing this Court with original jurisdiction [over matters falling within] State judicial power".

GAUDRON J: Can I just interrupt you here. We would only, on your submissions, get to Mickelberg, would we not, if the question to be in issue was whether or not the applicant was unfit to plead?

MR JACKSON: Yes.

GAUDRON J: We would never get there on the question of was there a question at the trial whether he was unfit to plead.

MR JACKSON: Your Honour, that is our submission.

GAUDRON J: Well, how would we ever get to the question whether or not he was fit to plead? How do you say we would get there? Do you just assume that that is what will be put against you, do you?

MR JACKSON: The latter, your Honour.

GAUDRON J: Yes.

MR JACKSON: Yes.

HAYNE J: Does your answer to Justice Gaudron mean that no question arises if, unknown to and unknowable by the trial court, this man was suffering from particular conditions that impeded his capacity to give instructions and the like?

MR JACKSON: That would follow, your Honour, yes.

CALLINAN J: Mr Jackson, what do we look at for her Honour Justice Gaudron's first proposition? What do we have to look at to decide that, which would be a proposition that would not require us, if it is accepted, to go to Mickelberg? What do you rely upon for that?

MR JACKSON: Your Honour, what I rely upon consists of two things, putting it broadly. Category one, if I can use that expression, would consist of the materials at the trial in that - - -

CALLINAN J: Right.

MR JACKSON: Could I indicate, essentially, what they are, your Honour.

CALLINAN J: Could I just say this: I think I understand generally what they are and they are the matters that were readily observable at the trial and which are apparent on the record of the trial. Is that correct?

MR JACKSON: Your Honour, that is part of the first category.

CALLINAN J: Let me just deal with them. The trial judge says that he regards them as all tactical, on one view of what the trial judge said anyway in his sentencing remarks at 434.

MR JACKSON: Yes.

CALLINAN J: You may need something more than that and you are about to tell me that there is more.

MR JACKSON: Yes I am, your Honour, the second category of the affidavit material, and the affidavit material goes to demonstrate a couple of things.

CALLINAN J: Well, why is that not fresh material?

MR JACKSON: It is fresh material, it is.

CALLINAN J: So that brings you squarely into Mickelberg territory, does it not?

MR JACKSON: Well, it depends what Mickelberg is deciding, your Honour. And if Mickelberg is deciding that no fresh evidence or no further evidence can be admitted in the Court on an appeal for any purpose, that would be the end of it, unless Mickelberg were overruled. If Mickelberg is deciding that no further evidence can be adduced in this Court on matters going to the substance of the trial - and by that I mean the - - -

CALLINAN J: But this is not the substance of the trial. This is all what was going on in the background, it was not going on in the court room. Counsel say that all sorts of things happened outside the court about which they formed a view.

MR JACKSON: Your Honour, that is what I am saying. If Mickelberg goes, as we would submit, to matters that go to the substance of the trial in terms of the matters that were in issue within a proper trial, then Mickelberg does not apply to this case.

CALLINAN J: I just find it very, very difficult to see how you can avoid, on any view of it, dealing with Mickelberg.

KIRBY J: Except that their Honours Justice Toohey and Justice Gaudron

referred to it in terms as being an appeal from a State court exercising State judicial power, and whether the limitation is confined - the holding is confined to that. It is a question of whether, necessary within it, is a view of the Constitution which extends to an appeal such as this.

MR JACKSON: Well, your Honour, it would be difficult for me to suggest that if the true position is that it is an appeal under section 73 from a Federal Court, that similar considerations would not apply. It would be difficult to see how one could make a distinction. So that, your Honours, one then - - -

GAUDRON J: But it was concerned with evidence relating to matters in issue in the trial, going to guilt or not guilty, whereas this is evidence with respect to whether there was a trial at all.

MR JACKSON: Indeed, your Honour, and could I just say that the four matters in relation to which further evidence was sought to be adduced are set out in Chief Justice Mason's reasons at the bottom of page 264 and going to page 265.

GLEESON CJ: Would Mickelberg prevent you leading evidence that somebody bribed a juror?

MR JACKSON: Well, your Honour, our submission is no, apart from the breadth of the statement - I am sorry, what I am seeking to say is that the answer is no but the reason why we would say it is no is that Mickelberg is, in reality, concerned with matters at the trial going to the matters of the substantial issues at the trial in the ordinary sense of the term. What I was going to say, your Honours, was that if one looks at the four matters that were referred to, one sees that the third one, in relation to which was sought to establish something, was that following his conviction Mickelberg gave instructions to his counsel to appeal to the Court of Criminal Appeal against his conviction for conspiracy and your Honours will see then, halfway down page 265, it was said:

The evidence in paragraph (3) is intended to provide an explanation for Peter Mickelberg's failure to appeal within time to the Court of Criminal Appeal against his conviction for conspiracy.

Now, your Honours, I do not think one can see, looking through the judgments in the case, that that piece of further evidence was evidence which was treated as inadmissible. The discussion on the further evidence seems to relate to the other three matters, which were all matters going to the substance of the trial.

Now, your Honours, if I could come back to what was put to me by your Honour the Chief Justice, we would submit the answer is yes, that the Mickelberg rule does not go further than to prohibit adducing evidence in this Court as to the matters in issue at the hearing.

GLEESON CJ: It would be odd to characterise evidence that a juror was corrupted as either fresh or new evidence.

MR JACKSON: Indeed, your Honour, that is so. It is the evidence that was not at the trial, I suppose, it is the negative way of putting it.

GLEESON CJ: It is evidence that does not touch an issue at the trial.

MR JACKSON: That is so, yes.

KIRBY J: But ordinarily that evidence would not be available during the course of the trial, whereas in this case the suggestion is that if only they could have got instructions, if only they could have got the permission of the Bar Council, if only they could have found an opportunity to see the judge in chambers as they asked, if only they had found some other way to get the matter up or just said it, it could have been presented at the trial. Whereas that is different from the position of - - -

MR JACKSON: It is temporally different, your Honour. But it is a matter substance, it is not, in our submission. Your Honour, no doubt the various distinctions can be drawn but if one endeavours to draw a broad distinction further between additional and new evidence in this Court - if I can use that expression - to use it with some neutrality, which goes to the matters which were in issue at the trial in terms of liability, then one can draw a distinction between that and between matters which are corrupted in one fashion or another, the judicial process.

McHUGH J: Yes, but I must say it does not seem to me to make any difference. I do not see why this Court, having regard to Mickelberg, would be able to hear evidence about the corrupt juror. If the banner was not raised in the State court system, it would be a matter to go back there and deal with it under the miscarriage of justice provisions or - I do not see, in principle, how you can distinguish between them, Mr Jackson. If it is not admissible as going to the merits of whether you are guilty or not, it does not seem to - and it is an appeal, we are not dealing with a quo warranto.

MR JACKSON: No. Well, your Honour, I appreciate that. I appreciate, in making the submissions also, that the ambit of the term "appeal" in section 73" is one which this Court will determine. But in determining it, what we would seek to submit is that first of all Mickelberg does not itself decide that issue and if one comes then to the question of the way in which that issue should be decided, what we would submit is that there is really every consideration which would militate in favour of the Court adopting the course which we have submitted. Your Honours, could I refer to, for example, paragraph 24 of our written - - -

CALLINAN J: Mr Jackson, before you do that, how do you distinguish between the example given by the Chief Justice and a situation in which extremely clear, indeed irrefutable, evidence becomes available that a critical witness perjured himself at the trial?

KIRBY J: And the appeal is still pending to this Court.

CALLINAN J: Yes.

MR JACKSON: Your Honour, the way in which one would draw a distinction would be to say - and, your Honour, these changing evidence cases are not unusual - but the way in which one would draw the distinction, I suppose, would be to say that very frequently further evidence cases are ones in which it is contended that a witness has not told the truth but it can now be proved that that is the fact. Now, your Honour, that is the most usual case, in a sense, or most common case of further evidence.

GUMMOW J: But is not the problem that if that was a civil trial the decision can be impeached by another action?

MR JACKSON: Yes, your Honour, one could - - -

GUMMOW J: Is there any equivalent to that in the criminal law? That seems to me to be the problem.

KIRBY J: Only the post-conviction inquiry that can be set up under another statute.

GUMMOW J: Other than the special statutory systems?

CALLINAN J: Which may be very imperfect or very inferior by comparison with an appeal.

MR JACKSON: Your Honour, a starting difference is that one, of course, subject to special leave, is a matter of right and the other is a matter of discretion.

CALLINAN J: But executive discretion in the first instance, is it not?

MR JACKSON: Yes, your Honour. Section 475, I think it is in the - - -

KIRBY J: I think it goes before a judge though; a judge decides whether the procedure will be implemented.

MR JACKSON: Well, your Honour, what happens is that the Executive may - this is section 475(1) - "direct a Magistrate" to hold an inquiry or a "Judge of the Supreme Court" may do it also, and then the inquiry is held by the Magistrate and the Magistrate transmits it to the Executive or, if the inquiry was directed by a Judge, to the Judge and then Executive or judge deals with it as is thought appropriate.

GLEESON CJ: But importance does attach to the time at which some of these issues are raised and the fallout from the Wood Royal Commission in New South Wales, for example, produced some successful appeals to the Court of Criminal Appeal, but, in other cases, when evidence of some police officers was found to be tainted, but there had been an unsuccessful criminal appeal in the meantime, the matter had to be dealt with under section 475.

MR JACKSON: Yes.

GUMMOW J: There is another question as to whether the decision of the Executive under section 475 is, in any way, justiciable; the reaction of the Executive to this petition.

KIRBY J: That was considered in the New South Wales Court of Appeal where there was a difference of opinion.

GUMMOW J: We are not talking about the Crown here.

KIRBY J: The majority view was that it is not.

GUMMOW J: We are not talking about the Crown here; we are talking about the Australian Capital Territory Executive.

MR JACKSON: Yes.

GUMMOW J: It is a collection of statutory office holders.

MR JACKSON: Yes, it is described in - I have forgotten exactly how it is described in the Australian Capital Territory (Self-Government) Act, your Honour, but it - - -

GUMMOW J: It is a collection of statutory office holders - - -

MR JACKSON: Yes.

GUMMOW J: They are not exercising any prerogative.

MR JACKSON: No, it is for pure statutory power, your Honour.

GUMMOW J: Yes.

KIRBY J: One advantage of Mickelberg is that it does defend the Court from the disinclination of people nowadays to accept the finality of orders and to keep coming along with new evidence to try to have cases redetermined on new bases.

MR JACKSON: Well, your Honour, in relation to that the street - if I may say so, with respect - is not altogether one way sometimes. There is some incentive to approach courts, maybe given by changes in judicial views and indications of judicial views. But having said that, your Honour, these things tend to go up and down and - - -

McHUGH J: Mainly up.

CALLINAN J: The fresh evidence test has a pretty high threshold anyway, Mr Jackson, has it not? It is not something that you would lightly make an application in respect of.

