Baker v The Queen [2011] HCATrans 304 (28 October 2011)

Last Updated: 1 November 2011

[2011] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M67 of 2011

B e t w e e n -

KHALID BAKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 OCTOBER 2011, AT 11.45 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER: May it please the Court, I appear on behalf of the applicant. (instructed by Doogue & O’Brien)

MR D.A. TRAPNELL, SC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, on behalf of the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Croucher.

MR CROUCHER: Your Honours, in Bannon v The Queen, Justice Deane at page 15 of the judgment said this:

it appears to me to be strongly arguable that the basic requirement of fairness dictates that, in circumstances where the Crown has seen fit to bring a person (the first accused) to a joint trial with another accused and to place before the jury material which is tendered only against that other accused but which is supportive of the innocence of the first accused, the trial judge have a discretion to direct that that material, even though otherwise inadmissible in the trial of the first accused, be evidence in that trial at the instance of the first accused if, in all the circumstances of the case, the trial judge considers that fairness to the first accused and the interests of the administration of justice support the conclusion that such a direction be given.

KIEFEL J: There might be good reason to consider what his Honour said in Bannon, particularly in light of the approach apparently taken in Queensland which did not have regard to what was said in Bannon, but the question here is whether or not this particular case is the appropriate vehicle I think, Mr Croucher.

MR CROUCHER: Indeed, it is, for these reasons.

KIEFEL J: Really, it comes down to the question whether or not the evidence was equivocal, does it not?

MR CROUCHER: Well, in my submission, the evidence was this. At trial the Crown led against the applicant’s co-accused, LM, the following two sets of admissions. Firstly, it was said to the police he admitted that he had pushed the deceased, and those passages are helpfully summarised in the respondent’s summary of argument at pages 405 and 406 of the application book.

KIEFEL J: The other one was the admission to Asfer and Morgan to “see what you made me do”.

MR CROUCHER: To Mr Faulkner?

KIEFEL J: Yes, that is right.

MR CROUCHER: That was made to Mr Faulkner, yes. Yes, “Look what you made me do”.

KIEFEL J: Does it not follow here from – I mean, if one had any doubt about whether they were equivocal in their nature, that can be considered. The jury clearly thought they were equivocal.

MR CROUCHER: Not necessarily, your Honour.

KIEFEL J: They acquitted LM.

MR CROUCHER: Indeed, they did, but it is important to recognise the function and effect of the burden and standard of proof. No doubt the case effectively was conducted as two competing versions; either the applicant was the one who was responsible for pushing the man, the deceased, or it was the co-accused, LM. That is the way the five eye witnesses divided, if you like, on that issue.

KIEFEL J: Yes.

MR CROUCHER: The nature of the standard and burden of proof is such that the jury may have thought, well, it is likely, even highly likely perhaps, but enough as to say likely, that Mr LM’s admission was true, but that is not enough. A jury has to be satisfied beyond reasonable doubt, as against LM, that his admission was a true admission to actually pushing the man at the crucial time in order that he be convicted. So all the acquittal means is the jury were not satisfied beyond reasonable doubt of that fact. If the same jury were told in respect of the co-accused, the applicant, you are in fact - - -

FRENCH CJ: It is enough that it raises a doubt, you say?

MR CROUCHER: Indeed, you are allowed to consider the admissions made by Mr LM. It is enough that it raises a doubt and the man is acquitted. In fact the acquittal makes it a better vehicle because there can be no argument about complicity. It can only mean that the conviction sustained by the applicant in this case was on the basis that he was directly responsible for pushing the man through the window, in which case the co-accused’s admissions, even if they only created a doubt, were highly relevant and therefore would have led to an acquittal if they created a doubt and were allowed to be used in the trial of the applicant. So, in my respectful submission, it is the right vehicle to consider precisely the questions that are raised. First, furthermore, counsel took the point before the trial judge. He was right to do so. The trial judge, consistent with authority, of course, had to refuse the application.

KIEFEL J: Would not the jury have to be satisfied about the admission, or implied admissions, to a very high standard?

MR CROUCHER: As against LM, yes.

KIEFEL J: Yes.

