De Gruchy v The Queen S196/2000 [2001] HCATrans 501 (12 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S196 of 2000

B e t w e e n -

MATTHEW WAYNE DE GRUCHY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 OCTOBER 2001, AT 10.37 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please the Court, in this application I appear with my learned friend, MR J.S. STRATTON, for the applicant. (instructed by Andrews Solicitors)

MR A.M. BLACKMORE, SC: May it please the Court, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GAUDRON J: Yes, Mr Byrne.

MR BYRNE: Your Honours, this application is made in consequence of the conviction of the applicant on an indictment which charged him with the murder of three members of his immediate family - - -

CALLINAN J: Mr Byrne, how old were the brother and sister?

MR BYRNE: They were, I think, 14 and 16. The brother was almost 16 and the sister was 14.

CALLINAN J: How old were his parents? Is it in the evidence? It does not matter if it is not.

MR BYRNE: The mother, if I recall correctly, was in her late 30s and I think the father was in his early 40s. Those are approximate.

CALLINAN J: Mr Byrne, one of the real problems, the big problems, for you is that note, is it not, that was found in the bag?

MR BYRNE: Yes, certainly. That was the matter upon which the Crown based its case, primarily.

CALLINAN J: Are there any possible explanations for it, other than those that were not canvassed at first instance and in the Court of Criminal Appeal?

MR BYRNE: The applicant gave evidence in which he - - -

CALLINAN J: I recollect what his explanation was, which does not seem very convincing, does it?

MR BYRNE: It may not be a convincing explanation, but, of course, he is not required to give a convincing explanation. The nature of the entries on the note itself were, in our submission, not so compelling as they were contended to be in the prosecution case. There were equivocal entries there. The note was clearly written at two different times. Some of the material on the note was written in one pen and the other, in particular, the names of his - - -

CALLINAN J: Mr Byrne, could I just tell you how the case struck me, that the whole thing would seem very improbable - your client's guilt might even seem improbable - but for the note and the opportunity on the evening in question and his movement from the house to his girlfriend's house - all of that is consistent with guilt. I fully appreciate that motive does not have to be proved, but the fact that it was not proved in this case does not seem to me to be irrelevant. It just seems absolutely extraordinary that an apparently quiet, gentle young man, whose father gave character evidence for him - is that right?

MR BYRNE: More than his father - - -

CALLINAN J: Well, in particular, his father,

MR BYRNE: Also, his uncle - - -

CALLINAN J: There was no estrangement between the husband and wife, between the murdered - - -

MR BYRNE: No estrangement in the traditional sense, but it was the case that the husband was working in the city - - -

CALLINAN J: I knew that, and he used to stay overnight occasionally when he did. But there was no matrimonial discord - any evidence of that, or was there?

MR BYRNE: There was no evidence of that.

CALLINAN J: So you have what seems to be an unexplained, particularly brutal three murders by an apparently gentle young man, but then you have this very, very compelling note.

MR BYRNE: Your Honour puts it on the basis that the note was very compelling - - -

CALLINAN J: Well, I must say it strikes me as compelling. The list coincided with much of the material that was found in the bag, is that not right?

MR BYRNE: Not with much of the material, I would submit - - -

CALLINAN J: But some of the material, perhaps, yes.

MR BYRNE: - - - but some. There were things that were on the note that were inconsistent with the proposition that the Crown was putting as well, things such as him - that is, the applicant - inflicting injuries on himself, and so on. That did not appear to have any - - -

CALLINAN J: Why would he want to do that? What conceivable explanation could there be for that except that he wanted to give an appearance of perhaps having tried to repel somebody else and that plan or scheme failing?

MR BYRNE: None of that, with respect, was done. That was really one of the strengths of the defence case, that up until - - -

CALLINAN J: What explanation could there be for his noting on a piece of paper that he might want to inflict some harm upon himself, some injury upon himself?

MR BYRNE: There was no explanation given for that, but the important part of the evidence in the defence case was those matters to which your Honour has already referred: the improbability of a young man of apparently gentle disposition - at least, the evidence, and the unchallenged evidence, established that - committing an offence of such savagery, such unimaginable brutality within a very short space of time, and then returning after the commission of such a brutal series of offences to what appeared to be his former, well-established disposition, that of a quiet young man, who was very distressed about the fact - - -

CALLINAN J: There was also the failure - or his claim, I think, that he had not seen one of the bodies, that he had not gone into one of the rooms. Is that not another factor against him?