MR JACKSON: No, well, your Honour, the family law case that was last year of CAJ and so on, is a - - -

McHUGH J: CDJ shows that probably those old rules probably have little scope for an operation any more.

MR JACKSON: Well, your Honour, that is so. But whatever be the precise rule - and it is more discretionary, perhaps, than it was thought to be before - it still is a discretion that has to be overcome. And, your Honour, we sought to say in paragraph 25 of our submissions that, no doubt, further evidence would only be rarely received in fact. But that really goes to the manner of exercise of the power, not to its existence.

Your Honours, could I say in relation to our written submission, paragraph 24(b), I think it is a matter that I have not pursued.

We would also, your Honours - and I do not know that I can say really any more about them than is in paragraph 24 and 25 - we would also seek to say, your Honours, that if Mickelberg does apply to a case such as this, then it should be reconsidered to the extent that would permit evidence, not going to the substantive matters in the case, but otherwise to be received by the Court. Your Honour, those are the submissions - - -

McHUGH J: Before you sit down, could I just ask you about one matter, Mr Jackson? On one view, this appeal is brought under section 73, but do you argue that if the Federal Court was not a court exercising federal jurisdiction in this particular case, nevertheless, section 33 of the Federal Court Act gave you a right of appeal or do you accept that 33 is an exception or operates on section 73 of the Constitution?

MR JACKSON: Well, your Honour, I would have - and I would argue that section 33 is a provision which would give jurisdiction to this Court to entertain the appeal?

McHUGH J: Independently of section 73 of the Constitution?

MR JACKSON: Yes, it does involve squeezing the words a little, but in our submission - - -

GUMMOW J: On what head of power?

MR JACKSON: Your Honour, if that were the case, it may well have to be section 122.

GLEESON CJ: Yes, thank you Mr Jackson.

GAUDRON J: Do you say - if it is ultimately 122 jurisdiction, which comes all the way up here and which we are now exercising, then I take it you say Mickelberg says nothing about that, because section 73 says nothing about it. The power of the High Court under section 33 should be at least as extensive as that of the Federal Court under section 24, I suppose.

MR JACKSON: Your Honour, it would still seem to be a case under section 73.

GAUDRON J: But the question Justice McHugh puts to you presupposes that it is not, I think.

MR JACKSON: Yes.

GAUDRON J: That it is a case wholly under section 122. And as we sit here now we are exercising jurisdiction in a non-federal matter but a matter that comes ultimately from 122. So section 73 has no application.

MR JACKSON: On that assumption, yes, your Honour.

GAUDRON J: So do you then go the step further and say, well if that is the case, Mickelberg says nothing about that case.

MR JACKSON: Mickelberg does not touch that situation.

GAUDRON J: Yes.

MR JACKSON: But it leaves - what is left then in a rather undefined form is what is the nature of the appeal contemplated by section 33.

GAUDRON J: Well, you would say, would you, at least as extensive as that contemplated by section 24 in respect of which there can be new evidence.

MR JACKSON: Your Honour, it would seem unlikely, I suppose, in our submission, if one were giving an appeal to this Court - I am sorry, your Honour, there are two possibilities. I would like to be able to accept what your Honour puts to me but there is, perhaps, a difficulty in doing so and that is that if one is looking for an analogy then, perhaps, the closest analogy would have to be section 73. However, there is no express restriction on the appeal contemplated specifically by section 33.

HAYNE J: Apropos of that, do you seek to have us revisit Dignan, Davies & Cody, Ronald v Harper or any of those cases, or do you stop at Mickelberg?

MR JACKSON: Well, your Honour, I have to answer your Honour in two ways. In the first place, we would submit that your Honours do not need to go to the whole of Mickelberg, but by that I mean it is possible to treat Mickelberg as applying to cases of the kind to which I referred earlier where one is going to matters affecting the resolution of the case. If Mickelberg goes beyond that, we would invite your Honours to reconsider Mickelberg and we would invite your Honours to do so, if I can put it shortly, by saying that the approach taken by Justice Deane in that case is the one that better reflects the concept of appeal in section 73. I do not know that I can put it otherwise than I say, your Honour.

GAUDRON J: Your mid position is reconsider it only to the extent of matters that go to events that were not in issue at the trial.

MR JACKSON: Yes, your Honour. Your Honour, I said I would give one of your Honours a reference, I think it was your Honour Justice Gaudron, to Dr Milton's reference to diminished responsibility. It is in volume III of the application book, page 662 at, I think, line 5.

CALLINAN J: Mr Jackson, before you sit down I just want to ask you one question about what Chief Justice Mason said in Mickelberg at page 270 in the last paragraph commencing on that page:

There is force in the argument that, in the light of contemporary notions of justice, a grant of appellate jurisdiction.....should be understood as empowering the court, in its discretion, to receive further evidence with a view to determining whether the decision of the court below was erroneous -

Does that really state the position? When an appellate court receives fresh evidence, it does not decide that the decision below was erroneous, it simply decides that the decision below might be erroneous or that a different decision might be reached when the fresh evidence is received.

MR JACKSON: Yes, your Honour, that is the usual case, and - - -

CALLINAN J: Well, is there any other case? Do appellate courts ever decide the issue themselves? Is there a difference between the role of an appellate court in reaching a final determination on fresh evidence and the role of an appellate court in simply saying, "Well, if the fresh evidence is received there is a significant possibility that a different result would be reached"?

MR JACKSON: What I was going to say was what your Honour has put to me in the last thing that your Honour has said is the usual case and almost always is what occurs.

HAYNE J: Well, is that right? It is commonplace, is it not, for courts of criminal appeal to enter verdicts of acquittal as a result of fresh evidence, to conclusively determine the matter as an exercise of original jurisdiction. I have been party to several such decisions myself.

MR JACKSON: Well, your Honour, I am sorry. What I was going to say - - -

CALLINAN J: Well, is one appellate and one original, that is what I am really asking you?

McHUGH J: It is had been said that the nature of the appeal under the judicature system is partly appellate and partly original because the Court can re-evaluate the facts for itself.

GUMMOW J: Like a writ of error.

MR JACKSON: I am sorry, your Honour. May I say I am labouring under a number of questions, but might I say this. In the answer I was giving your Honour Justice Callinan I must say that I had thought your Honour was speaking to me about civil jurisdiction, about civil cases in the first place, and what I thought - what I was going to add to that was that occasionally one saw cases where the parties would agree or the court would decide to deal with the matter on the basis of the evidence below and the additional evidence, not very often - sometimes where it was all on paper, in effect.

GUMMOW J: It seems to me implicit in one construction of section 73 that the appeal that is being argued for is an appeal which has, at least, some component of a writ of error, which is a fresh proceeding. You may be right or wrong, but that really is what is being spoken about when we have fresh evidence as an original matter.

MR JACKSON: Yes.

GUMMOW J: That is the question.

MR JACKSON: Your Honour, certainly. The writ of error was original in that it was original jurisdiction, certainly, but I should say that it is interesting to note that in the reference that we have given to the New South Wales provision in our written submissions in connection with that, what one sees is that the statute of the time - and this is paragraph 24(e) described it as an appeal, under the heading "Appeal". Now, that is not binding, no doubt, in terms of constitutional meanings and it is difficult to see why the concept would not include some elements of original jurisdiction in that sense.

GLEESON CJ: Yes, thank you. Yes, Mr Game.

MR GAME: Could I start by saying a word about section 475. Section 5 of the Crimes Act can be engaged in a curial sense without any application being made to the executive, so that Mr Eastman could put on a section 475 application which would require determination by a judge. In addition, we would submit that the principles in Toohey; Ex parte Land Council would make reviewable a decision by the executive in respect of his application were it made to the executive.

GAUDRON J: Well, that is a big proposition. I say that in this sense: one is going to have to draw a distinction between that and the normal prosecutorial area, if it is to be categorised as a matter that is susceptible of review by courts.

MR GAME: But this is not a matter that concerns any prosecutorial discretion; it is not a matter addressed to the prosecutor in any relevant sense.

GAUDRON J: No, but it is really a question - let us not go into it. You do not have time to pursue that. That proposition cannot be important to the outcome of the case.

KIRBY J: Mr Game, the fact that Mr Eastman has some other remedies is not really relevant to answering what his remedies are in his appeal.

MR GAME: Your Honour, we submit that it is relevant because what is said to be the grave consequences that flow do not flow in truth, because he can make an application to the Executive or he can make an application to the Supreme Court.

GLEESON CJ: Mr Game, do you expect to be able to finish your argument within an hour?

MR GAME: I would expect so, your Honour.

GLEESON CJ: And the Solicitors, I take it, would not take more than 15 minutes each? Very well then, we will adjourn until 2.00 p.m.

AT 12.54 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.07 PM:

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases. With respect to the question of jurisdiction, we have prepared some short written submissions which in substance agree with, as I understand it, the submissions put by Mr Jackson. Could I hand those to the Court.

GLEESON CJ: Thank you.

GAUDRON J: Does your DPP Act allow you to bring proceedings in the name of the Queen? I ask that because when we looked at the Commonwealth DPP Act the other day, it emerged quite clearly that it was supposed to bring proceedings in the name of the office.

MR GAME: I am going to have to ask someone, your Honour. Could you just give me one moment.

GAUDRON J: Yes, thank you.

MR GAME: We are told yes, but if there is any qualification on that, I will - - -

GAUDRON J: Thank you, it does, it specifically does.

MR GAME: I have just been told that, but we are just checking, sorry. I have been told that by the Director, who is in Court so - - -

GAUDRON J: He should know.

MR GAME: He should know, he is instructing me. That is all I want to say about jurisdiction. Those are, as I understand it, the - - -

GUMMOW J: I am not sure it is a complete statement, actually. You say it does not matter for the purposes of section 73 whether the Federal Court was exercising federal jurisdiction or territory jurisdiction. There is an assumption in that that so-called territory jurisdiction can be imposed upon the Federal Court other than by a law under section 77 of the Constitution.

MR GAME: Yes.

GUMMOW J: I see.

MR GAME: Which would be section 122.

GUMMOW J: Yes, I realise that. That is a - - -

GAUDRON J: That seems to have been the assumption in GPAO, though, does it not?

MR GAME: Yes, but we say that it makes no difference in terms of where the ultimate jurisdiction resides, which must be section 73.

GUMMOW J: The question on that is - there is a question as to - when section 73 says "Federal Court", it means the Federal Court set up by Chapter III receiving jurisdiction under 77(i), that is what I am putting to you, with respect to matters in 75 and 76. If your submission is that one has laws arising under 76(ii), I understand it.

MR GAME: Well it is either that or section 122 of the Constitution.

GUMMOW J: But I am not going to write a judgment saying it is either one or the other; I am going to write a judgment saying it is X or Y.

GAUDRON J: And if it is section 122, there really may be different considerations from those which arise under section 77, and, indeed, Mickelberg might have different application or might not apply at all, if it is section 122.

