Morris v The Queen S200/1999 [2001] HCATrans 596 (20 November 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S200 of 1999

B e t w e e n -

JASON BRADLEY MORRIS

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S202 of 1999

B e t w e e n -

LEE WEST

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 10.32 AM

Copyright in the High Court of Australia

__________________

MR M.D. AUSTIN: Your Honours, I appear for both applicants. (instructed by Sydney Regional Aboriginal Corporation Legal Service)

MR R.D. ELLIS: I appear for the respondent Crown. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

GUMMOW J: Yes, Mr Austin.

MR AUSTIN: Your Honours, these matters have an unusual history in that they remained in the special leave list after special leave was granted to a fellow applicant, Mundarra Smith and - - -

GUMMOW J: That is right, yes. The point is that they are governed by the outcome in that appeal and it seems to be agreed.

MR ELLIS: Yes, the Crown makes that concession, your Honour.

GUMMOW J: Yes, Mr Ellis. So what should we do?

MR AUSTIN: The only order that can be made in the light of the decision in Smith is that both applicants receive a retrial, on my submission.

GUMMOW J: Have you any short minutes?

MR AUSTIN: No, your Honours.

KIRBY J: You ask, one, that the Court grant special leave to appeal; two, that it allows the appeal; three, that it orders that the judgment of the Court of Criminal Appeal be set aside; and four, that it orders that there be a retrial?

MR AUSTIN: Yes, your Honour.

KIRBY J: That is all that you ask?

MR AUSTIN: That is all we ask.

KIRBY J: And that is in both matters?

MR AUSTIN: In both matters. There is no argument that the convictions could be quashed in the light of Smith so the matters must go back for retrial.

KIRBY J: We would have to add then to the order allowing the appeal from the Court of Criminal Appeal that the conviction be set aside and that there be an order for retrial.

MR AUSTIN: Yes, your Honour.

KIRBY J: Do you agree with those orders, Mr Ellis?

MR ELLIS: Yes, your Honour.

KIRBY J: It is not a consent jurisdiction but it appears that that is appropriate in the light of Mundarra Smith.

GUMMOW J: Yes, that is right.

In each matter special leave will be granted. The appeal will be allowed. The orders of the Court of Criminal Appeal are set aside and in place thereof the conviction will be set aside and there will be a retrial.

Does that deal with it?

MR ELLIS: Thank you, your Honour, yes.

MR AUSTIN: Thank you, your Honour.

AT 10.35 AM THE MATTERS WERE CONCLUDED