MR BYRNE: That was put - - -

CALLINAN J: And then the inconsistent, or rather, at least, incomplete version the first time - perhaps inconsistent. That is another problem, is it not?

MR BYRNE: That was a matter put in the Crown case with some force, but the circumstances that existed and the discovery of, initially, his mother's body, would have been a situation of extreme distress, as it was observed to be by the ambulance officers who attended the scene. He was, in fact, taken to hospital by those ambulance officers because they formed the view that he was in severe distress. A statement made by him that, "There is something wrong with Mum and Sarah", said to have been made in the course of this very distressed conversation, is one which may have been misunderstood. It may have been something that he at the time was speculating about. He did say, "Mum and Sarah" - that was the evidence, but it is not an item of evidence of compelling weight, in our submission.

McHUGH J: Improbable as it might seem, given the general background of the applicant, the range of suspects must have been very narrow. For example, you have a large square of carpet taken out of the bedroom. You find a small tuft of carpet found in the Corolla which the applicant drove on that particular night of 12 March. It had a red stain on it which matched the six DNA systems of the applicant. You have the fact that the material that is found later is 31 kilometres away from the scene of the murder, but only 2 kilometres away from his girlfriend's house, where he goes that night. You have a feigned robbery, or what appears to be a feigned robbery. They all seem to indicate that it must have been somebody connected with the deceased who wanted to hide something. Usually, when you have a crime committed by a family member, there is some attempt to make it look as if it is a feigned robbery, or something of that effect. Although that is a generality, it is a matter to be taken into account in this case.

MR BYRNE: Your Honour, there were explanations put forward - - -

McHUGH J: I know.

MR BYRNE: - - - for those matters which, superficially, may have been regarded as incriminating matters. It was clearly a matter for the jury to assess the respective circumstantial cases which pointed in competing directions.

McHUGH J: Well, the strong point you have going for you is the hair.

CALLINAN J: Yes.

MR BYRNE: The hair is something which strongly suggests, in our submission, that somebody other than the applicant was responsible for, at least, the killing of the young boy, and by inference, the killing of the other two people, because it is obviously not suggested that this applicant acted in concert with any others.

GAUDRON J: And there is also the deceased man, Wakehim - - -

MR BYRNE: I am sorry, your Honour.

GAUDRON J: The deceased man, Wakehim, whose suicide note said that he was afraid he would be blamed for the murders. Who is this man, or was this man, I should say?

MR BYRNE: I think he was a homeless person who had been in trouble of some kind, but I should say, your Honour - - -

McHUGH J: He was depressed, was he not?

MR BYRNE: I am sorry, your Honour?

McHUGH J: He was depressed.

MR BYRNE: Yes, he was suffering from an illness. That was not a matter of great weight. It was a matter that was - - -

CALLINAN J: You tried to lead evidence, did you not?

MR BYRNE: Yes, certainly, but it was not, I should say, a matter of anything like the weight that was attached to the evidence of the hairs. There were also suggestions, and it is the fact that there had been other very brutal murders, and people who have committed a number of murders in the area of the location of these crimes. That was another matter which was the subject of a ground of appeal in the Court of Criminal Appeal, but it is not pressed before this Court.

Our case, really, in this Court, is - perhaps leaving aside, if we may, the respective strengths of the prosecution case and the case in favour of the applicant - our case here is, essentially, that he did not have a fair trial of those issues which the jury was called upon to determine, because two of the very considerably weighty matters in his favour were effectively diminished by what we would suggest was an improper approach taken by the learned Crown Prosecutor in the heat of the battle, as it were, introducing this notion that the person who committed this offence was a person who had a disturbed mind. Now, that was introduced for the purpose of overcoming what was said to be a significant weakness in the Crown case, namely, the apparent absence of any motive in this applicant to commit these offences and also the - - -

McHUGH J: Well, you had his unchallenged, prior good character; his lack of any apparent motive; the absence of any injury or sign of abnormal behaviour or distress on his part; the presence of the hairs in the hand of Adrian de Gruchy; and, I suppose, the discovery of some items in the dam that were not positively identified as coming from the de Gruchy home.