GUMMOW J: That is right; that is why this is not an academic point, it is a threshold point, if you are going to get into Mickelberg.

MR GAME: Your Honour, the submission we would then make is the submission that appears in paragraph 3, which is that the jurisdiction to be exercised would be that exercised in the ordinary and usual way in which the Court is accustomed to exercise powers of an analogous nature, and we would rely upon the principles enunciated in Parkin and Cowper v James. We would submit that that takes us back to the same position.

If I could take the Court to section 428E of the Crimes Act. According to that provision, which the Court has already been taken to this morning, if the issue is raised by a party or the court and the court is satisfied that a question arises, then certain consequences flow. In cases such as Kasavarajah, the issue was raised by the parties and the Court addressed it in a particular way, which was found to be erroneous. In a case such as Presser, the Court itself raised the issue; both of these are contemplated by this provision and we certainly do not suggest that the issue could not arise during the course of the trial. But we are confronted with the situation in which the issue was neither raised by any party nor was it raised by the court.

KIRBY J: Yes, but Mr Game, it was raised by counsel with counsel for the Crown, and counsel for the Crown declined to go into chambers to allow the matter and for the judge to work out a way of handling the matter. That seems to be completely alien to my notion, old fashioned though it may be, about the role of the Crown Prosecutor.

MR GAME: But, your Honour, there were particular difficulties in this case with doing anything in chambers. Two judges had been disqualified already.

KIRBY J: But some way ought to have been found to allow the anxieties which those representing the accused had to raise the matter before the judge so that a ruling could be made.

MR GAME: But, your Honour, that assumes that the Crown took a particular view - - -

KIRBY J: Yes, but that is not for the Crown to ultimately determine. It is for the Court. The Crown foreclosed the possibility of having a determination by the judge of the question according to law.

MR GAME: No, your Honour. We are now in a situation where there was a trial. The trial went for five and a half months. Mr Eastman was represented for four and a half months by Mr Terracini. It is quite clear that he did give Mr Terracini instructions of a very explicit kind. He gave evidence over some 11 days in which he presented very detailed - - -

KIRBY J: You are arguing that there is no merit in the point and that might be right, but the issue was never determined by the person who, under this Act and under the common law, has the responsibility, the trial judge.

MR GAME: Yes, but my preliminary point is that this is quite different from the situation such as Kesavarajah. The question for an appeal court, however construed, and for the Federal Court would have been whether or not there has been a miscarriage of justice.

GAUDRON J: No. It might also be whether there was a fundamental failure in the trial process.

MR GAME: Your Honour, it depends how one puts that. We would certainly not agree that the appropriate to address that question is whether or not there was a question as to fitness to plead. If the question whether or not there was a trial at all is, in effect, the question posed, then one would have to show that the accused himself was unfit to plead.

If one applies fresh evidence principles or those accepted in Mickelberg itself, one would have to show and apply by analogy the principles that flow down from cases such as Mraz.

GAUDRON J: That is what you would have to do if you say "miscarriage of justice". I do not think it is what was done in Kesavarajah and if you go back to Glennon, it was allowed in Glennon that if there is a fundamental failure in the trial process, that is the beginning and of it; you do not apply Mraz.

MR GAME: But, your Honour, Kesavarajah comes in under a different head in the Criminal Appeal Act. It comes in under error of law. That is a completely different head under which one succeeds in a criminal appeal and we assume, rightly or wrongly, that Chamberlain [No 2] is authority for the proposition that the principles relating to Criminal Appeal Acts were intended to apply in relation to appeals under section 24 of the Federal Court Act.

GAUDRON J: Yes, but those criminal appeal provisions allow, according to Glennon, that you do not go to the Mraz principle if there has been a fundamental failure in the trial process.

MR GAME: Well, your Honour, it depends what one means by a fundamental failure of the trial process. There is no case that suggests that if a question arises retrospectively as to the fitness of an accused at trial the conclusion from that is that there has been no trial, and we would submit that it is completely contrary to the principles which were applied in cases such as Mickelberg itself. This is not an exercise that is conducted in a vacuum. This man had a trial. One is entitled to inquire - for example, let me take you to section - one just pursues it and sees what happens. Let us say the matter was - we know he had a trial, we know the case did not go to the tribunal but let us have a look at the things that the tribunal would have inquired about. They would have asked: could he follow in general terms the course of the proceedings? Well, it is perfectly plain that he could.

Could he understand the effect of the evidence? It is perfectly plain that he could. Could he make a defence? He did. It was an extraordinarily complex and detailed defence that took many twists and turns. Was he able to decide on what defence he would rely on? He did. Was he able to make his - - -

KIRBY J: Are you not giving a little bit of medical evidence now from the Bar table? I mean, these would ordinarily, or at least in some cases, be matters upon which, the issue having been raised, there would be an expert opinion to assist the court because courts may not be the best people to determine issues of people's mental capacity or not. I mean, there have been advances, you know, this century in understanding of psychology. You say all these things, that he can do all these things, but the point is because of the way the matter developed the issue was never tended for decision at the trial and we have now to see what the consequence of that is.

MR GAME: Yes, but, your Honour, my whole point is you do not conduct that particular exercise by ignoring what happened afterwards. There is only one way to conduct that exercise and that is by examining what actually happened. For example, if I could just trouble you with really the one single one that is advanced, which is giving instructions to his or her legal practitioner. Well, that is Mr Terracini, he was there for four and a half months. I could take your Honours, and if required to do so I will, where Mr Terracini turned to a particular topic of evidence and said, "Well, let us tell us about the Bradshaw gun. Now, tell us about the Leneghan gun?", all of which was at the beginning of the trial Mr Eastman denied.

Now, he was giving instructions of a very complex kind. To produce some affidavits from some lawyers who had no more than a days involvement in the case in many of these instances, who really had a momentary and passing involvement at the commencement of the trial, and then to couple that with a medical report which is produced from a single examination on 8 April 1988, and then to say a question arises in relation to this man's fitness to plead at trial, is completely unreal.

KIRBY J: There is no affidavit from Mr Terracini?

MR GAME: There is no affidavit from Mr Terracini, nor does the affidavit from Mr Odgers, who appeared for him on the appeal which went for two weeks, is there any affidavit saying he had any trouble taking instructions. There is no suggestion in the material that Mr Eastman was unable to raise this matter on appeal by reason of any unfitness to plead. There is no affidavit in this Court from Mr Eastman who now asserts - it is now said that he is fit to give instructions - as to what his account of all of this is.

The single thing that could possibly be complained about is the inability to cross-examine witnesses. As I have set out in the written submissions, the Crown recalled witnesses as required and they recalled them again and then Mr Eastman gave evidence and departed from some of the matters which had not been put. The Crown applied to recall witnesses and was refused, and in the case of one of them, Mr Russo, after Mr Terracini had addressed the jury - Mr Terracini was sacked. Mr Eastman then made an extremely articulate and gifted address to the jury and then he said to the jury, "And by the way, they didn't recall Mr Russo". I do not want to trouble the Court with taking your Honours through all of the pages but I have set out the pages in the written submissions. It can be done.

GLEESON CJ: One of the most striking features of the affidavit of Dr White is that, so far as I can see, he does not appear to have read, or certainly does not comment on, the evidence or the record of the address of the accused.

MR GAME: He obviously does not understand what happened at the trial. He says that talking about strands was evidence of disordered thought. He says that the account that he gave in relation to the evidence concerning the powder in the boot of the car was evidence of abnormal thought processes. On the contrary, Mr Eastman was in an extremely tight spot in relation to that powder and he ended up giving an explanation to the jury which was that he had picked up a hitchhiker on the side of the road who had a gun.

Then, if one couples this with what actually happened in the Full Federal Court - let me say, the Crown produced these reports from Dr Milton on no later than 17 August 1995, more than two months before the end of the trial. The defence wanted to get away from those medical reports at a million miles an hour because, if you couple those reports with the other evidence in the case, it was absolutely devastating for Mr Eastman. Mr Eastman conducted grounds of appeal in the Federal Court concerning the Milton material basically seeking to show that he was harassed and that there was an abuse of process, but he repudiated the reports. This is hardly consistent with turning around and inviting the court to think that he was unfit to plead.

Mr Eastman in the Full Federal Court, after the appeal had been going for eight days, sacked his lawyers and then argued - Mr Odgers had put on grounds of appeal and then only addressed on some of them or put submissions on some of them, Mr Odgers and Mr Jones. Mr Eastman then addressed the court for two more days on the grounds of appeal which had been abandoned by Mr Odgers.

Mr Eastman during the course of this trial went to the Full Federal Court and addressed them on a stay application, a bias application and an abuse of process application. Not only that, he did not like the result of that and he took a special leave application which came before Justice Brennan and, if you read the transcript of that application, it is as articulate as is put by many an advocate in this Court. He went through all the principles. He cited all the cases.

KIRBY J: That may not necessarily be inconsistent with delusional behaviour and the question is: ought that issue to have been tendered? Did this trial miscarry because the issue was not tendered for proper resolution?

MR GAME: No, your Honour, we would submit that is not the question. The question is whether or not there has been a miscarriage of justice and that question is addressed by looking at what actually happened in the trial. It is a bit like saying on a separate trial application that when you review it on appeal you review the decision that is initially made in relation to the separate trial application. That is not the test. Criminal appeals, all appeals, are conducted on that very assumption that you do not conduct those sorts of inquiries in that particular way.

McHUGH J: I think it was in H v G I said that the question as to whether an adjournment was refused, the real issue was whether there was a miscarriage of justice in the proceedings.

MR GAME: So you cannot go back and say: should on 11 May 1995 Mr Adams have walked into Justice Carruthers' chambers and told him that he had received a letter from a former legal representative saying that Mr Eastman was unfit to plead? Now, why would not Justice Carruthers conclude and why should one ignore his conclusion that everything that Mr Eastman did in this respect was tactical?

McHUGH J: If you read Mr Eastman's application for adjournments they are very articulate, memory, and all the facts, relevant facts, well-organised submissions.

MR GAME: Mr Eastman raised incidentally the Acting Judge point in the Federal Court; Mr Eastman was the person who thought up the single legal issue that had any substance in the Full Federal Court, which was the hearsay use of evidence coming in from a Mr Pattenden about a statement that Mr Klarenbeek was alleged to have made that he did not identify Mr Eastman. Now, to untangle that, for the prosecution at appeal, was a complex exercise, but it involved going back and seeing what had happened, and it is clear from the judgment of the Full Federal Court that the prosecution had offered to the defence to put in all the material from Klarenbeek, but there were good bits and bad bits, and overall it was clear that it was worse for the defence to have it in. Mr Terracini was quite content to cross-examine on that material, on what was said to be a Subramaniam basis, but clearly to show that the police investigation was conducted in a particular way.

