Folbigg v The Queen S59/2003 [2003] HCATrans 601 (19 February 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S59 of 2003

B e t w e e n -

KATHLEEN MEGAN FOLBIGG

Applicant

and

THE QUEEN

Respondent

Summons

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 19 FEBRUARY 2003, AT 2.15 PM

Copyright in the High Court of Australia

MR P.R. ZAHRA, SC: If your Honour pleases, I appear for the applicant with my learned friend, MR A.P. COOK. (instructed by Legal Aid Commission of New South Wales)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If your Honour pleases, I appear with my learned friend, MS J.A. QUILTER, for the respondent. (instructed by the S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

HIS HONOUR: Yes, Mr Zahra.

MR ZAHRA: Thank you, your Honour.

HIS HONOUR: Mr Zahra, as you are probably aware, my practice is that on these stay applications you do not get any longer than you would on a special leave application. I have read your submissions. I have read the affidavit. I have read all the papers. So you have 20 minutes to put what you want to put. Thank you.

MR ZAHRA: Thank you, your Honour. Your Honour, I accept that it is incumbent that we argue and bring this matter within the description of "exceptional circumstances", that there is, in fact, a threshold issue which involves the question of the preservation of the rights of the parties and, on the other hand, the question of the balance of the convenience of the Court. In that regard, the Court has indicated in the past that one needs to avoid situations in which the administration of justice in the criminal courts is impeded unduly. Your Honour has an affidavit of Laurel Kay Baglee setting out the background to the trial.

HIS HONOUR: Yes, I have read that.

MR ZAHRA: That is, in fact, accurate. Can it be, however, said that what is not explicit in that history is that there has been no delay in the proceedings up to this point. This was a matter where there were no committal proceedings. The matter was listed for arraignment. The trial date was set on the first arraignment date and the first available trial date was, in fact, given.

HIS HONOUR: Now, I take it that the applicant has been arraigned in the indictment and asked to plead.

MR ZAHRA: Yes, your Honour.

HIS HONOUR: I think it would be preferable not to mention the particular facts of the case if you can avoid it.

MR ZAHRA: Yes, your Honour, I understand that. Your Honour, it is important to note in relation to the background of the proceedings so far that there has been no delay. The matter has proceeded expeditiously. The application for separate trials was made before the trial judge - in fact, flagged at the outset. An agenda was set for disclosure and the application under 5F proceeded at the first available date subsequent to the trial judge's rulings.

HIS HONOUR: Have the trials commenced at all?

MR ZAHRA: No. No, this is not a case of fragmentation in the sense that the trial has not yet commenced. So there has not been any delay. The trial judge, in fact, after he delivered the judgment raised the appropriateness of ventilating the issue pursuant to section 5F which, in fact, we did and we obtained the first available date. The Court of Criminal Appeal reserved and handed down the decision the following week. So this is not a matter where there has been fragmentation. There has not been undue delay. The matter has proceeded expeditiously at the present time and what, in fact, is sought here is the opportunity to ventilate what we submit is an appropriate special leave point and a special leave point that involves significant issues.

Can I indicate to your Honour the substantial basis on which we say that if this Court does not intervene that the rights of the parties will not be reserved. This matter is expected to achieve quite some publicity. There has already been substantial publicity, but the nature of the trial, the reporting of this matter is likely to be daily in both the print and television media. She, in fact, is presently on bail. She will be entering and exiting the court. One would expect that images will be portrayed of her in the media. Her name will become commonplace in the community. This is not a case that if the Court subsequently finds error, that the Court could go to remedies that were suggested in Murphy, where the matter might be delayed so that the memories of prospective jurors might be somewhat faded.

HIS HONOUR: Well, that might be to your client's advantage. It may be that the Court would take the view that a fair trial would not be possible.

MR ZAHRA: Yes. I was about to submit, your Honour, that that is no doubt another consideration because "the parties" also means the Crown and that may not be in the community's interest where the proceedings are stayed. It may not be in the community's interest that the matters do not proceed to trial.

HIS HONOUR: But is this not something of a red herring because if your argument is correct, is there a case in respect of any of the individual cases? It does not seem a real possibility on your argument.