MR BYRNE: Yes.

GAUDRON J: They were positively identified as not coming, were they not?

MR BYRNE: That is the way we would put it. We say, with respect, that the learned chief - - -

GAUDRON J: When you say they were in the dam, were they in the bag?

MR BYRNE: They were in a bag which was in the dam, yes. Those items were, in our submission, positively identified as not coming from the de Gruchy home, rather than the more neutral position of their being unidentified, as it were. The way in which the trial proceedings unfolded, in our submission, resulted in a miscarriage because this applicant did not have the full benefit that he was entitled to of the force of the evidence that there was no motive and the force of the evidence that he was a person of unchallenged good character.

What happened was that those two important aspects of his case were effectively undermined by the introduction of this notion that a person with a disturbed mind had committed the offence. That matter was raised in the learned Crown Prosecutor's final address to the jury and it was apparently responded to with some vigour by senior counsel who appeared for the applicant at his trial. It was then dealt with by the learned judge in his summing up, but dealt with in a manner which we would submit left it open to the jury to at least speculate that there was some evidence which the learned judge had described as irrelevant, which may have established that this applicant did, in fact, have a disturbed mind. That was the state in which the matter was left to the jury, and we would submit that matter alone deprived the applicant of his right to a fair trial.

Set out in the written argument is the basis on which we contend that the Court of Criminal Appeal erred in dealing with that particular issue. I do not wish to add anything further to what was said there. The second matter that is raised in this application - - -

GAUDRON J: So what you really complain about is this - I am looking at page 169:

neither you nor I know whether there is such evidence one way or other and it is entirely irrelevant."

MR BYRNE: Yes. The learned judge said words to that effect on three separate occasions in the course of his summing up, "We don't know one way or the other what the evidence is as to his disturbed mind". Now, the contention - - -

GAUDRON J: Well, not as to his disturbed mind. He left it open that he might have a disturbed mind.

MR BYRNE: Yes. He said that if there was such evidence, it would not be before the court because it was entirely irrelevant. The point made by senior counsel was that that was, in effect, unfair to the case brought on behalf of the applicant, because he had raised positive evidence of his own good character. If there was evidence available to establish that the applicant had some psychological disturbance, that would have been able to be called by the Crown.

The fact that no such evidence was called entitled the defence to say that those contentions that they had made, unchallenged, that he was a man of gentle disposition, a quiet, polite, respectful young man, were not overcome by that submission that the learned Crown Prosecutor made in the course of his address. It was a matter which obviously created a significant degree of heat in the trial proceedings. It was a matter that the learned trial judge dealt with at considerable length in the course of his summing up. In a summing up which occupied 50 pages of the transcript, this issue is dealt with over five full pages, so that it was a matter of real significance.

Your Honours, the second question that is raised on this application concerns the manner in which the Court of Criminal Appeal dealt with what was said to be evidence which tended to exonerate the applicant, and that is the specific evidence that reference has already been made to regarding the finding of the hairs in the hand of the victim Adrian de Gruchy. In my learned friend's submissions in this Court, he has contended that whether or not those hairs might have come from the applicant was equivocal, and also, whether or not they may have come from Adrian de Gruchy, the victim, was equivocal.

The evidence clearly established that they could not have come from the applicant and the evidence clearly established that they did not come from Adrian de Gruchy. They came from somebody else, apart from the person who was accused of the crime or the person who was the victim of the crime. The explanation for them being in the hands of the victim of the crime is rationally, in our submission, one which suggests that somebody else was the offender. In the Court of Criminal Appeal - just to deal with the Crown's submissions in this Court - the Crown conceded that the hair that was found in Adrian de Gruchy's hand could not have come from the applicant. That was the state of the evidence. That is at page 97 of the application book, where counsel's submissions are recorded.

Perhaps, for the purpose of emphasis, if I can refer to what Justice Simpson said in her short judgment dealing exclusively with this point - that is at page 154 of the application book. What her Honour described as "The sole point of departure" from the Chief Judge's analysis was the hair in Adrian de Gruchy's hand - alongside line 35:

hair that could not have been that of the appellant -

as he was in the Court of Criminal Appeal, and:

very unlikely to have come from Adrian.