The Full Federal Court in the result said that there was nothing in that and he should not have been allowed to cross-examine at all, and, as soon as Mr Terracini had been sacked, Mr Eastman stood up in his address and said to the jury, "Members of the jury, the most important piece of evidence in this whole case, is the evidence that comes from Mr Klarenbeek." And the judge said, "Well there is no evidence from Mr Klarenbeek." He said, "Well what Mr Klarenbeek said to Mr Pattenden." But it is quite clear that Mr Eastman knew all about what the Klarenbeek material meant, he knew all about the basis upon which it went in.

As to cross-examining witnesses, and witnesses being recalled, there were several grounds of appeal that actually addressed this issue in the Full Federal Court and how it was dealt with were grounds of appeal. The Crown ultimately made a Browne v Dunne submission in relation to two witnesses, but that was offered up by defence counsel as, in effect, an excuse for the defence counsel to raise the issue in Mr Eastman's own evidence. But there is no suggestion Mr Eastman did not know what he was doing, because, as I said, Mr Eastman than addressed the jury on the basis that the Crown had not recalled Mr Russo.

GAUDRON J: I wonder if you are not using up your time without addressing the issues that we said we were going to deal with today.

MR GAME: But, your Honour, I may be using up my time, but the fact is that if you do not understand the substance of what happened in this trial in some way, and 20 or 30 minutes would give you a minuscule picture of what - - -

KIRBY J: Yes, but Mr Game, I thought the Court had separated the question of whether, assuming that it can be made out that there is the evidence, can we constitutionally receive it, and therefore you have got to make against yourself, it seems to me, the assumption that you find very uncongenial, and for very powerful reasons that you put, the assumption that there is evidence tendered, as it has been, and we have reserved on whether we will receive it.

MR GAME: Quite, your Honour, but there is an assumption behind all this which is put by my friends which is that his evidence - - -

KIRBY J: You want to say it is futile. It is futile because it leads nowhere and has no merit whatever, and therefore you do not have to and should not deal with the constitutional question.

MR GAME: Yes, we say, on a cursory - I say cursory, but on a simple analysis of this material - and I have sought to do it in the written submissions - it can be demonstrated that this material does not go anywhere. But as I said, there is a question of principle behind this because we join issue with the approach that your Honour Justice Gaudron puts as the appropriate approach. We submit that the appropriate approach is the approach that I have put consistent with the authorities to which I have referred and the authorities relating to criminal appeals and establishing miscarriages of justice.

GAUDRON J: But what do you say about the notion of fundamental error in the trial process that has been acknowledged in this Court, starting with Glennon?

MR GAME: Your Honour, it is quite clear from Justice Mason's judgment or the joint judgment in Justice Mason's judgment that whether or not there is a fundamental defect is something that is an entirely - I do not mean this in a pejorative way - but it is an entirely relative exercise in the sense that you have to judge it against the events which occur, that is to say - could I give your Honour an example: the failure to direct on the elements of an offence might not be a fundamental defect. In fact, in this Court in Holland it was held not to be a fundamental defect. You have to look at what happened in the case to ascertain whether or not there is a fundamental defect.

Now, to turn up with affidavits that make the particular complaints that are made in this case is a long way from suggesting that there is a fundamental defect. And that is why I said if you wanted to go that far, one would have to show that he was unfit to plead. One would not show there was a fundamental defect by showing there was a question. One could get a medical report, presumably, in any number of cases to suggest that there was a question. In every murder trial involving diminished responsibility, accused people are giving instructions in circumstances where one sits on the threshold of whether or not the person can give instructions or not; and that does not suggest that the trial process has not taken place or that it has not been a trial according to law. It happens every day of the week in the criminal courts.

HAYNE J: Even more acute I would have thought with M'Naghten insanity.

MR GAME: Yes. It could not be the case that these type of assertions demonstrate that kind of fundamental defect. In Wilde itself, it was held that there should have been separate trials ordered, but that was not a fundamental defect even although whole bodies of inadmissible evidence came in from what should have been other trials. It was not a fundamental defect because the case against Mr Wilde was devastating, whichever way one looked at it.

Now, that is as fundamental - and if I could say this your Honour: the exception that is put to Mickelberg is said to be something that occurs outside the trial process. But it is only something outside the trial process because it is from advocates who did not have anything to do with the trial, in effect. Because it is intended to show that he was unable to give instructions at his trial.

HAYNE J: But it is outside the trial process in the sense that it does not concern the issues joined between prosecution and defence.

MR GAME: But your Honour, nor does bias of the trial judge or flowers given to the jury or bribing a juror. Really, in our submission, the exception when stated is an exception which is that the trial process is broken down because the adversarial process has failed in some latent way. That is the exception. That picks up perjured evidence, cases such as that. Now, the 1910 case, Ronald v Harper, that is a case of perjured evidence. Mickelberg itself is a case of evidence which must have been falsified. The report says that the evidence was wrong. But it must have been falsified evidence.

This is material that is outside the ability of the parties to manage it. Incapacity of a trial judge is the same and the same principles apply. The category of exceptions could not be restricted in the way in which is suggested. Your Honour has put to me that it is outside the trial process in the sense that it does not touch on the issues between the parties but it relates to the trial process in a very direct way because the question is whether or not he was able to give instructions to lawyers. The question is whether or not the trial miscarried because he was prevented from putting his case or - - -

HAYNE J: No, the question is whether he should have stood his trial.

MR GAME: Whether he should have stood his trial, but the question now is whether or not - yes, but in the light of the knowledge of what happened at his trial, that is to say, one inquires whether or not he was capable of giving instructions to his counsel, which is why at the beginning I said it is not a retrospective exercise. Now, we submit that Mickelberg itself is not restricted in any narrow sense. If one looks at the judgement of Chief Justice Mason at page 267 - this has all been gone through before, but:

In deciding whether there was error, the appellate court looks to the materials which were before the court below.

That is because it is a true exercise of appellate jurisdiction. The Court cannot have regard to other materials which were not before the court below because that is an exercise of original jurisdiction and that is the very proposition which is rejected in Mickelberg.

GAUDRON J: Can I interrupt you and ask this: assume against yourself for the moment that the ACT court was a Territory court but it was exercising federal jurisdiction. Could prohibition go to these various people to prevent their acting on the conviction or the warrant on the basis that there was no trial at all, because it seems to me that there may - - -

MR GAME: Does your Honour assume that there is a valid judgment or not, because - - -

GAUDRON J: No - well, not necessarily. That really is the point. When you talk about Mickelberg in this situation I am wondering if it is really valid to say, "Oh, well, Mickelberg precludes the issue because 75(v) writs will go to federal courts exercising federal jurisdiction if there is a jurisdictional error". On one view it may be that - on one view, do not worry about whether that is or is not - there was a jurisdictional error in failure to adopt the processes involved in 480E of the Crimes Act. My question is: where you have a federal court or a territory court exercising federal jurisdiction, may not Mickelberg be a side issue? May the issue not be whether, assuming some jurisdictional error, prohibition will go and perhaps certiorari under 75(v)?

MR GAME: Well, if it was a Federal Court, I think prohibition would go.

GAUDRON J: Yes, what about a territory court exercising federal jurisdiction?

MR GAME: No, your Honour.

GUMMOW J: Why not?

MR GAME: Because the principle - - -

GUMMOW J: Are they not officers of the Commonwealth?

MR GAME: It would be in the same position as a superior court, I think.

KIRBY J: No, it is not that, it is that they are not officers of the Commonwealth

MR GAME: It is because, yes, they are not officers of the Commonwealth.

GUMMOW J: Really? Has that ever been decided?

McHUGH J: Well, it was in Murray's Case. Did not the Court decide

2-2? A point came up, I think, in Murray's Case in this Court back in - - -

MR GAME: Murray v The Queen, yes.

McHUGH J: No, I do not think it was - it was Murray's Case but I cannot remember what the name of the other party is.

MR GAME: Mr Gageler will find it. A number of propositions are put by our friends to suggest that Mickelberg should not apply - if I could just say, although it has been said again, that this is a line of authorities that goes back to 1910 of the latest in Ronald v Harper, it has been followed and applied in many cases including Lloyd v Wallach, Victorian Stevedoring. It is not a principle which has been seen to occasion injustice. A number of propositions are put by our friends. It is suggested that in line with the case of Tucker that the principles are different when a question of insanity arises but Tucker is a case under the Criminal Appeal Act.

In fact, at the time of Federation there were only two forms of review in relation to felonies and they were reserved questions of - Crown cases reserved questions or writs of error, neither of which would run in these circumstances. We set out in paragraphs 12 and 13 that give the relevant authorities and references for those propositions.

As to supervening facts relied on by our friends, Chief Justice Mason in Mickelberg indicated that the House of Lords authorities were an unreliable guide but in any case the supervening facts identified there were of a very limited kind. So too, the supervening facts identified in Justice Evatt's judgment in Victorian Stevedoring.

The Scott Fell suggestion suggested by our friends is an exception which in truth does not exist because, as Chief Justice Mason indicated, it is subject itself to the principles in Ronald v Harper which was another judgment of Chief Justice Griffiths. Were one, in effect, to embrace that, then the whole principle would fall away.

KIRBY J: I think, just as with the word "jury" in section 80, which no longer is taken and is not read according to its understanding in 1901, why would we not, after a century of appeals in which it is not at all uncommon throughout this country for the prevention of injustice, to admit in exceptional cases evidence - why would we not now read "appeal" in the Constitution by that understanding of the meaning of it today?

MR GAME: But, your Honour, I think I would have to part company in terms of what is meant by "meaning" because the meaning of the provision cannot change one's understanding about it.

KIRBY J: But in 1901 they would have said the meaning of the word "jury" is all male and property qualification. That is the meaning of a jury, "gentlemen of the jury". That ran until 1960.

MR GAME: That depends, your Honour. The meaning of a jury is a substantive thing.

KIRBY J: Well, why is not "appeal"?

MR GAME: It is those people who determine whether or not a person is guilty of an offence.

KIRBY J: But that is a much more important change. This is a change at the margin. This is looking at as Justice McHugh said in McGinty as late 20th century people saying, "What does an appeal mean?"

MR GAME: But having 12 men on a jury is not integral to something being a jury. Locking up a jury until they reach a verdict is not integral to a jury.

KIRBY J: Well, we think that now but back in 1901 they would have thought that a jury is an all-male affair of gentlemen with property qualifications. It just seems to me there has to be a common approach to the construction of the Constitution and to go back to see what "appeal" meant in some places, though not the Privy Council, at 1901 is a far too narrow approach to take to the meaning of the Constitution. That is originalism.

MR GAME: Your Honour, in a sense we were meeting an argument put against us in respect of sections 7 and 8 of the Judicial Committee Act. In Mickelberg itself, Chief Justice Mason referred to this particular question. At page 270, last paragraph, he addressed that particular argument - that paragraph running to the end of the first long paragraph on the following page.

KIRBY J: But this is all going back to 1901 to see what "appeal" meant then. What I am saying is that Justice McHugh in McGinty said what I believe to be absolutely correct. We read the Constitution with the eyes of late 20th century Australians.