MR CROUCHER: Not as against - - -

KIEFEL J: Not as against him just - - -

MR CROUCHER: No, and Justice Deane makes that point in his dictum. So, as I say, it is the vehicle for it. What is more, it has a particular extra poignancy in this case because not only is it an admission to the police that could have been used and should have been used in favour of the applicant, but it was corroborative of the accounts of the two witnesses who were challenged, Asfer and Masonga, and their versions were corroborative of the truth of the confession – or admission, I should say. So the jury ought to have been told those things, and that is what counsel was asking for, but, of course, the judge was adverting to authority and said, I cannot do that.

The other thing that is significant about this case as compared with Bannon is that, unlike in Bannon where trial counsel expressly in his final address relied on the admissions of the co-accused in his final address and the trial judge did not disabuse the jury of the incorrectness at law of that approach, here the trial counsel confessed to the jury, saying, well, that is the way it is, I cannot rely on that, and the judge expressly told the jury, no, that is right, you cannot rely on that, the evidence of Mr LM’s admissions are not evidence at all in the case of the applicant.

Bannon, of course, failed principally because of that point because in the end it was not a suitable vehicle, if you like – even though it went to the High Court, it was not a suitable vehicle ultimately to consider the contours or apply what might be an exception to the hearsay rule. Plus, as well in Bannon, the point that Justice Deane made about some broader discretion, that was not agitated it seems in Bannon itself, whereas it is expressly what was agitated here on behalf of the applicant at trial.

Next, another reason that special leave should be granted is that it simply cannot be said by the Crown simply by reason of the verdict that LM’s admissions were unreliable. They were led by the Crown in proof of their case against LM without objection by LM or his counsel. The theory of the admissibility of admissions as an exception to the hearsay rule is that people are unlikely to make admissions against interests unless they are true.

KIEFEL J: Did Justice Deane say anything in Bannon about the extent to which the admissions have to be probative of innocence to be an exception to the hearsay rule?

MR CROUCHER: Well, he accepted what the balance of the Court said about the other heads of potential admissibility when the Court considered a reliability version, admission against penal interest type of version and things like that, but insofar as this particular head of potential admissibility, his Honour really dealt with the fairness of it and, as I say, dealt expressly with the point that I have made already, that it does not have to be that you have to prove beyond reasonable doubt the admission before it be used in your favour.

KIEFEL J: No, but you would have to think that it would have some sufficiently probative quality to be consistent within itself.

MR CROUCHER: Yes, but have a look at it, your Honour - - -

KIEFEL J: If it is perfectly equivocal, it might not even get to that - - -

MR CROUCHER: But it was not perfectly equivocal, your Honour. At page 405 of the application book he says this at about line 8:

I grabbed him and pushed him. I turned around and kept walking. By the time I got downstairs, the guy was on – on the pavement . . . I – I think he fell through the window.

. . .

Did you see him go out the window?

No.

. . .

How – how did you know it was you that pushed him out the window in that case?

‘Cos I – I’m – I knew the – I knew the face, the guy.

Okay. So, you’re saying you were punched once?

Yeah.

Then you’ve pushed him?

Yeah.

And you didn’t see him go out the window, you didn’t hear anything and you’ve turned away and walked out?

Yep.

. . .

Okay. It’s then alleged that you have gone to the male who was thrown out of the window, punched him once in the face and then said something to him - - - ?

What? No.

You’ve then punched him again in the face and then you’ve pushed him out of the window.

No. That is not – that’s not how it happened at all.

. . .

You tell me you’ve done something terrible but then you say all you did was push a guy away who punched you.

Well, I’m assuming that I did something terrible because at – at – as – I was the only person to have any contact with him at last, from – from – from what I’ve seen, so I’m only assuming that this guy is badly injured from me pushing him.

KIEFEL J: That is it, he is assuming he has pushed him.

MR CROUCHER: Well, yes, but, your Honour, that is very powerful evidence against him. The jury, for the reasons your Honour is probably considering at the moment, were not prepared to be satisfied beyond reasonable doubt that that was an admission - - -

KIEFEL J: “I pushed him and therefore I assume that I pushed him through the window” in the middle of a fracas.