That came from somebody else. It was therefore, in our submission, a rational conclusion that it was some other person who committed this offence. That rational conclusion was never overcome by the evidence which the Crown presented in this case. So it remained, and remains to this day, a reasonable conclusion, open on the evidence. Your Honours, those are our submissions.

GAUDRON J: Yes, thank you, Mr Byrne. Yes, Mr Blackmore.

MR BLACKMORE: Perhaps if I could deal with our submission in relation to the equivocal nature of the DNA evidence. It is not at all, with respect, as clear as my friend puts it. The hair was found - and this is set out in the judgment of the Court of Criminal Appeal at paragraphs 95 and onwards. It is not at all clear that the hair was, for example, grasped in the hand. The hair was merely adhered to the hand in some blood which was on the hand of the deceased. The hair itself was soaked with blood. The DNA analysis specifically said, "We could not determine whether the DNA came from the hair or the blood". It is in that context that we submit that it cannot be shown, in effect, whose hair this was.

GAUDRON J: Yes, but it can be shown that it was not Adrian's?

MR BLACKMORE: No, with respect. I will come to that too. Adrian's hair at the time that he died was short. It was about 4 centimetres. This hair was about 8 centimetres long, 8 to 10 centimetres long. I concede that it was not hair that came from his head on the day he died.

GAUDRON J: Yes.

MR BLACKMORE: That is the point that your Honour is really making to me, but it does not prove that - - -

GAUDRON J: And it did not come from the applicant on the day of the murders.

MR BLACKMORE: And it did not apparently come from the applicant on the day of the murders either, in terms of its length.

McHUGH J: Was there some suggestion that it could have been there in the garage from some - - -

MR BLACKMORE: That is another possibility, certainly, open on the evidence. Another possibility - the one, in fact, that was accepted by Justice Simpson, was it could well have been the sister's hair. The DNA that was on the hair was consistent with it being the sister's hair. The ferocity of the attack - - -

GAUDRON J: The hand was open?

MR BLACKMORE: Open, on the back of a chair and - - -

GAUDRON J: And the hand was not injured?

MR BLACKMORE: - - - it was a couple of strands only. It was not grasped - - -

GAUDRON J: No, but the hand was not injured, either?

MR BLACKMORE: I do not know for sure about that, but I will check that.

GAUDRON J: The reason I ask is because of the way in which Justice Simpson disposes of it, apparently, on a hypothesis that was not - - -

MR BLACKMORE: Was not raised by the Crown.

GAUDRON J: - - - raised by the Crown and was not raised at the trial.

MR BLACKMORE: It was raised by Justice Wood, I think, in fact, and adopted by Justice Simpson.

GAUDRON J: But no evidence - well - - -

MR BLACKMORE: There is clear evidence. There are photos, in situ, of the body and that is why we can say how the body was found. The pathologist who examined the body made it clear that this was not hair grasped, as it were, in the hand, with the hand clenched. It was hair adhered - and it was a few hairs only adhered to the hand. Therefore, the point that was being made by the Court of Criminal Appeal is if you have a very strong - and we would submit that this is a very strong circumstantial case against the applicant here - to displace that strong circumstantial case you need to have a piece of evidence that does not either fit within it, or some strongly contra-indicating piece of evidence. For example, an alibi would be a good example.

Even where there was a strong circumstantial case, a proved alibi would be such that you would have to set the circumstantial case aside. But here, this evidence was not strongly contradistinction to the case. It fitted within the case on some explanations. That, with respect, is what we say about the hair. It is not, at all, as strong a point as my friend would like to make it out. He has made it out extremely strongly in his written submissions. The evidence simply is not as strong as that. The hair could have been in that garage where it was and it could have adhered to his hand - - -

McHUGH J: Well, there is a suggestion also, is there not, that it could have been adhered to the murder weapon and been carried into the garage?

MR BLACKMORE: Correct, and the ferocity of the attack was what I was saying before, was that that could easily have happened.

GAUDRON J: That is assuming it was the sister's hair.

MR BLACKMORE: If we want to go with the DNA, the DNA was consistent with it being Adrian or the sister. I make the point again, though, that the DNA did not identify whose hair it was.

GAUDRON J: No.

MR BLACKMORE: No, and really, it is a bit of a furphy to suggest that it does.