MR GAME: Yes, but an appeal, an exercise of appellate jurisdiction absent a power to receive fresh evidence, is - - -

KIRBY J: But every Court of Criminal Appeal receives, in exceptional circumstances, fresh evidence.

MR GAME: That is because they have section 12 in the New South Wales Act. There is a section 27 in the Federal Court Act, the power to receive fresh evidence.

KIRBY J: But after a century of doing it? If you went out there on the street and asked people what does "appeal" mean, you cannot tell me that they would say that if you have got evidence concerning a juror who has been corrupted or absolutely fresh evidence which will knock out the case, that that is not within the ambit of appeal. Nowadays "appeal" has a broader meaning than it had in 1901, just as "jury" has a broader meaning.

MR GAME: Well, your Honour, I do not wish to broaden it, but if one applied that sort of reasoning then one might wonder why a case such as Grierson should hold, in this Court, yet Grierson was recently reaffirmed in Postiglione. One might say, why could one not go back to the Federal Court and say, I have got some evidence that that witness was perjured, because there is a principle of finality. So, too, in relation to the nature of appellate jurisdiction. As we understand it, and as the cases appear to say, a true appellate jurisdiction, absent a specific statutory power to receive fresh evidence, has always been accepted as being an exercise of appellate jurisdiction strictu sensu and one will not find a case that disputes that, in my submission.

KIRBY J: But if this is an appeal from the Territory, then it is called appeal, but it is not mentioned in section 73, so it is original jurisdiction.

MR GAME: Well that depends on which particular line on the fork one takes, but, in our submission, for the reasons we have given in the short submissions handed to your Honours earlier today, one arrives at the same place, whether it be via section 73 or via an analogous jurisdiction principle.

McHUGH J: Mr Game, in The King v Murray and Cormie [1916] HCA 58; 22 CLR 437, according to the headnote, four Justices of this Court held that:

A judge of an inferior Court of a State invested with, and purporting to exercise, federal jurisdiction is not an "officer of the Commonwealth" within the meaning -

GUMMOW J: Yes, but that was a State court, that is the problem; this is a Territory court. No case dealing with Territory court saying they are not 75(v) officers, as I understand it.

MR GAME: I have just been referred to a footnote about the submissions in the other case and footnote 23 that Murray was applied in Slater v Miles (1998) 1370 FCA, Justice Finn - that is footnote 23 from our other submissions. I did not mean to turn this into an advocates' outing, but the purpose of saying what I said before was to really give the Court a picture of what is involved in this exercise, to give some perspective of what it is that one is actually talking about, but, as I said, there are important principles that lie behind that particular exercise.

The balance of the matters are addressed in our written submissions and I would be grateful if the Court would take those as having been addressed.

GLEESON CJ: Thank you, Mr Game. Yes, Mr Solicitor.

MR BENNETT: First may I adopt what appears in the respondent's submissions on jurisdiction, just handed to the Court.

GUMMOW J: First, how are you here? Seeking leave?

MR BENNETT: No, your Honour; under - - -

GUMMOW J: Not in exercise of section 78A, surely; there is no matter yet, this is a leave application.

McHUGH J: No proceeding before the Court, is there?

MR BENNETT: I am sorry. In so far as it is a leave application I do need to seek leave, but I seek leave on the basis that the issue being decided, and apparently being decided on a final basis in the leave application, is a major constitutional issue.

GUMMOW J: I understand that.

MR BENNETT: Yes. No, I do need leave for that reason, I am indebted to your Honour. The only point I wish to make in addition to what has been said about jurisdiction, and the matter arising under section 73, is that if your Honours go to section 73(ii) of the Constitution, it refers to:

appeals from all judgments, decrees, orders, and sentences -

(ii) Of any other federal court, or court exercising federal jurisdiction;

Now if it only applied to a federal court exercising federal jurisdiction, two things would have followed: first the words "of any other federal court" would have been otiose, because it would have been picked up by "court exercising federal jurisdiction"; and secondly, the sentence would have read, at worst, assuming there was to be a tautology in it, "any other federal court or other court exercising federal jurisdiction".

McHUGH J: Perhaps, contrary to what Justice Callinan and I said in GPAO, 73(ii) assumes that any decision of a Federal Court is always made in exercise of federal jurisdiction.

MR BENNETT: Your Honour, if that were so, I repeat, why would one need to refer to a Federal Court and why would one word it that way? That is contrary to the way the section reads naturally.

McHUGH J: What about the comma?

MR BENNETT: Yes:

Of any other federal court, or court exercising federal jurisdiction -

The comma supports it. It says that they are separate concepts and that must mean the Federal Court, whether or not exercising federal jurisdiction.

GUMMOW J: The "court exercising federal jurisdiction" could include, I suppose, inferior courts of States.

McHUGH J: Magistrates' Courts.

MR BENNETT: It could, of course. But "court exercising federal jurisdiction" would pick up Federal Courts exercising federal jurisdiction.

KIRBY J: No, but out of the dignity of a Federal Court it is given specific mention because the structure of the Constitution talks about this Court and the Parliament having the right to create Federal Courts and then there is just the special mention of Federal Courts and in which event, that is it. You have a right of appeal.

MR BENNETT: Your Honour, if Federal Courts were mentioned purely for that reason, it would have said "of any other federal court or other court exercising federal jurisdiction". But the language, the separation of - - -

McHUGH J: If you look in the second line, it is:

the Supreme Court of any State, or of any other court -

So "other" being before "federal" rather than before - - -

KIRBY J: I think the answer is that it is talking about appeals from Federal Courts of their dignity of State courts, District Courts, Magistrates' Courts exercising Federal Courts because they have, as it were, entered the family. And then the Supreme Court of a State, they are a little bit down the track, and other courts of the State.

GUMMOW J: The other court is that strange court in South Australia, is it not?

McHUGH J: Yes.

KIRBY J: Are these just State courts?

McHUGH J: No, there is a special court.

GAUDRON J: An appellate court, constituted by the executive.

McHUGH J: By the executive. You could go to the Privy Council from there.

GUMMOW J: That is what Quick and Garran says anyway.

KIRBY J: Federal Courts, any court of the State exercising federal jurisdiction, then the State courts.

MR BENNETT: Yes, but one still has the grammatical problem, even if that is the structure. Also, one wonders in that case also about the use of the comma in the first line and the semicolon in the second, to the extent that one can look at punctuation in construing the Constitution, and I know there is a controversy about that. But at the end of the day reading the section, it does not read naturally to read that as a Federal Court provided that it is exercising federal jurisdiction, and that is contrary to the structure of the sentence for the two reasons I have given.

KIRBY J: Would you remind me of what the relevance of that is here?

MR BENNETT: The relevance here, your Honour, is that if this appeal is under section 73, then it squarely involves the question about appeal and Mickelberg.

GUMMOW J: Do you say the Federal Court could be given by the Parliament jurisdiction to hear an appeal from a State inferior court and that, that being so, 73 would then apply?

MR BENNETT: It would have to be - - -

GUMMOW J: In other words, what I am asking you is what other than 77(i) provides for the definition of a Federal Court permissibly with Chapter III?

MR BENNETT: To answer your Honour's first question first, the answer would have to be no because the only ways in which the jurisdiction can be given to the Federal Court are either under section 122 or under section 77, and jurisdiction to hear an appeal on a State matter from a State court would not come under - - -

McHUGH J: What about by the States with the consent of the Commonwealth?

MR BENNETT: Your Honour is asking me questions about another area which it would be a breach of natural justice for me to answer in the absence of my opponents in the McNally Case, your Honour.

GUMMOW J: The answer is Collins v Charles Marshall says no.

MR BENNETT: Yes, well, that is - - -

GUMMOW J: But it says no, having given a particular structure to section 73, I think.

MR BENNETT: But, your Honour, we submit that the structure that is given does not involve the proposition that "Federal Court" in 73 is confined to Federal Court exercising federal jurisdiction, and the - - -

GUMMOW J: Well, that is not so.

MR BENNETT: Your Honours, for the reasons given by my learned friend in the written submission and verbally it may not ultimately matter in this case, but it makes the proposition much easier to argue in relation to Mickelberg. It is a more indirect proposition - - -

GUMMOW J: Now, do you say judges of Territory courts are not officers of the Commonwealth?

MR BENNETT: That is so, your Honour. That is the effect of Murray and of the decision in - - -

GUMMOW J: It is not the effect of Murray.

MR BENNETT: I am sorry. Murray's Case was confined to State courts.

GUMMOW J: To 77(iii) courts.

MR BENNETT: Yes, but it was in the Federal Court that it extended to Territory courts in Slater v Miles - - -

GUMMOW J: Yes.

GAUDRON J: There is no decision of this Court on the matter, is there?

MR BENNETT: Not that I am aware of, your Honour.

GAUDRON J: And even assuming self-government, why would people involved in the organs of government of a Territory not still be officers of the Commonwealth?

MR BENNETT: Your Honour, because of Capital Duplicators, I suppose, ultimately after self-government.

GAUDRON J: I do not think Capital Duplicators goes that far.

MR BENNETT: But in any event, your Honour, it probably would not matter because one could look at the question of common law prerogative relief and one could look at the question of collateral challenge and one could look at various other means of bringing a challenge other than what is done here. The refusal of fresh evidence on an appeal does not prevent issues of the type which have been given in argument like bribing jurors and biased judges and so on being raised in an appropriate way, and there are other means of that being done.

GUMMOW J: What would happen at common law in a trial, an indictment, and assume it is not too late because the convict is now in New South Wales but alive, if it transpired that jurors had been corrupted? What remedy was there apart from an executive remedy?

MR BENNETT: I do not know the answer to your Honour's question - - -

McHUGH J: I think you may have been able to get a motion in arrest of judgment. I know that was not abolished by the English Court of Criminal Appeal Act but I am not sure what the situation is in Australia or the Australian States.

MR BENNETT: Yes. There were problems, of course, in England with prerogative relief against the superior courts but it may be that one would be able to argue on the basis of cases such as Diems that there was a nullity and have some sort of collateral challenge. It may be that one would do it by way of error and Justice McHugh has given another example of the way in which - - -

GUMMOW J: Well, it would be helpful to know the answer, that is all.

MR BENNETT: But I do not know the answer, your Honour, I am guessing.

GUMMOW J: I am getting a bit weary of trying to find them myself.

GAUDRON J: And now, if it is a territory court, is there something there that makes all those common law remedies available? If it is the ACT Territory court, for example, or are we dependent on the Constitution?

MR BENNETT: Well, your Honour, we have not prepared a detailed argument on this because it is not part of our case, of course - - -

GAUDRON J: It bears on Mickelberg. I mean, Mickelberg, in its application to federal jurisdiction, is one thing if there is another avenue by which to raise issues such as these which now arise.