MR ZAHRA: Well, up until the present time, we have not been told by the Crown that they do not intend to proceed with individual counts. So we proceed on the basis that we expect that the trials will proceed individually. So even if the trials were to proceed individually, the prospect is that the accused's name will be very prominent in the community. It will be attended by much publicity.

The other danger is no doubt the danger your Honour has implicitly referred to a moment ago, and that is that once her name is typed into the Internet the reporting, in fact, of the case will be revealed. There is no mechanism by which the Court can exclude the major media outlets from removing the reporting of the matter. Even if that were so in this country, the matter is likely to achieve international publicity, particularly in the United Kingdom. There was a case very much the same as this, the matter of Sally Clark, which continues to be reported in the media, especially in recent times. So the danger of prejudice because the information about the number of counts will be very much in the public domain. That would include, obviously, even if the trials were to proceed separately, just the physical image of the accused which will become familiar, let alone the prospect of the name also becoming somewhat common knowledge.

Can I take your Honour to the questions of the special leave point. As the submissions make clear, that the special leave point will involve a consideration of the appropriate test, particularly under section 101, the question of whether the common law statement in Pfennig - - -

HIS HONOUR: Yes, but you have succeeded on that point. It seems to me that your big difficulty in this, on a special leave application, is that the case concerns an application of principle given your success before Justice Wood in the Court of Criminal Appeal. So it is a question that both courts applied Pfennig, a proposition, I have to say, I would regard as rather doubtful, and you succeeded on that point. Thereafter it seems to be nothing else but an application of the principle.

MR ZAHRA: I understand what your Honour has said in the matter of Pfennig, but underlying Pfennig is the rationale that the prejudice in propensity cases, the fact that capacity of prejudice of a high order, that, in fact, is the rationale of Pfennig. No doubt that they have established a rule, but underlying that is, in fact, a recognition of the capacity of prejudice of a high order. In fact, that is the terminology which I have taken from Pfennig. Now, this case raises the issue as to how the question of prejudice to be assessed, particularly in a circumstantial case. So putting aside - - -

HIS HONOUR: You have to look at the statute. I mean, I believe I know as much about the law of evidence as most people, but it is an invitation to error to start looking at this Act in terms of the common law rules of evidence. You have to give effect to the statute.

MR ZAHRA: Yes. Your Honour, there have been a number of significant decisions in this State concerning that particular question. The uniform evidence law obviously operates federally. It has been adopted in Tasmania and the ACT and I can take your Honour to a decision in the ACT where this particular issue also was addressed.

HIS HONOUR: Yes, there is a strong judgment of Justice Madgwick. Is that the judgment you are referring to?

MR ZAHRA: Yes, in W. So it is a matter that is of general importance.

HIS HONOUR: If I remember rightly, he thought that my dissenting judgment was - - -

MR ZAHRA: Yes.

HIS HONOUR: But leave that aside, I do not know that Pfennig has much to do with the case.

MR ZAHRA: Your Honour, might I say this - - -

HIS HONOUR: You have succeeded on this point.

MR ZAHRA: Yes, but might I say this: the underlying rationale of Pfennig is the recognition that propensity evidence has this capacity of a high order and the question then is how that particular rationale is applied. This case raises very clearly a number of issues about the assessment of the prejudice. Now, it raises an issue of the assessment of prejudice in a circumstantial case.

HIS HONOUR: But what is the prejudice? This case does not seem to me to have anything to do with propensity. It is a Makin or Smith, "Brides in the Bath" Case. It is probability reasoning. Propensity is only established by the verdict.

MR ZAHRA: Yes. Your Honour, I accept that. In fact, our primary argument has been that this case is very much the same as Perry, that at the end of the day there is a question raised as to whether in the ultimate process of the resolution of this matter one has to assume the guilt in one of the matters.

HIS HONOUR: It is more like Plomp, is it not? Are you familiar with Plomp?

MR ZAHRA: Yes, your Honour.

HIS HONOUR: Yes. It is more like Plomp. You had little more than motive and the fact that the wife disappeared in the surf in Plomp.

MR ZAHRA: Yes. Your Honour, the issue as to whether the Crown can identify a particular starting point and whether the Crown can identify a way that this case is ultimately to be placed before the jury we say is indicative of real prejudice. This issue has been squarely raised before the trial judge from the outset and raised also in the New South Wales Court of Criminal Appeal.