GAUDRON J: And there was not even colour matching with the sister's hair, was there? I mean, when I say there was not colour matching, there was not evidence that it matched the colour.

MR BLACKMORE: There was not exact evidence. I think it was dark brown to dark - I mean, it was a very close difference, and the Court of Criminal Appeal dealt with that difference.

GAUDRON J: What I am concerned about is what the prosecution evidence was to tie it to the sister.

MR BLACKMORE: Well, only the DNA, again, your Honour, that there is no - - -

GAUDRON J: That it could have been. But that could have been the blood, as well.

MR BLACKMORE: It could have adhered to the instrument which was apparently used in both.

GAUDRON J: But the DNA evidence - - -

MR BLACKMORE: The DNA evidence was consistent - - -

GAUDRON J: - - - relating to the hair was evidence which might have been drawn from the blood, or it might have been drawn from the hair, and no one could tell.

MR BLACKMORE: Correct. When you say "drawn from the hair", yes, in the sense that it could not be shown whether the DNA was from the blood or the hair.

GAUDRON J: Yes. So we have really nothing to relate it to the sister - nothing very much to relate it to the sister.

CALLINAN J: And a suggestion that the colour may have been different. I do not put it any higher than that.

MR BLACKMORE: I agree, yes. These were equivocal - - -

GAUDRON J: I would have thought if the colour was different, that was quite significant.

CALLINAN J: Yes. Certainly, there is evidence that it may well - in fact, the better view probably is that it was not the same colour. The Court of Criminal Appeal, the majority, criticised the evidence for being imprecise.

MR BLACKMORE: Correct.

CALLINAN J: But such evidence as there was was of a different colour.

MR BLACKMORE: Your Honour, I want to emphasise, this is a foundation built on sand. There really is not this foundation for the proposition that this is an assailant who has done this. That has to be the bottom foundation here, that it has to be somebody else other than Adrian - - -

GAUDRON J: No, it does not. The only assumption that has to be made is that it was not the accused who did it.

MR BLACKMORE: Correct, and therefore some other assailant. In our submission, the foundation simply is not sufficient to set aside - it is a piece of circumstantial evidence, taken at its highest, it had aspects of it which were equivocal and could not set aside the other - - -

GAUDRON J: I think you are intending to reverse the onus of proof, are you not, in that submission?

MR BLACKMORE: With respect, no. No, we accept that as the onus of proof, the circumstantial case was a strong one, and - - -

GAUDRON J: If you look at half of the material, it is strong.

MR BLACKMORE: No, with respect. It is much stronger than that, much stronger.

GAUDRON J: But if you look at all of it, no evidence of motive - - -

MR BLACKMORE: Correct.

GAUDRON J: - - - good character, so forth - - -

MR BLACKMORE: Unusual case, it must be accepted.

GAUDRON J: - - - and perfectly normal behaviour, no sign of injuries. Once you look at it all, it is not so strong. It seems to me you are just looking at part of the evidence and not the whole of it when you make that submission.

CALLINAN J: And extraordinarily brutally efficient. Extraordinarily brutally efficient, if it was done by this 18-year-old boy of apparent good character.

MR BLACKMORE: I cannot gainsay the facts. This was a very unusual crime, but I maintain that this was a strong circumstantial case pointing to the guilt of the applicant. I want to move onto this next ground, just because I am probably running out of time. I am not reversing the onus in respect of that. I am simply saying that this evidence was equivocal, therefore you cannot say that it displaced that circumstantial case.

McHUGH J: Remind me of this. He arrived at his girlfriend's home about 11 o'clock that night. How much earlier had he been expected? He arrived later than he was expected to arrive.

MR BLACKMORE: I am drawing on recollection - I will have it checked - but I believe it was something in the order of an hour earlier, but I will just have it checked, if I can, and I will answer your Honour's question.

McHUGH J: Yes.

CALLINAN J: Because it was proved that you could travel easily these 31 kilometres in an hour, I think.

MR BLACKMORE: In those sorts of terms, yes, there was opportunity. That was not an issue.

CALLINAN J: For such efficiency, it was a relatively brief opportunity.

MR BLACKMORE: Yes. Although, in a sense, the efficiency fits in with the circumstantial case, given the plan. I mean, I - - -

McHUGH J: The note.