MR BENNETT: Well, your Honour, there is certainly the avenue of the section, whose number escapes me, that has been referred to today, under which one goes to the court and seeks a - - -

GAUDRON J: Yes, but that can go any day. We are talking in a federal structure which clearly envisaged that people were going to act in accordance with law and strictly in accordance with law because of the federal compact. Now, what I am asking, therefore, is of some relevance in a constitutional setting to Mickelberg which itself proceeded out of a constitutional setting.

MR BENNETT: Yes. Your Honour, one cannot assume that the Constitution contains an answer to every evil known to people. One cannot make that assumption. There are, and have been for some time, other remedies available, one of which is that one. Certainly, it can be repealed. Certainly, a lot of things can be repealed that take away rights people would have and in those situations they might not have constitutional rights. But one has to look at each constitutional right claimed and see if it is given in the particular circumstances and why it is - - -

GAUDRON J: What this Constitution clearly envisaged was that the organs of the Commonwealth were not going to overstep their powers.

MR BENNETT: Yes, your Honour, and there is a question as - - -

GAUDRON J: And that is why we come to this question.

MR BENNETT: And, your Honour, there is a question as to the extent to which, when one talks of organs of the Commonwealth, one includes organs of territories.

GAUDRON J: Exactly.

MR BENNETT: And, that is an issue, particularly where the corresponding organs in the States were not subject to that control under this Constitution.

GAUDRON J: Exactly.

MR BENNETT: That is the issue we argued about earlier this week and it is a perennial issue - - -

GUMMOW J: The leaves may be about to fall.

MR BENNETT: But the only relevance in this case is that there have for many years been in every State of Australia, as I understand it, remedies which are available, in the extreme examples one can think of, for error caused by the Mickelberg principle and I suppose the obvious one is the murder case where the victim is discovered later to be alive. Of course, this case is nothing like that. But, in that sort of case there is a simple form of procedure available to deal with the injustice as best it can then be dealt with and that is relevant to the need to overrule Mickelberg.

Now, there are only a number of very short matters I wanted to refer to otherwise. One is in relation to Buzacott [1920] HCA 12; 27 CLR 286 which seems to be the only case in which this Court has actually acted on fresh evidence in an appeal. Your Honours will see - - -

GUMMOW J: I thought the Solicitor for Victoria was going to demolish Buzacott.

MR BENNETT: Your Honour, we have not had any formal agreement about division of responsibility and I am going to deal with it very quickly, your Honour.

GUMMOW J: He has got about five paragraphs in his thorough submission.

MR BENNETT: Yes. You Honour, all I propose to do is to hand up to your Honours a copy of the relevant rules. I am sorry, your Honour, two pages of the High Court Procedure Act have been attached to it. They are not of any relevance. I hand to your Honours copies of the Rules of the High Court at the time and those Rules specifically permitted the use of fresh evidence in appeals. The Rules permitted it in appeals from Justices of the Court and another rule picks that up in relation to appeals from States. Now, of course, we would submit that those rules were not valid but the - - -

GAUDRON J: But they might have been valid so far as concerns an appeal from a single Justice.

MR BENNETT: That is what I was about to say, your Honour, but they may well have been valid and Buzacott may well be capable of explanation on the basis that when there is an appeal from a Justice of the Court and the jurisdiction therefore arises under section 75 to 77, that although the Court may also be hearing an appeal under 73(i), in the course of doing so it might be open by use of the Rules to continue to exercise some original jurisdiction.

I do not want to develop that argument or put it as an argument that is necessarily correct. What I do put it as is a basis on which Buzacott might be distinguished. It was, in any event, an extempore judgment which contains, really, no analysis of the issue at all. It seems to have been assumed and, no doubt, in reliance on the Rules of Court quoted to it by Mr Latham, as he then was. The only relevance of the Act is that section 32 refers to the Rules and the rule-making power.

There is one correction, one minor erratum in our submissions and that is that the - would your Honours please note that the second-last sentence of footnote 19 may not be totally accurate in that it refers only to the criminal position and we have not had an opportunity to ascertain the civil position in relation to that and the footnote may suggest that we have.

Your Honour, in footnote 1 of our submissions we refer to constitutional facts and the reason I have referred to that is that if there is to be a reaffirmation of the Mickelberg principle in general terms it would be useful if it were done in such a way that it does not deal with the question of proof of constitutional facts which have been treated by this Court, for very good reasons, as being in a separate category. There is a useful discussion of that issue in an article by Mr Brazzel in 1970 volume 4 of the Federal Law Review at page 65.

Your Honour Justice Kirby asked my learned friend, Mr Game, about the use of the word "jury" in the Constitution in Cheatle's Case and the change in the use of the word. The issue being discussed in the present case goes to the connotation and not the denotation of the word "appeal" and that, in that way - - -

KIRBY J: That is a heavily - philosophers regard the Court as having made a real mistake in that. We have called "connotations" denotations and "denotations" connotations and really, with respect, it is a very unconvincing area of the Court's analysis.

MR BENNETT: The usefulness of the analysis is not so much the correctness of the terms as the correctness of the approach, and the approach simply says that a word has a core meaning that does not change and it has areas of its application which do.

KIRBY J: Yes, exactly. Take "jury". Take "Queen". The Queen then was the Queen of the United Kingdom and Ireland which no longer exists. We read that differently and take "appeal".

MR BENNETT: Yes. Well, your Honour, the word "appeal", though, is in a different category, I would submit, to the other words because it was a word which already contained within it a number of distinctions. The continuation of the practice which existed at the time of having particular courts authorised by their statutes to hear fresh evidence on appeal rather indicates that the word was then, and still now, has its original meaning.

McHUGH J: Even today we still argue about what the meaning of appeal. We have appeals de novo, appeals by way of re-hearing as in the Quarter Sessions type appeals, and appeals strictu sensu, and there is three well understood.

MR BENNETT: Yes, your Honour, but - - -

KIRBY J: I think Justice Glass in a case in the New South Wales Court of Appeal found seven meanings for "appeal".

MR BENNETT: Your Honour, the point in the present case is that while there may be a range of meanings, in relation to the question of whether it includes something with fresh evidence, we know that today in 1999, as in 1900, where it is desired that a court should have jurisdiction to hear fresh evidence on appeal, that would be provided for in the statute or rules of court. The Constitution, in that milieu which is the same milieu we have today, used a word which has been held in the absence of such authorisation to have a limited meaning. That, we submit, puts it in the - if your Honour prefers me not to use the words "connotation" and "denotation" - category of the fixed part of the meaning of the word, not the flexible part.

KIRBY J: I realise you have to say that, but the argument of the other side is that it is used in a Constitution which would normally not be given a narrow meaning, it is a meaning which will be read by different generations in different ways and it is a core provision of the Constitution because it is relating to the rule of law and the application of the rule of law in the courts, and it gives people rights; very important rights, central rights.

MR BENNETT: At the time, your Honour, it was not thought necessary to give them the right to have a hearing with fresh evidence on appeal to this Court which would normally, of course, be a second appeal.

KIRBY J: The Constitution is not written in such a way that they would have said, "And by the way, we mean appeal with fresh evidence". It just is not written in that style.

MR BENNETT: Your Honour, at the end of the day, all I can say is that there is a line of authority, it is consistent except for Buzacott which can be explained, and the word has been given that meaning. Statutes and rules of court, where they want to depart from it, have assumed it is necessary to say so.

GLEESON CJ: Were you expecting to be much longer, Mr Solicitor?

MR BENNETT: No, your Honour, I have now finished.

GLEESON CJ: Thank you. Yes, Mr Solicitor.

MR GRAHAM: May it please the Court. We circulated, some three days ago, I think, our main outline of argument. We have also circulated this morning to members of the Court a supplementary outline and I propose to spend just a few minutes dealing with the supplementary outline. Before doing so, may I say of the primary outline, we simply adopt it as our argument and only wish to add two observations. First, it was said in the course of argument this morning that Mickelberg may only apply in cases arising out of the exercise of State jurisdiction by State courts.

That proposition, standing without reference to earlier authority, may well be right. But may I remind the Court of the decision of this Court in Grosglik v Grant [No 2] [1947] HCA 1; 74 CLR 355. That was a case decided in 1947 and the Court reaffirmed the rule that it had recently pronounced upon in Davies and Cody, that it would not admit fresh evidence upon the hearing of an appeal. The case is important in this context because it was a case that arose in federal jurisdiction. It was an appeal from a stipendiary magistrate exercising federal jurisdiction.

It is interesting to note that the Court, which comprised Chief Justice Latham and Justices Rich, Dixon, McTiernan and Williams, cited as authority for the proposition that fresh evidence would not be received in the earlier decisions in Victorian Stevedoring v Dignan and Davies & Cody v The King. So that there is authority in this Court that the denial of reception of fresh evidence applies in appeals from courts exercising federal jurisdiction.

GUMMOW J: Now, Mr Solicitor, you are here on the same footing as Mr Bennett, I take it?

MR GRAHAM: Yes, your Honour, I did not wish to take up the Court's time but if leave is required, perhaps I can say I seek leave - perhaps there is an argument there that I do not, but I will seek leave rather than take up the Court's time.

If I can take the Court so far as the primary submission is concerned to paragraph 9, where we have referred to Buzacott's Case and the fact that Sir John Latham had appeared in Buzacott's Case and had presided in Davies & Cody. In fairness I should also mention that Sir Owen Dixon appeared in Buzacott. He also sat in Davies & Cody and both Sir John Latham and Sir Owen Dixon sat in Grosglik v Grant.

If I can then take the Court to our supplementary submission in which we raise a point which has not been explored in this - - -

KIRBY J: Could you explain to me, apart from defending the Constitution and its true construction, is there any other interest of the State in upholding the construction of Mickelberg?

MR GRAHAM: No, your Honour, we - - -

KIRBY J: What I have not perceived: is it, as it were, defending the finality of Courts of Criminal Appeal to examine fresh evidence, given that the same slips can occur between trial and Court of Criminal Appeal as between Court of Criminal Appeal and the High Court.

MR GRAHAM: No, we do not take a stand like that, your Honour, and our presence here really is to assist the Court and - - -

KIRBY J: Purely legal principle.

MR GRAHAM: Yes, that is so. In our supplementary submission we do raise the possibility that the present applicant does have open to him another remedy, namely, an application to the Full Court of the Federal Court to reopen its decision on the earlier appeal against conviction in reliance upon fresh evidence. This possibility was flagged at a very early stage of these proceedings by your Honour Justice Gaudron in one of the directions hearings when your Honour referred to Grierson v The King standing in the way of any such reopening. I can give the - - -

GLEESON CJ: Does that depend upon whether a formal order has been taken out?

MR GRAHAM: Your Honour, one was brought up to think so but, when one looks at the more recent decisions, one really has to question that as to whether that truly is a distinction. And perhaps if I can just quickly take the Court through the chain of authority as it is set out in the supplementary submission. Grierson v The King [1938] HCA 45; 60 CLR 431 was decided in 1938, and this Court decided that a Court of Criminal Appeal could not reopen its earlier judgment.