MR CROUCHER: Yes, but there is more to it than that though, your Honour. There is two other people who have said they saw that sort of behaviour from this man, so it is corroborated in that sense and their evidence corroborates the version which would suit the applicant. Plus there is the evidence that he said to the other man, Mr Faulkner, in the car, “Look what you made me do”.

KIEFEL J: Well, that does not tell you what he did.

MR CROUCHER: But in context where he is admitting he has done something terrible - - -

KIEFEL J: You have to read the two together to get your - - -

MR CROUCHER: I accept all that, your Honour, but it is very important though – I am coming back to this point that I made before, your Honour – that it is only reasonable doubt that matters for the purposes of the applicant and if this was capable of raising a reasonable doubt, then that is all that is needed for the applicant’s purposes.

KIEFEL J: Well, that is the question, is it not? What level does it have to be to raise a doubt?

MR CROUCHER: That is a question for this Court though. Plainly, that material is sufficient to raise a doubt. A jury might say, no, I am satisfied beyond reasonable doubt that that is not an admission, but that is a different thing from saying, we are not satisfied beyond reasonable doubt in the case of LM, but it is the opposite end of the spectrum. Now, the point I was making before is that the theory of admissions is that, of course, people do not make admissions against interest unless they are likely to be true, but if they are true for the Crown’s purposes, or potentially true, then they must be true for the applicant’s purposes as well.

FRENCH CJ: In the statement to the police there is a bit of toing-and-froing on the question of whether he pushed and how hard he pushed and how close they were to the window and so forth and he seems to be offering almost a guilty inference against himself without admitting to an awareness of having done that. You say though, notwithstanding, if you like, the internal inconsistencies in the statement, there is enough there to raise the possibility that reasonable doubt might have been generated in the case against your client.

MR CROUCHER: Yes, and that is all it takes, your Honour, and that is one of the questions that this Court needs to consider in taking this matter on. It is also put against me the fact that we now have a uniform evidence law in Victoria somehow denies the utility, I suppose, of special leave, but, of course, this man, his trial was governed by the common law. I notice that in Justice McHugh’s judgment he mentions that section 65 of the Evidence Act (Cth), which of course is picked up by our Evidence Act, one of the four jurisdictions that has the uniform Evidence Act, applies anyway, so, of course, it would become relevant on a retrial if there were a retrial. Queensland, of course, as was observed before, seems to have developed an exception that is applicable in this area. There are a lot of States in respect of which this is still an important question and it is of grave importance to this man’s case because this was why - - -

KIEFEL J: Mr Croucher, just going back to Bannon, the words used by Justice Deane is if the trial judge considered that the evidence was supportive of the innocence of the first accused, which suggests that the jury is able to actually take a positive view of it. So if the evidence was equivocal, it would not really qualify, would it?

MR CROUCHER: Well, no, his Honour at the foot of page 14, your Honour - - -

KIEFEL J: If it could be put no higher than if it was equivocal.

MR CROUCHER: No. Could I take you to the foot of page 14 where his Honour says in the second last paragraph, at about point 75 of the page:

The point of the examples is simply to demonstrate that, in circumstances where the Crown has seen fit to proceed against two accused persons jointly and to lead particular evidence on the joint trial against one only of them, a situation can arguably arise in which ordinary considerations of fairness would be affronted and the administration of criminal justice mocked if the other accused were precluded from relying upon that evidence if it supported his or her innocence or raised a doubt about his or her guilt.

So he is clearly contemplating a lower threshold as a function of the burden and standard of proof.

FRENCH CJ: Was there cross-examination of the co-accused on behalf of your client?

MR CROUCHER: Neither gave evidence.

FRENCH CJ: Neither of them?

MR CROUCHER: No. Also at page 15 of Justice Deane’s judgment his Honour said this:

The central prescript of our criminal law is that no person should be convicted of a crime unless his or her guilt is established

beyond reasonable doubt after a fair trial according to law. The specific content of the requirement of a fair trial may vary with changing circumstances, including contemporary standards and perceptions. When it appears that judge-made rules of evidence or procedure conflict, or are liable to conflict, with the basic requirements of fairness, it is a function of a final appellate court, such as this Court, to address the question whether those rules should be altered or adjusted to avoid such conflict.

This is the case, your Honours, in which to resolve that conflict. If the Court pleases.

FRENCH CJ: Yes, Mr Trapnell.