MR BLACKMORE: The note. And, really, the jury were able to see the explanation - and this must have been a crucial issue in this case - given about that note. Without going into detail, it was a fairly unacceptable explanation. Moving to the issue about the character, it is important - if I could just take your Honours briefly to the application book. This raises itself - we do not have the precise words given by the Crown, but the essence of it is set out in the summing up at page 20 of the appeal book, about line 35 to line 45. The thrust of my submission is this, that this comment about the "disturbed mind" was a comment made in relation to the objective evidence. It was not a comment that said that the applicant had a disturbed mind. It was a comment that whoever committed the crime had a disturbed mind.

Now, your Honours might think this is a splitting-hairs argument, but the reason that I put it is this: in order for the jury to actually apply this comment, as it were, to the applicant, they had to actually conclude that he committed the crime. So, in that sense, in our submission, it did not interfere with his character evidence. His character evidence had to be taken into consideration before that, and therefore it is not as if he said, "The applicant has a disturbed mind". That is the thrust of our submission in relation to that, that that does not, in fact, logically touch upon his character, at all. There was no motive, I accept that, but, of course, there are cases in which the Crown is not able to establish a motive and it needs to do it. There was a misconception at one stage that it would need to do it beyond reasonable doubt, but I think that has finally been put away.

CALLINAN J: Well, I do not know that that is right. It possibly assumes a greater importance in a circumstantial case than it does in - or in some circumstantial cases, anyway, than it might in other cases.

MR BLACKMORE: It might be a case where you have to prove beyond reasonable doubt, in some cases, for sure. But, of course, that also makes it difficult for the Crown to lead one, in some cases. Anyway, there was no motive here. If I can just go on, though, then to deal with what the judge said about it. At page 21 of the application book, he said this at line 20:

I confirm to you there is no evidence here that the accused has a disturbed mind or anything that might be described.

A few words missing there. On one view of it, this was very, very satisfactory for the applicant. In essence, it points up the very issue - it highlights, in a way, the very issue that here was a man of otherwise gentle disposition, good character, without a disturbed mind, and yet the Crown is saying the sort of person that committed this crime was somebody who had a disturbed mind.

CALLINAN J: That is really contrary to the view that was taken by senior counsel for the applicant and it was obviously contrary to the view that the trial judge took, because he thought it had to be corrected.

MR BLACKMORE: It had to be corrected but for reasons that he perceived were bordering on going into areas of diminished responsibility and mental health issues, which were not in the case. When he then went on to say there is no evidence one way or the other, in essence, that is what he was talking about, presumptions in relation to sanity, for example. He raises this very point at page 56 of the book - this is the judge. So that was what was in his mind when he was giving these directions. If I can take your Honours very briefly to that, page 56, line 40:

HIS HONOUR: The case Mr Ramage, the Queen v Anderson, which it is said there is no assumption of sanity applicable to either you or to me -

It went off on an tangent. It must be accepted there was a number of pages here where his Honour addressed this issue, quite possibly needlessly. But, in the end, the question is: does it involve a miscarriage of justice? In our submission, it does not. The applicant's character was properly taken into consideration and would have had to have been properly taken into consideration. My busy solicitor has pointed out that, in fact, the time that your Honour Justice McHugh asked about is set out at paragraph 39 of the Court of Criminal Appeal judgment:

He stated that he had left to go to Alyssa Brindley's house, the preceding night, a bit before 10 pm. He said that there had been about five prank calls up to about 9.40 pm.

This does not actually answer your Honour's question, I realise now.

McHUGH J: Well, he arrived around 11 o'clock.

MR BLACKMORE: He arrived around 11 o'clock, yes.

McHUGH J: I just thought there was some statement somewhere that - - -

MR BLACKMORE: I think there was some evidence somehow but - - -

McHUGH J: Anyway, it is minor point.

MR BLACKMORE: - - - nobody suggested that there was not an opportunity, your Honour.

McHUGH J: No.

MR BLACKMORE: Subject to that, those are our submissions, your Honours.

GAUDRON J: Yes, thank you, Mr Blackmore. We need not trouble you, Mr Byrne.

By majority, there will be a grant of special leave in this case. I say "by majority" because that may indicate to you that it is just a grant of special leave and nothing more.

AT 11.13 AM THE MATTER WAS CONCLUDED