The Full Court of Victoria, sitting as a Court of Criminal Appeal, had reached the same decision in an earlier phase of the Davies & Cody saga (1937) VR 150 in the Court of Criminal Appeal and said it could not reopen its earlier decision dismissing an application for leave to appeal against conviction by Davies & Cody. When one reads this Court's judgment in Postiglione [1997] HCA 26; 189 CLR 295, one sees that at least in cases where the record has not been perfected, the decision of a - - -

GUMMOW J: The question is: what was the record that was part of the trouble?

MR GRAHAM: This is not meant in any way disrespectfully, but the judgments are not all that clear about what the state of the record was because I believe, as I read the case, that it was not altogether clear to the Court what the state of the record was. So the Court did not.

HAYNE J: Are we clear here what the record is? For example, is there a return of prisoners which is the ordinary form in at least some state courts which is, I think, taken to be the record?

MR GRAHAM: Your Honour, I do not know, but we would submit that that is something which could properly be explored by the Full Court of the Federal Court if application were made to that court and objection was taken that the record had been drawn up and perfected.

GUMMOW J: We am talking immediately about the record of the Full Court of the Federal Court.

MR GRAHAM: Yes, that is right. The basis of the submission we are putting to the Court this afternoon is the decision we referred to in paragraph 2 of the supplementary submission in the case of Donkin v AGC Advances Limited. It is an unreported decision of the Full Court of the Federal Court delivered as long ago as 30 August 1995. We have provided copies of the judgment to the Court. The court comprised the Chief Justice, Justice Davies and Justice Whitlam. The form of procedure in that case was an application to reopen an earlier appeal.

GUMMOW J: But had the order been entered? I could not quite work it out.

MR GRAHAM: I could not either, your Honour, but the court was content to proceed on the basis that it had been but it could still be the subject of an order setting it aside.

HAYNE J: The court assumed the capacity to set aside and refused to set aside.

MR GRAHAM: Yes, that is right your Honour, so it is probably obiter, what the court had to say on this topic.

HAYNE J: If you go to page 2 of Chief Justice Black's judgment, is that not plain, at about point two of the page?

MR GRAHAM: I accept that, your Honour, and, indeed, if one goes to the somewhat more extensive reasons of Justice Davies, that is apparent also. If I can just - - -

HAYNE J: Page 8 at the foot.

MR GRAHAM: Yes, that is right, your Honour. The relevant page references are page 2, pages 6 to 8 and pages 15 to 16 of the judgment of Justice Whitlam. Their Honours referred to cases which will be familiar to your Honour Justice Kirby, one of which is in our list of authorities and one of which is not. The earlier of the two is Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 in which your Honour Justice Kirby took the view that in special circumstances the New South Wales Court of Appeal could entertain an application to reopen the decision of that court given earlier on the basis of fresh evidence, although it was a jurisdiction to be exercised sparingly. It appears at pages 394 to 395 of your Honour's judgment.

The other members of the Court, Justice Hope and Justice Samuels, agreed with the judgment that your Honour Justice Kirby gave in that case. The other decision to which your Honour Justice Kirby was a party is Haig v Minister Administering the National Parks and Wildlife Act (1994) 85 LGERA 143. The relevant passage in your Honour Justice Kirby's judgment is at pages 153 to 154 - - -

KIRBY J: Yes, but all of these judgments say it is truly exceptional, for whatever guidance that gives, and you get a picture of the poor old African carrying the burden of the world, like Atlas, on his shoulders, whereas here he comes up and if he gets through special leave, well he has a right to be heard in the ordinary way; nothing exceptional. Once he is through the gate - - -

MR GRAHAM: Once he is through the gate in this Court, but here we are talking about our proposition that the present applicant has a remedy by going to the Full Court of the Federal Court.

KIRBY J: Yes, but why should he go like Atlas to the Federal Court, when he can come here and seek special leave? It is not truly exceptional, in this Court, once special leave is granted.

MR GRAHAM: I suppose, your Honour, it is because of the obvious inconvenience and difficulty which would attend a hearing by several Justices of this Court of fresh evidence; a matter which is referred to by Justice Brennan in particular in Mickelberg.

KIRBY J: All I am saying is that if you look through the cases, the Full Federal Court and the Court of Appeal of New South Wales, and doubtless others, have said, we have this very, very exceptional jurisdiction, but yet, as far as I know, you never see it exercised.

MR GRAHAM: Yes, but the real point is that - - -

KIRBY J: Kept in reserve, but it is always rebuffed.

MR GRAHAM: Perhaps the way in which I should put it is this, your Honour: that the Full Court of the Federal Court is well equipped, if it has jurisdiction, to receive this evidence, make a judgment about it, receive evidence which might contradict it, hear the cross-examination and make a decision. We would say that would be, at least, an inconvenient task for this Court to undertake.

KIRBY J: That is a discretionary argument really, is it not? It is not going to the nub of the constitutional question.

MR GRAHAM: Your Honour, I accept that, but one can see that sort of consideration underlining what was said in Mickelberg, particularly by Sir Gerard Brennan, but also by the reaction of this Court in Davies and Cody v The King, to the attempt to adduce evidence in front of this Court on that occasion, when it was apparent that the petition of mercy procedure was available and, indeed, subsequently was utilised. Unfortunately, the petition of mercy procedure is not available in the Australian Capital Territory.

Your Honours, those are the further matters that we wish to put in development of our supplementary submission, and concludes our argument, if the Court pleases.

GLEESON CJ: Mr Solicitor, this issue caused such problems in New South Wales over the last three or four years that we had to amend the Rules of the Court of Criminal Appeal to actually provide a procedure for perfecting the order of a Court of Criminal Appeal. It was found that there had not been one before then and cases in which orders had actually been perfected in New South Wales were very rare, until recently. What is the procedure in the Federal Court of perfecting the order of the court?

MR GRAHAM: Your Honour, I cannot answer that quickly. I know the procedure is prescribed by the Rules of the Federal Court. Indeed, every judgment handed down by the Federal Court contains a notation at the end of it saying that the procedure for perfecting judgment of this Court shall he in accordance with the Federal Court Rules and I am afraid I have never followed it through.

GUMMOW J: Order 35 deals with perfecting orders, I think.

MR GRAHAM: Yes, but whether it is always done, either in - - -

GAUDRON J: Is it done by the court itself?

MR GRAHAM: It is done by the court itself.

GAUDRON J: Not by a party, because the trouble, I think, in the New South Wales Court of Criminal Appeal was no unsuccessful appellant had any interest in perfecting the order.

GLEESON CJ: And 99 - it is a slight exaggeration - the great majority of appeals came from the District Court and it was on the record of the District Court the order was supposed to be perfected.

MR GRAHAM: Your Honour, I certainly know that in Victoria the matter was explored in a decision. It think it is Hodgkinson. I think Justice Hayne had it in mind just a moment ago, but it is all explored - - -

HAYNE J: Justice Phillips looked at it, did he not, in - was Hodgkinson?

MR GRAHAM: No, that was much earlier. Hodgkinson was - - -

HAYNE J: There is a recent Victorian Court of Appeal about whether you can recall the declaration about pre-sentence detention.

MR GRAHAM: I can provide the Court with a note about the Victorian position and the Federal Court position but I do not think I can assist the Court further in that regard just at this moment. If the Court pleases.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Solicitor.

MR MEADOWS: May it please the Court, I seek leave. May it please the Court, we would adopt the submissions which have been put to the Court by the respondents, my learned friends the Solicitors for the Commonwealth and the State of Victoria, and we would rely on our written submissions.

My learned friend Mr Jackson has suggested to you that Mickelberg is not authority for the proposition that fresh evidence cannot be received in respect of matters which do not deal with the substantive issues which were dealt with at the trial and I want to suggest to the Court that that is not so and if I could take your Honours to the judgment in Mickelberg, and in particular the judgment of Chief Justice Mason at page 264 and 265, where he identified the issues of fresh evidence which were in issue in that case and if I can take you to the third of those and that is at page 265 about a quarter of the way down the page. The issue of fresh evidence which was sought to be covered was:

That, following his conviction, Peter Mickelberg gave instructions to his counsel to appeal to the Court of Criminal Appeal against his conviction for conspiracy.

That, of course, is not a matter which goes to the substantive issues at the trial and indeed could be seen as a supervening fact and the Court, of course, refused to allow fresh evidence in relation to that issue. So, we would submit that Mickelberg is indeed authority for the proposition that you cannot adduce fresh evidence.

GAUDRON J: That was only relevant to the discretionary grounds upon which you might grant or refuse special leave. It, really, surely, is different. It had no relevance in context to anything other than the discretionary considerations that might be brought to bear.

MR MEADOWS: That is not the way it is put by his Honour. His Honour says - if you go back to page 264 where, in the first paragraph, his Honour said:

My comments relate, first, to the submission that this Court has power to receive fresh evidence in an appeal from a Court of Criminal Appeal -

and he then goes on further down to say:

I should identify the nature of the additional evidence on which the applicants sought to rely.

The applicants sought to establish -

GAUDRON J: But could it have been relevant to anything else? In the facts of that case, could it have had any other relevance?

MR MEADOWS: It had relevance as to why this issue had not been raised in the court below.

GAUDRON J: Yes, the same as here saying, on one view, Mr Jackson puts this evidence forward to explain why it was not raised.

MR MEADOWS: Yes, your Honour, and the point I make is that Mickelberg is authority for the proposition that that evidence cannot be allowed.

GAUDRON J: Yes, well, I would not read it as such. I realise that there is that reference there but the reasoning does not deal with that.

MR MEADOWS: The second matter that I wish to raise was in relation to the procedures which are available through the executive referring a case to the Court of Criminal Appeal. We have prepared a booklet for the assistance of the Court which contains the relevant statutory provisions in each State and Territory which we hope will be of assistance to the Court. We point out in paragraph 12 that in all States and Territories procedures are available in order to allow for this to happen and, indeed, Mickelberg itself was a case which was based on a referral under the Western Australian legislation and as we point out in footnote 20 of our submissions, the Mickelbergs have had a further reference to the Court of Criminal Appeal under those provisions.

I would refer also to a judgment of Justice Wood in the application of Pearson which was handed down on 4 March of this year in relation to Part 13A of the Crimes Act of New South Wales. We have a copy of that judgment available. I simply refer to it because it does contain a detailed examination of those particular provisions.

KIRBY J: Have you handed that in, that judgment?

MR MEADOWS: It is just about to be handed up, your Honour.

KIRBY J: Thank you.

MR MEADOWS: I do not wish to refer to it except to say this, that the question was raised as to whether the procedure was justiciable or whether it was administrative in nature and Justice Wood there found that the procedure was administrative.

KIRBY J: I thought there had been an earlier decision along those lines in which I dissented. Justice Hogan and, someone, another judge.

MR MEADOWS: He does refer to the earlier cases in New South Wales, your Honour.

KIRBY J: A man with a German name.

GAUDRON J: Was it not referred to in Mickelberg in terms of whether this Court was exercising jurisdiction in the matter?