MR TRAPNELL: If it please the Court. It is submitted that even if this Court were minded to reconsider or explain its decision in Bannon v The Queen, this is not a suitable vehicle for such a case for four reasons. Firstly, the two so-called admissions – I call them two in the sense in the car and in the record of interview – are not clear and unambiguous admissions to having committed the crime of which the applicant stands convicted. The representations in the car are a very slim basis for anything, in my submission. The witness, Asfer, gave evidence that someone might have said something and I think it might have been [B] and that is as high as he puts it.

The more significant evidence in the respondent’s submission comes from the witness, Morgan, who gave evidence that [B] told Ali, being a reference to LM being [B] and Ali being Mr Faulkner, this is what Morgan said, “See what you’ve done. See what you put us through.” Now, that is [B] saying to Ali, “See what you, Ali, have done”, not an admission of having done anything himself. It was then put to Mr Morgan in cross-examination that in fact it was “See what you made me do”, and he said, no, that was not right and resiled from his police statements, his police statement was put to him, and he confirmed that that was what he said in his statement but that was not his evidence before the jury. His evidence before the jury finally was “See what you’ve done. See what you’ve put us through”, that is, Morgan’s evidence of what [B] said to Ali. Now, on that evidence the jury could only, in our submission, find that at the very best it is extremely unclear, but to the extent that there is any admission there, it is directed towards Ali being the cause of all of their problems.

Now, if we move to the next group of so-called admissions, it is the representations made in the record of interview and it is submitted that they also do not amount to an admission to having committed the crime. The effect of all of that is as follows. As LM and a friend are leaving the party LM is pushing the friend down the stairs. In his record of interview LM refused to identify that friend, but it is submitted that it is clear from his answers to questions 363 to 365 at application book 457 that that friend is not the applicant, and I could take the Court to that.

KIEFEL J: Does this affect the Bannon question though?

MR TRAPNELL: It affects the appropriateness of this case as being a suitable vehicle because it is the respondent’s submission that there is not here any admissions which could have any probative value, in our submission.

KIEFEL J: Well, that is the question though, is it not, whether or not they go under what was said in Bannon, they would go to the jury anyway for them to consider whether or not they have probative value.

MR TRAPNELL: But this Court would have to, having looked at Bannon, then look at this case, and if having looked at Bannon, then found that in this case it could not possibly have had any effect at all, it becomes, it is submitted, a fruitless exercise.

KIEFEL J: Yes, all right.

MR TRAPNELL: That is the whole reason it is submitted that this - - -

FRENCH CJ: The question may be whether – in Jones we said Bannon left the question open.

MR TRAPNELL: Yes.

FRENCH CJ: So Bannon may not be the last word on it. We do not operate on the assumption that Bannon has definitively determined the criteria for admissibility if admissibility be possible.

MR TRAPNELL: But, in my submission, a case would have to be argued against a factual substratum.

FRENCH CJ: Let us say the factual substratum here is you have a fairly lengthy record of interview with the police, would you accept that parts of it are arguably able to be construed as amounting to an admission or you say that is simply not open?

MR TRAPNELL: Not open, your Honour. In my submission, when it is looked at in its entirety, it comes down to no more than that he – as he was leaving with a friend who, in my submission, is not the applicant, he was hit by the deceased to the side of the body, head, some part of his side, it says from the side to the side. He pushed that person away. It is a moderate push. He describes the push in a number of answers as being with moderate force. At the time he is one to two metres away from the window. He does not see the deceased go through the window. He does not hear the window break. He simply assumes that he was responsible for the deceased going through the window. But then at questions 348 on application book page 453 and 360 of application book page 456, he says that the victim could have slipped on bottles. That is highly equivocal evidence.

FRENCH CJ: Yes. Let us go back to 436 and 205, which is what Mr Croucher took us to earlier:

How – how did you know it was you that pushed him out the window in that case?

MR TRAPNELL: Yes, but his answer to that is, he is not responsive, in my submission, to the question because his answer is how did he know that this was the guy that he pushed? That is the interpretation, in my submission, of that answer, because he had seen him earlier and - - -

FRENCH CJ: He was out the window.