HIS HONOUR: Yes, but is a question of what you mean by "prejudice". In probability cases prejudice is pretty low down on the scale. It is in the pure propensity cases that prejudice usually raises its head, for the reason I mentioned in Pfennig, namely it is the verdict that establishes the propensity. The dangers of these cases, as Justice Murphy pointed out - I think it was in Perry or one of those cases - is that juries may think that it just could not be coincidences, whereas coincidences happen, perhaps more frequently than laypeople tend to think. But that is the only possible prejudice, it seems to me, that you could point to.

MR ZAHRA: Your Honour, the prejudice here is that ultimately that no appropriate directions can be given to the jury as to how they are going to apply the coincidence evidence in the present case.

HIS HONOUR: That would mean the evidence is just inadmissible, full stop.

MR ZAHRA: Well, the Court of Criminal Appeal did not go on to address that issue. In fact, as we say in our written submissions, the ultimate test, in fact, is quite difficult to understand. Can I hand to your Honour - there were some errors in the transcript which we have had corrected - can I hand to your Honour - - -

HIS HONOUR: Just concentrate on your big points, Mr Zahra. Do not worry about transcript trivialities.

MR ZAHRA: Well, yes, but, your Honour, when Mr Justice Hodgson referred to the direction that was ultimately contained in the judgment, his Honour Mr Justice Sully had indicated that, meaning no disrespect to the presiding judge, that his concerns as a trial judge that:

by the time one got half way through that direction, the jury would be totally lost and the first thing that would happen after the jury went out is that you get a note asking for some clarification. I think the way his Honour puts it, with respect, points out the difficulty.

This is at page 23 at around line 25 and following. This was, in fact, after his Honour articulated - - -

HIS HONOUR: Are you talking about the judgment or - - -

MR ZAHRA: Of the oral argument.

HIS HONOUR: My strong advice to you is not to pay too much attention to what judges say during oral argument.

MR ZAHRA: Yes, but this indicates what we say is that one does need to address ultimately how this matter is going to be put to the jury and that there is some assistance in the judgment, but the Court of Criminal Appeal had quite some difficulty. In fact, in the corrected transcript my friend was clearly asked by his Honour Mr Justice Sully to the effect of, "Can you give the jury a simple resume of the facts and indicate how the relevant principles of law are related to them?" And my friend indicated, "If only I could frame that direction in the way your Honour puts it". So my friend was unable to - - -

HIS HONOUR: The proposition might be in better hands when Mr Justice Wood directs the jury.

MR ZAHRA: Yes, but at this stage - your Honour, the argument was mounted also before his Honour and his Honour did not address the argument in his judgment, indicating that that was a matter to be left for the closing addresses. So where we presently are is that, in fact, we are going to face a trial where we do not know how the Crown is ultimately going to put the case. We do not know whether they are starting with any particular case or not.

HIS HONOUR: She can make an application after the Crown opens, at the conclusion of the Crown's opening address, but ultimately the jury will be directed concerning what the logisticians call positive and negative resemblances in each particular case. The more positive resemblances between each incident, the stronger is the inference that can be drawn from them.

MR ZAHRA: The difficulty is what the jury are to be told in relation to applying the evidence of coincidence in this case, from one case to the other. That, in fact, is the ultimate indicator of prejudice.

HIS HONOUR: But, Mr Zahra, the message needs to go out to the criminal Bar, as I hope it has gone out to the civil Bar, that we do not sit here to give advisory opinions. Ultimately our task is to determine matters within the meaning of the Constitution, to exercise judicial power, which means to determine the rights of the parties, and evidence questions pre-trial are very unsatisfactory vehicles.

MR ZAHRA: I accept that. This application is not seeking an advisory ruling. This application is raising the ultimate concern that the test may not have been appropriately applied. Bear in mind we are at a position where no one can, in fact, articulate how the case is ultimately to be put to the jury and how, in fact, the coincidence evidence is to be applied.

HIS HONOUR: Well, that only makes your special leave application all the more difficult, because you are asking for the Court to act on a hypothetical basis. You only have to have a couple of pieces of evidence and the whole complexion of the case changes.