MR MEADOWS: Once it gets to the Court of Criminal Appeal, your Honour, I would accept that it is exercising jurisdiction in respect of a matter. This was the application as to whether or not it should be referred to the Court of Criminal Appeal, the application to either a magistrate or a judge.

KIRBY J: Varley was the name of the case.

MR MEADOWS: Yes, that is referred to as I recall. One other case to which we would wish to draw - - -

KIRBY J: They tend to be, forgive me if I am wrong, much more peremptory. They can be knocked out just on impression. They are not reviewable in a court. The prisoner does not have a right to have the court in public place, concentrate its attention on the arguments as it does in an appeal and respond with detailed reasons to the arguments. It is a very disadvantageous procedure from the point of view of the accused.

MR MEADOWS: I would accept that except in the case of New South Wales where the procedure does allow for an application to be made to the court under section - - -

KIRBY J: That must be something new.

MR MEADOWS: That is section 474D which is, if you have the booklet, on the second page of the booklet, but I accept that in - - -

GUMMOW J: I do not understand this decision in Pearson. Were these federal offences that were involved?

MR MEADOWS: They were, your Honour, and his Honour found that one of the questions which was raised in the cases whether these provisions related to a conviction against a Commonwealth offence, and his Honour found that they did. Another issue was whether they - - -

GUMMOW J: It is the other way around: whether there is any law of the Commonwealth that provides for these provisions to apply.

MR MEADOWS: Well, all I can say, your Honour - - -

GAUDRON J: And, prima facie, 79 and 80 of the Judiciary Act would not be operating, would they?

MR MEADOWS: Well, in fact, his Honour relied on section 68 of the Judiciary Act.

GUMMOW J: But that would have been spent too, I suppose. He decided it was not spent and somehow picked up this extraordinary executive procedure, is that right?

MR MEADOWS: Well, he held that section 68 was applicable even though he had held shortly earlier in his judgment that the procedure was administrative in nature. The other case to which I wish to refer was that of Reg v Bow Street Metropolitan Stipendiary Magistrate Anors, Ex Parte Pinochet (1999) 2 WLR 273. I only refer to that case as a recent example of where the House of Lords has received further evidence, admittedly in relation to a question of apprehension of bias, but there is quite an illuminating passage at page 281 as to the view which their Lordships took as to their inherent jurisdiction to correct an injustice.

GUMMOW J: But is it not the position that Pinochet - this is Pinochet [No 2].

MR MEADOWS: Yes, your Honour.

GUMMOW J: It is not the position that in Pinochet [No 1] further evidence was received.

MR MEADOWS: No, it was in - well, the report refers to it as - - -

GUMMOW J: Tendered by interveners, in fact.

MR MEADOWS: I beg your pardon, your Honour?

GUMMOW J: Tendered by interveners, namely, amnesty.

MR MEADOWS: Yes, your Honour.

GUMMOW J: That is in Pinochet [No 1] and that happened without any comment.

MR MEADOWS: Quite so, your Honour, yes. But the point that I make is that the House of Lords there, at page 281, refer to the fact that there is no relevant statutory limitation and, perhaps, that distinguishes them from this Court - - -

GUMMOW J: There is no relevant statutory structure for the House of Lords, it comes out of the Parliament.

MR MEADOWS: I accept that, your Honour, and what is more, there is no statutory limitation whereas here we have a constitutional limitation, we would say, which has been identified. If it please the Court, the only other point that I wish to make is - and we make this in our submissions in paragraph 5 - that over the history of this Court this issue has been considered by some 20 Justices and 19 of those have held that the Court does not have the power to receive fresh evidence on an appeal. Only Justice Deane can be seen to have been in dissent. We have what I have chosen to call a short hit list showing which of the Justices of the Court have so held and we would say, consistent with the long line of authority about overruling existing principles established by this Court, should apply when such a weight of authority suggests that that is the correct approach.

KIRBY J: But, perhaps, it as Justice Windeyer said about the Engineers' Case that it was right in 1910 and 1930 to say "appeal" meant something but when we look today at the provision, it just does not mean the same thing, just like "jury", just like "the Queen".

MR MEADOWS: Well, I have heard what your Honour has to say about that, but - - -

KIRBY J: It is a question of whether you are an originalist or whether you are not, and the Court has been inconsistent on that point.

MR MEADOWS: Well, we would say that the Court should be - - -

McHUGH J: Well I am not sure that we were inconsistent in Cheatle and in Cheatle, it might be said, we took a very originalist view of the term "jury"; we said in 1900 it meant a jury of 12, and there is some dicta in the case about women, but the actual decision was that "juries" meant juries of 12, and that was its 1900 meaning.

KIRBY J: But not men and not property.

McHUGH J: Well that was not an issue. There is a dictum there.

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, there are, I think, five matters I wanted to mention: the first was, our learned friends from Western Australia refer to paragraph 3, the third category of evidence in Mickelberg. As we submitted earlier, your Honours, it does not seem to have been dealt with specifically and, indeed, the interesting thing is that Peter Mickelberg was, in fact, granted special leave. That is the first thing, your Honours. The second thing is that there is, in fact, an order in this case. You will see it in volume 2 of the application book at page 562, and it was taken out by our side.

GLEESON CJ: What is your submission concerning Grierson?

MR JACKSON: Well, your Honour, we submit it represents the current position; you cannot have two appeals. That seems to be the majority view - the view.

GLEESON CJ: I think it is a case that has been applied recently on a number of occasions in New South Wales.

MR JACKSON: Yes.

KIRBY J: I think Justice McHugh embraced it in Postiglione.

MR JACKSON: Yes, and I think two other Justices too, I think, your Honour. Your Honours, the issue arose in relation to Attorney-General v Finch where Finch endeavoured to apply for special leave - - -

HAYNE J: Whisky A-Go-Go?

MR JACKSON: Yes, your Honour, endeavoured to apply for special leave to appeal to the Privy Council twice, but the Privy Council dealt with it by hearing the application as if it had jurisdiction without calling on those who are going to argue the Constitution issue. Your Honours, could I just say a couple of other things: if one is looking for a contemporary understanding of the term "appeal" in section 73, then perhaps the Court's first rules are not a bad place to start, in that regard, because it is clear they contemplated that there could be appeals involving additional evidence, in at least some cases.

One matter that your Honour Justice Hayne referred to was - and your Honours those are the first rules of those handed up by my learned friend, the Solicitor-General for Australia.

HAYNE J: And they refer to "appeal" by way of rehearing, do they not, in that rule?

MR JACKSON: I think that is so, your Honour. Yes, the way in which they worked, your Honours, was that in section 2 of them - which is on the last page of the document that was handed out - one sees a heading "Appeals from Judges of the Supreme Court", "The Exercise of Federal Jurisdiction", "New Trials" and then it goes on then to apply the provisions of the preceding section to that and rule 1, as your Honour has said, that appeals from judgments of a justice of the court should be by way of rehearing.

Your Honours, in relation to the question whether a non-compliance with the requirements of 428E could go to the trial or the propriety of the trial a whole, could I just give your Honours a reference to what was said in the Court of Criminal Appeal in England in Reg v Podola (1960) 1QB 325 at page 348. The relevant passage is about point 4 on page 348 and goes through to about point 8, in particular your Honours will see a reference to Crane v Director of Public Prosecutions:

a convicted person is entitled to contend, in the words of Lord Sumner, that he "should not have been given in charge to the jury as he was, or "have been made the subject of any verdict at all, but should "have had the proceedings stopped at the outset."

And I would refer also to the next paragraph on that page. And another reference, your Honours, at the bottom of page 349 is to a different question and that is the question whether:

it is the duty of the court to have the doubt resolved before beginning or continuing the trial.

Finally, your Honours - - -

McHUGH J: In Podola he did not have any memory, did he?

MR JACKSON: I think that is so, your Honour, yes.

McHUGH J: But he was still held fit to stand trial even though he had no memory at all.

MR JACKSON: Well, your Honour, that is speaking about the principle rather than the application of it, with respect.

Your Honours, the last thing I wanted to deal with was an observation made by our learned friends about representation by Mr Terracini for quite some time, so the applicant was adequately represented. But could I just take your Honours to what was said in the Full Court in volume 2 at page 462, about line 35.

KIRBY J: Is this reported now, by the way? Has the case been reported?

MR JACKSON: Yes it is, your Honour, the reference is given by one of our learned friends. I will endeavour to find it for your Honour.

KIRBY J: Do not worry.

MR JACKSON: At page 462 in the Full Court what was said about line 24, it is the passage commencing on 31 May 1995 on the 15th day of the trial, "Mr O'Loughlin announced his appearance for the appellant", et cetera, your Honours will see a discussion in the paragraph commencing at line 36 about the fact that:

Thereafter Mr Terracini and Mr O'Loughlin moved in and out of the trial as their instructions were first withdrawn and then reinstated.

And your Honours will see the "moving feast" referred to on page 463 where the various dates are set out, and on page 463 commencing at line 33 reference by the court to the fact that:

The circumstances under which Mr Terracini's instructions were terminated for the last time on 10 October were quite astonishing.

And that goes through, your Honours, at the bottom of that page and through to page 464, and through to the top of page 465 at about line 14.

KIRBY J: But I think the suggestion is that the one person who had a long-term association with your client and the major responsibility for the presentation of his case and who, by inference, felt himself receiving sufficient instruction has not come forward with an affidavit to contradict capacity and understanding and all the other things that are relevant to being able to plead and present the case.

MR JACKSON: Your Honour, we have not been able to obtain an affidavit from him.

KIRBY J: Could I ask you: you remember Mr Solicitor from Western Australia raised what he called a "hit list" of 20 Justices of the Court of whom only one had determined in the favour of your argument on appeal. That leads me to be a little worried that you have only sought leave to have the Court reopen the holding in Mickelberg. What is the value of that if that is reopened but there stand in your way cases going back to Ronald v Harper?

MR JACKSON: Your Honour, could I say two things: the first is that that seems to leave out of account the Buzacott Case, which perhaps alters the number slightly. The second thing we would seek to say about it your Honours is that Mickelberg appears to be the case that picks up the ones that were before and is relevantly the case. Your Honour, may I just continue to say one further thing. Really, implicit in what we say is that if Mickelberg is overruled, the cases from which it is derived would, to the extent necessary, also go. Those are our submissions, your Honour.

GLEESON CJ: Yes, we understand that.

MR JACKSON: Those are our submissions.

GLEESON CJ: Thank you. Then, all the applicants for leave to intervene have that leave. We will reserve our decision on the point that has been argued and otherwise stand the matter over to a date to be fixed.

MR JACKSON: Yes. I am sorry to interrupt your Honour, but there is, I recall, a matter that I said I would provide some analysis of the medical report for Justice Hayne and I will endeavour to that in the next couple of days.

GLEESON CJ: Thank you. The Court will adjourn.

AT 3.50 PM THE MATTER WAS ADJOURNED