MR TRAPNELL: He does not anywhere, in my submission, admit to pushing him out the window in terms and, in my submission, the context in which he makes statements is that he has assumed that without that being necessarily the case and in fact says at page 444, question 274 – I will go back to 273 to give it context:

Okay. Did you think to hang around to tell police what had happened?

No.

Why didn’t you do that?

‘Cos it was somethin’ terrible I did.

Okay. We –, once again, I – I’m just a bit confused by this.

Well, the police officer is confused too, your Honour –

You tell me you’ve done something terrible but then you say all you did was push a guy away who punched you.

Well, I’m assuming that I did something terrible because at – at – as - I was the only person to have any contact with him at last, from – from – from what I’ve seen, so I’m only assuming that this guy is badly injured from me pushing him. And from what you – the information I’ve been told by you.

But then if you go to 453 at question 348:

Would you agree that it would take quite some force to push the man so that he f –, so that he fell backwards and – a metre and a half then through the window?

No re –, I don’t know, ‘cos th –, the – the wet was – floor –

presumably that is the “floor was wet” –

there was – there was bottles of drinks everywhere on the floor, too, so he could’ve slipped on the bottles. I dunno.

And then at 455 at question 356:

I’m gonna put something to you know and ask you to – to comment on it. What I’m putting to you is that you must – you must have seen him fall through the window.

I – I did not see him fall through the window. I – I pushed him away, just enough for him to get away from me. Next time I see him, he was downstairs on the – on the – on the pavement, next time I seen him. So, I assumed – I assumed that the – the reason he fell downstairs was ‘cos I – I would’ve pushed him or – that’s what – that’s the assumption that I’ve got – that I pushed him out the window. So I was – left.

But then at 360 again, just over the page at application book 456:

Well, at the very least, you must’ve heard him crash through the glass window.

I didn’t hear anything. ‘Cos th –, there was – there was bottles everywhere there. The guy could’ve – he could’ve slipped and fell on – off the bottles. There was drinks everywhere at that stairwell.

So, in my submission, when you look at the totality of what he said in his record of interview, it is not in any shape or form an admission to having been the cause of the deceased going through the window. That is demonstrated, in my submission, by the fact that three days before the verdict in respect of the applicant was brought in by the jury – three days before – they acquitted LM of all charges, totally acquitted him. So the jury could not and, in my submission, no reasonable jury could, from the statements in the car or the representations in the record of interview, draw any probative material sufficient for them to use it in the case against the applicant. But even if they could, the applicant is not exonerated in any way by what was said by LM because LM does not know where the applicant is throughout all of this. He makes that clear in his record of interview. He says that he does not know where the applicant is when the deceased went through the window, and I can take the Court to those passages at 432 of the application book.

FRENCH CJ: We are familiar with those passages, but the question is, if the statements made to the police in the record of interview, albeit resiled from, qualified, confused by inconsistencies, impliedly support an argument, support an implication that on one view he is admitting to having pushed the man through the window, that carries its own exculpatory force, at least in terms of burden of proof, does it not, or the possibility of an exculpatory application?

MR TRAPNELL: Except for the fact the way – and this is similar to Bannon – the way the case was put to the jury and the way the case was put to the jury was that one or other of them was the perpetrator and whichever one was the perpetrator, the other was acting in concert or aiding and abetting that person. So even a finding by the jury that, yes, LM pushed the victim through the window does not - - -

FRENCH CJ: And did not know where the applicant was.

MR TRAPNELL: And did not know where the applicant was. Well, that may well be, but - - -

FRENCH CJ: It does not sound like concert, does it?

MR TRAPNELL: That leaves the fact that he is going down the stairs and does not know what the applicant is doing behind him which, of course, is consistent with the - - -

FRENCH CJ: Yes, but just talking about the implication, whether there is an implication that he is the man who pushed the deceased through the window and did it by himself.

MR TRAPNELL: Yes. If he was the one who pushed the man through the window in a manner which was criminally culpable, then the way the Crown put the case, the applicant would be equally responsible for that act. Now, clearly the jury must have been satisfied that he was involved, that is the applicant was involved, in the incident which ultimately resulted in the death of the deceased, and not only was he involved, but he did it with intent to cause really serious injury. In my submission, this evidence, had it

been available to the applicant in this trial, could not have assisted him one iota in those circumstances when you look at the quality of the evidence, the way the Crown put its case and the obvious process of reasoning the jury must have gone through in order to get to a situation where it totally acquitted LM and three days later convicted the applicant.