MR ZAHRA: Your Honour, this is not a case where there will be additional witnesses or that the case will rise or fall on questions of credibility of witnesses. The evidence has been provided. It is not going to dramatically change during the course of the trial. Whatever evidence is there should be able to be articulated.

HIS HONOUR: How do you know? How do you know? Were these witnesses cross-examined before Justice Wood?

MR ZAHRA: Your Honour, the evidence falls into the following categories. Firstly, there are some civilian witnesses which really take the matter nowhere. There is no evidence of poor relationship with the child apart from some very small incidents. The medical evidence - we have been provided with extensive reports. We do not expect the nature of that evidence to change. There is a record of interview. There are some diaries. So, your Honour, the nature of the evidence is not going to change dramatically during the course of the trial. So at the present time we can make quite a good judgment on the fact that this is going to be the evidence during the course of the trial. We can make an appropriate analysis. We can conclude on that basis, despite this matter being raised before the trial judge and before the Court of Criminal Appeal, that ultimately the matter was not addressed, despite the request made by Mr Justice Sully during the course of oral argument.

The process has not yet been identified and we say the very fact that that process cannot be identified indicates error. We are not seeking an advisory opinion, but we say that that in itself indicates error because how can the exercise under 101(2) be carried out when one cannot identify what the Crown case will be, how the Crown case will be presented to the jury.

HIS HONOUR: That will be a question for the trial judge to make up his or her mind. I assume it will be Justice Wood. Is Justice Wood going to hear the case?

MR ZAHRA: That is our understanding. But, your Honour, despite this matter being raised before Justice Wood, that has not been addressed. It is an issue that has been squarely raised and we say that that manifests the error.

HIS HONOUR: But it is hardly a special leave point in a criminal trial. I mean, error is not a ground for special leave.

MR ZAHRA: I accept that, but in this particular case there are special leave points, particularly with the question of general importance, particularly in the interpretation of the test under section 101. The relevance of the test when applied to circumstantial evidence, these were matters that were clearly raised by Mr Justice Hodgson. It also raises the issue of the application of Perry in a case involving coincidence evidence. So there are substantial issues to be heard on the special leave application. In fact, what we are obviously seeking is the opportunity to put those arguments in a special leave application. So it goes beyond just trying to determine whether Pfennig applies to the statutory provisions, but it also raises issues of the appropriate test where the case is substantially circumstantial evidence.

HIS HONOUR: But the appropriate test is set out in the statute.

MR ZAHRA: Your Honour, the difficulty of the application of the test to circumstantial evidence is evident in the course of argument in this matter. His Honour referred to his own judgments in WRC and Joiner, but I can take your Honour to some of the oral argument where his Honour had indicated that maybe what he had said in WRC and Joiner may not necessarily be what is the appropriate test in a case where it is substantially one of circumstantial evidence. I could take your Honour to that area, if your Honour wishes. But it is more than raising this issue of the interpretation of 101(2) and whether the Pfennig test, which is obviously pre the Evidence Act 1995 , applies, but also issues relating to the application of the test in a wholly circumstantial case and how it applies in a case which is very much what we say and what we have, in fact, argued the same, in fact, as Perry.

HIS HONOUR: Mr Zahra, the Court would be in a far better position to evaluate that after all the evidence is in in the case, including, if your client gives evidence, her evidence. The thing you have to remember about this is that one of the reasons the Court does not intervene at an interlocutory stage in criminal proceedings is because the issues you want to raise now may never arise because your client is acquitted.

MR ZAHRA: Your Honour, they will arise during the course of this trial and it follows - - -

HIS HONOUR: Well, of they course they will.

MR ZAHRA: - - - that the jury would need to be directed.

HIS HONOUR: We can only hear 50 or 60 cases a year, including constitutional cases. We cannot be taking on cases at an interlocutory stage when the issue that you seek to ventilate may never prove decisive. If it does, you have a remedy.

MR ZAHRA: The difficulty is that it would be difficult to preserve the rights of the accused to a fair trial because of the publicity. The information will be so much in the public domain that one could not hear the matters separately without the prospect of jurors knowing about the accused and knowing about the detailed history of the evidence in this trial. That, in fact, is the ultimate problem.

