The Queen v Marijancevic M116/2001 [2002] HCATrans 457 (13 September 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M116 of 2001

B e t w e e n -

THE QUEEN

Applicant

and

JOSEPH MARIJANCEVIC

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 SEPTEMBER 2002, AT 11.42 AM

Copyright in the High Court of Australia

MR P.A. COGHLAN, QC: If it please the Court, I appear with my learned friend, MS K.E. JUDD, on this application. (instructed by Kay Robertson, Solicitor for Public Prosecutions (Victoria)).

MR S. GILLESPIE-JONES: If it please, your Honours, I appear for the respondent. (instructed by Ferraro Pruscino & Co)

GAUDRON J: Now, I am told you are withdrawing this application, is that correct?

MR COGHLAN: Yes, your Honour. If I could make some very brief remarks about it? It is simply this: irrespective of the point of principle that would seek to be argued on this application and ultimately on an appeal, I have come to the conclusion that the issue of recent possession was such a side wind in this case, in truth, had nothing really to do with it, that the appeal must inevitably succeed.

KIRBY J: That was a point made by the respondent in the submissions.

MR COUGHLAN: It was, your Honour.

KIRBY J: And, maybe, that was what lay behind the request of the respondent that the Crown pay his costs of this application.

MR COGHLAN: Yes.

KIRBY J: Has any arrangement been made in that regard?

MR COGHLAN: No, arrangement, your Honour, no, but I accept, your Honour, on the basis of, I suppose, common sense and now what the authorities say on the subject that an order for costs is inevitable. As a matter of concluding the paperwork, if I could ask my instructing solicitor to hand up a notice of discontinuance.

KIRBY J: It is not usual for us to order costs in a criminal matter.

MR COGHLAN: If my friend is happy with my undertaking on the question of costs, I suspect he would not be concerned - - -

GAUDRON J: Perhaps we could note your undertaking to pay the costs of the application to date, and subject to the undertaking, grant leave to withdraw your application for special leave to appeal.

MR COGHLAN: Yes, the notice of discontinuance has now been filed, your Honour.

GAUDRON J: Yes. Thank you very much, Mr Coghlan. You are happy with that, Mr Gillespie-Jones?

MR GILLESPIE-JONES: I have nothing to say, your Honour.

KIRBY J: You are not happy but you have nothing to say. It is asking too much for counsel to be happy.

GAUDRON J: Yes. We will simply call the next application.

AT 11.45 AM THE MATTER WAS CONCLUDED