Now, all of that is interwoven and must be necessarily part of the facts upon which this Court would then be asked to decide this very important point about whether Bannon is correctly decided and, in my submission, when you look at all the difficulties that that would create because of the facts of this case, it is just simply not an appropriate vehicle to do that. But moreover, the final point is that – and I accept that the common law is still the position in some jurisdictions in Australia, but certainly it is now no longer so in Victoria and this matter would be controlled by section 83(2) of the Evidence Act which would make this evidence admissible under the statute if it was conceded to by the applicant, which clearly in these circumstances it would be. So to settle the common law in this case is not going to assist the determination of these matters for the State of Victoria because - - -

KIEFEL J: No question about admissibility was raised either at trial or in the Court of Appeal under the Bannon - - -

MR TRAPNELL: There was discussion about it – and that is raised in my learned friend’s outline at application book page 400. Sorry, no it is not - - -

FRENCH CJ: There was debate about it before the judge, was there not?

MR TRAPNELL: Yes, it was debated and the judge effectively ruled that he could not admit it in that way because of Bannon.

FRENCH CJ: His ruling on that is at 21, is it?

MR TRAPNELL: Yes. I do not think I can take matters any further, your Honour.

FRENCH CJ: All right. Thank you very much. Yes, Mr Croucher.

MR CROUCHER: Your Honours, in fact the trial judge himself raised the matter at application book 6, was concerned about the application of Bannon, heard argument on it, trial counsel for the applicant referred to Justice Deane’s dictum and said, please do it. His Honour considered it and in the end ruled, at page 21, consistent with authority that he could not.

FRENCH CJ: Then he made the direction at 45 accordingly.

MR CROUCHER: Indeed. Next, your Honour, in my respectful submission, the Crown speaks with forked tongue about this matter. Page 47 in the application book, line 25, the judge summarises the Crown’s position to the jury in respect of the admission and the record of interview. It says this:

The Crown says that in the record of interview [LM] admits his involvement and that, based upon that, you can conclude that he (to use Mr Roses’s words) had a hand in [S] going through the window. The Crown says you can at least rely on that.

Thirdly in reply, your Honours, the point my learned friend makes about concert is simply misplaced. The verdict shows that a jury were not satisfied beyond reasonable doubt that LM caused the man to go through the window. If the jury had thought that he caused the man to go through the window but without an intention to cause really serious injury, he would have been convicted of manslaughter. It is fanciful to suggest otherwise. It is plain that if that passage I read from Justice Deane’s judgment at the foot of page 14 of Bannon that it is enough that it raises a reasonable doubt is applicable, then this is a suitable vehicle to test that because the more and more my learned friend read to your Honours passages from the interview, the more and more it sounded like a person stepping back a bit from an admission that he had caused the man to go through the window.

KIEFEL J: Well at least to you, Mr Croucher.

MR CROUCHER: Well, to me, that is right. If the Court pleases.

FRENCH CJ: Thank you, Mr Croucher. The Court will adjourn briefly to consider what course it should take.

AT 12:20 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.22 PM:

FRENCH CJ: Yes. There will be a grant of special leave in this matter. I presume an estimate of one day would be appropriate.

MR CROUCHER: Sufficient, yes, your Honour.

FRENCH CJ: There is obviously an extension of time for your application.

MR CROUCHER: Yes, as the Court pleases.

FRENCH CJ: Yes, all right. Well, can I just mention the time limits for the filing of submissions. The appellant’s submissions will have to be filed and served by 25 November, the respondent’s by 15 December and the reply by 22 December. I shall also inform the parties that the Court regards compliance with this timetable as important. Variations to it will only be made in limited circumstances. If there are applications for extensions of time or to increase page limits, they should only be made in exceptional circumstances. They will be considered by the Court or a Justice and may be listed in an open Court. Any such application should be supported by an affidavit setting out the grounds for the extension.

The Court will now adjourn to reconstitute.

AT 12.23 PM THE MATTER WAS CONCLUDED