HIS HONOUR: Yes. Well, I think your 20 minutes are up, thank you, Mr Zahra. Yes, I do not want to hear you, Mr Solicitor.

The applicant in this summons has been charged with four offences contained in one indictment. On 29 November 2002, Mr Justice Wood, the Chief Justice at Common Law in New South Wales, dismissed her application to have a trial of each offence heard separately. The application for separate trials was based on the proposition that the evidence in respect of each alleged offence was not admissible in respect of each other offence. His Honour, as I said, rejected that argument and dismissed the application.

On 6 February 2003, the Court of Criminal Appeal heard an appeal against the decision of Justice Wood. On 13 February this year, it dismissed the appeal but, at the request of the applicant, ordered that her trial which was, I understand, to begin on 10 February be stayed until 24 February 2003 to enable her to apply for special leave to this Court.

The applicant has subsequently filed a special leave application. I have read the application and the concise statement of the special leave application and other documents relied on in support of it. In this summons, the applicant seeks an order that her trial be stayed until further order of this Court and, in particular, be stayed until the hearing of the special leave application.

On the special leave application, the applicant will argue that the Crown case suffers from the flaw identified in Perry v The Queen (1982) 150 CLR 580. That is to say, that evidence showing propensity is not admissible if its relevance is dependent on assuming the guilt of the accused in respect of the offence charged. The applicant submits, in effect, that in the absence of direct proof that the applicant committed the offences the Crown will ask the jury to draw an inference based on the unlikelihood of four offences being committed by the applicant otherwise than by design and the chain of reasoning assumes her guilt on each offence.

The applicant contends that the case raises significant legal issues concerning the interaction of sections 97, 98 and 101 of the Evidence Act (NSW). She argues that some confusion concerning the application of Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and its continued operation exists within the New South Wales Court of Criminal Appeal. She refers to decisions such as R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 and Colby [1999] NSWCCA 261 as showing that this is so.

The applicant submits that the balance of convenience favours the granting of the stay. She submits that granting a stay will not prejudice the Crown. She points out that the case is set down for eight to 12 weeks and involves a large number of witnesses. She points out that, if the trial was to go ahead with all four charges, the resulting publicity would be so great that she would be prevented from being restored to her former position and could not obtain a fair trial in respect of the individual charges if this Court should later find that the charges should have been tried separately.

The applicant identifies a number of alleged errors in the Court of Criminal Appeal decision. The principal ones are first stating that, in a circumstantial case like this, while each piece of evidence may be inconclusive, the prosecution may still succeed if the whole combination of circumstances is capable of proving intent. The applicant submits that, while this approach might be appropriate in a straightforward circumstantial evidence case, it is implicit from the decision of this Court in Perry to which I referred that it is impermissible in cases involving propensity evidence. I might interpolate to say that I am far from convinced that this is a case of propensity evidence. Rather, it seems to me more like a probability case in which the accused's propensity is established by the verdict rather than by proof of prior acts revealing a propensity.

The second of the principal errors identified is that the Court of Criminal Appeal seems to suggest that propensity evidence may be admissible when there is otherwise some deficiency of proof of an applicant's responsibility for the offences. The applicant contends that this tends to invite the tender of propensity evidence in cases where the prosecution's proof is weak. She says that the distinction is illogical and unfounded in authority.

Finally, the applicant submits that the case involves questions concerning what constitutes prejudice for the purposes of section 101 of the Evidence Act and that both the trial judge and the Court of Criminal Appeal failed adequately to deal with this issue.

On numerous occasions in recent years, this Court has said that it is only in exceptional circumstances that it will stay criminal proceedings, particularly before special leave to appeal has been granted. In Grassby v The Queen (1989) 63 ALJR 348 Chief Justice Mason noted that an applicant for a stay of proceedings pending application for special leave to appeal:

has the considerable burden of showing, first, that it is an appropriate case for the grant of special leave, in particular that it is proper for this Court to intervene at what is an interlocutory stage of the criminal process . . . and secondly, that the decisions of the Court of Criminal Appeal are incorrect.

In Beljajev v The Director of Public Prosecutions [1991] HCA 16; (1991) 173 CLR 28 at 31 Justice Brennan noted:

It is imperative that the jurisdiction to grant a stay be recognized as extraordinary and that applications seeking to invoke that jurisdiction are not made simply in order to secure the intervention of this Court in the preservation of a status quo . . . This must be so, particularly in the case of interlocutory applications in a criminal jurisdiction.

His Honour went on to say that:

The jurisdiction of this Court is not fitted to the supervision of interlocutory processes of a criminal trial.

As I have said, the applicant seeks to stay her trial based on the arguments to which I have referred. In reality her position is based on a claim that the trial judge and the Court of Criminal Appeal misapplied the law in relation to tendency evidence under the Evidence Act in the light of decisions such as Perry and Pfennig v The Queen.

In his submissions this afternoon, Mr Zahra recognised that this Court will only intervene to stay a criminal trial in exceptional circumstances, but he contended that the circumstances of this case are exceptional. As I have already said, his point is that, if separate trials should have been ordered and this Court subsequently finds that is so, a retrial will be required with considerable time and expense. Furthermore, he says the plaintiff's trials in the future in respect of the separate offences would be prejudiced by reason of the wide publicity that will be given to the evidence in the present case. However, the applicant's argument, in my view, is insufficient to overcome this Court's reluctance to allow special leave to appeal from an interlocutory decision and, in particular, to intervene in the criminal processes of the State before verdict.

In Goldsmith v The Queen (1993) 67 ALJR 513, Acting Chief Justice Brennan, delivering the judgment of Justice Gaudron and myself, said:

An application for special leave to appeal will not readily be granted to canvass a question arising at an interlocutory stage of a criminal proceeding, nor will special leave be readily granted to consider a question of law when the intermediate court decided the question not on appeal but on an application for judicial review when the question relates to the procedure to be followed in the course of an exercise of jurisdiction by the primary tribunal.

Similarly, in Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338 and at [1989] HCA 68; 64 ALJR 140 Chief Justice Mason, delivering the judgment of himself and Justices Toohey and Gaudron, said that:

The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us. It is a factor which should . . . inhibit this Court from granting special leave to appeal.

I might point out that nearly 20 years ago in Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 the Full Court of the Federal Court, consisting of Chief Justice Bowen, Justice Sheppard and Justice Fitzgerald, noted that there was "a considerable body of authoritative judicial opinion that exceptional circumstances will generally be required before a superior court will consider interfering in committal proceedings, particularly at an interlocutory stage."

In this case, it appears to me that the Court of Criminal Appeal carefully considered the relevant authorities. That court accepted the applicant's contention that the Pfennig test applied to section 101 of the Evidence Act, a proposition that I think is highly debatable. However, the court still found that the trial judge had not erred in holding that the evidence of each alleged offence was admissible in respect of each other offence. The Court of Criminal Appeal found that the trial judge based his decision on admissibility on expert evidence and not on mere statistical considerations. Indeed, the court said that, even if it was only the occurrence of all four offences in similar circumstances that could prove that the applicant was responsible for any one of them, the Pfennig test might still be satisfied.

Be that as it may, given that the applicant succeeded in persuading the trial judge and the Court of Criminal Appeal that Pfennig applies, the application for special leave does not seem to me, with great respect, to raise any major questions of principle. Rather, it seems to be concerned with the application of established principles in particular circumstances and with the application of a statutory test to the particular facts of the case. This is an insufficient basis on which to grant the stay sought by the applicant and particularly in the light of the Court's general approach to interfering in interlocutory proceedings, particularly in interlocutory criminal proceedings.

I do not think the prospects of special leave being granted are high. At all events, they are not sufficiently high to warrant staying the trial. Of course, a wrongful application of principle may result in a miscarriage of justice and may attract the grant of special leave to appeal by this Court. But, in determining whether the case gives rise to a miscarriage of justice, the Court is always in a better position to evaluate whether a miscarriage has occurred after examining all the evidence than it is when determining a preliminary motion on facts which are assumed will be the subject of proof at the trial.

In all the circumstances, I do not think this is such an exceptional case that warrants the Court granting a stay of the proceedings. I dismiss the summons.

Is there anything further?

MR ZAHRA: No, your Honour.

HIS HONOUR: Yes, very well. Adjourn the Court.

AT 2.59 PM THE MATTER WAS CONCLUDED