Smith v The State of Western Australia [2013] HCATrans 225 (12 September 2013)

Last Updated: 1 October 2013

[2013] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P8 of 2013

B e t w e e n -

MARK SHARNE SMITH

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 12 SEPTEMBER 2013, AT 2.13 PM

Copyright in the High Court of Australia

MR C.P. SHANAHAN, SC: May it please the Court, I appear with my learned friend, MR A.J. ROBSON, for the applicant. (instructed by Legal Aid WA)

MR J. McGRATH, SC: May it please the Court, with MR L.M. FOX, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions WA)

KIEFEL J: Yes, Mr Shanahan.

MR SHANAHAN: Your Honours, if I do any calisthenics with my submissions, it is because I have got a retinal repair that I am recovering from and finding it hard to read. The applicant puts three contentions in this application. They are these: that physical coercion between jurors cannot be properly part of jury deliberations; cannot be part of the lawful deliberations of a jury properly understood. The applicant says if it is wrong in that primary contention, then it makes an alternative contention, and that is that there is an exception to the exclusionary rule which means that evidence of such physical coercion can be admitted. The reason for that is that were that not the case, then the exclusionary rule would be operating to protect the misconduct of jurors in that regard and the applicant says that cannot be right. I will come to the reasons for that in due course. They are the first two contentions.

The third is that if the applicant is wrong about both of those matters, then this case demonstrates why it may be the right time for this Court to curially reconsider the exclusionary rule, its rationale and how it operates, and again I will come to that. It is no answer, the applicant says, to any of those three contentions that the juror’s note that is at the heart of these proceedings is ambiguous.

In order to demonstrate why that is so, I would like to take your Honours to the circumstances in which the note was discovered and to the two primary bases upon which the Chief Justice rejected the applicant’s case in the court below. Your Honours will find the factual matters I am about to refer to recorded in the transcript at pages 54 and 55 – I am sorry, 15 – I will start again.

The facts are at 54 and 55 of the application book, and those facts include that the applicant was convicted by unanimous verdict on two counts of indecent dealing with a girl under the age of 13. Somewhere between the discharge of the jury and court proceedings the following day, an envelope addressed to the trial judge was found in the jury room. The trial judge then made some observations regarding the manner in which the verdict was delivered.

Your Honours will find the relevant transcript at page 15 of the application book at about line 40. Your Honours will see that the trial judge – I cannot read this, but it essentially says the trial judge says there is a further matter; it is the letter that has been found. His Honour then says he was a bit curious as to the circumstances surrounding when the jury left the jury room and he records that there was some noise and that there was a juror who was obviously distressed, and he then reads the note to counsel. The note:

I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel –

dot, dot, dot and it is incomplete. What the applicant says you can draw from that note is that there is an allegation of physical coercion by one juror of another juror; that the allegation is in the nature of one-on-one physical coercion. It is not couched in terms of a jury meeting in the jury room. It is not couched in terms of a discussion about the case.

KIEFEL J: What orders were sought from the Court of Appeal?

MR SHANAHAN: In the Court of Appeal, your Honour, there was an interlocutory application made by the applicant which is recorded by the Chief Justice at paragraph 8 of his reasons below.

KIEFEL J: I see, yes. That is in addition to the appeal.

MR SHANAHAN: Indeed. That was an interlocutory application in the appeal by the applicant seeking an investigation by the sheriff’s officer to - - -

KIEFEL J: As a preface in a way to the appeal because you needed the outcome of that to be able to argue that the trial had miscarried.

MR SHANAHAN: Indeed, and, your Honour, I want to say a little about the obligation of the trial judge to order an investigation and why that investigation should have occurred. If I can turn to the decision below, perhaps that is the easiest way.

KEANE J: Just dealing with the point that the presiding Judge has raised with you, it appears from paragraph 49 of the Chief Justice’s reasons at 47 of the application book that the orders authorising the conduct of inquiries, or the application for those orders, was dismissed along with the appeal.

MR SHANAHAN: It would have to have been, your Honour, because his Honour Justice Mazza in the interlocutory application referred that application to the hearing of the appeal.

KIEFEL J: I think those orders are stated at page 49, yes.

KEANE J: In your draft notice of appeal, you seek in paragraph 4 at page 53 an order that the orders made by the Court of Appeal be set aside, and then the verdicts be quashed.

MR SHANAHAN: It was not intended to refer to those orders, your Honour.

KEANE J: It was not?

MR SHANAHAN: Not intended to refer to the orders in relation to an investigation, no.

KIEFEL J: I am sorry, I am not entirely clear about this. Are you saying that special leave is sought only in relation to the dismissal of the appeal, because there are two separate orders?

MR SHANAHAN: Yes, your Honour, what is being said is this, that we are seeking a quashing of the decision on the appeal and we are seeking that there should be an investigation in relation to the note.

KIEFEL J: Well, would you not need to appeal the decision on the application?

MR SHANAHAN: Yes.

KIEFEL J: An investigation.

MR SHANAHAN: Yes.

KIEFEL J: Would you not then need an alternative position about the verdicts being quashed –

MR SHANAHAN: Yes, or a retrial.

KIEFEL J: - - - relating to what remedy would follow if it was found that the application to hold an inquiry should have been ordered?

MR SHANAHAN: Yes.

KIEFEL J: What relief would you seek? What order would you seek from this Court?

MR SHANAHAN: If this Court was to quash the decision on appeal, the applicant would be seeking an investigation and obviously there would be the issue of a retrial in relation to these matters.

KEANE J: Or would it be quash the dismissal of the appeal and the dismissal of the applications for the orders for an inquiry, order the holding of the inquiry with the report to be made to the Court of Appeal and the appeal to be reheard according to law?

MR SHANAHAN: Yes.

KIEFEL J: You could not go further than that really, could you?

MR SHANAHAN: No, your Honour.

KIEFEL J: Because you need the inquiry to determine how the trial – whether it miscarried.

MR SHANAHAN: Indeed, and that is where the applicant says the trial did miscarry in this instance. Can I deal with the reasons below briefly? Essentially your Honours will find the basis upon which the Chief Justice dismissed the appeal below between paragraphs 31 and 39 of his judgment which is at application book page 43, lines 40 and following. The applicant says that there are essentially two bases that are identified by his Honour. The first is what I will call the ambiguity point, and that is that the juror’s note was so uncertain and ambiguous that any conclusions that could be drawn from it would be speculative. That was the first ground. The second basis was that any inquiry into the note would necessarily involve an inquiry into the deliberations of the jury; in other words, which way jurors had voted and why.

KIEFEL J: That is the key to - - -

MR SHANAHAN: Indeed. The second basis was also based on an inference and the inference was that because the juror who wrote the note joined in the unanimous verdict that they had recanted from the contents of the note by the time that the verdict was delivered.

KEANE J: The alternative explanation being that that juror had been effectively coerced.

MR SHANAHAN: Indeed, your Honour, I was going to give you four reasons why that inference cannot be drawn. I can do that now. They would be these: that the noise in the form of – sorry, the note was in the form of a formal written complaint by a juror to the trial judge and had the juror wished to recant from that, it was highly likely that they would have destroyed the note or taken it with them. They would not have left it behind on the table.

KIEFEL J: The trial judge I think seemed to know and counsel seemed to know which juror had appeared troubled.

MR SHANAHAN: Yes, there is a bit of exchange in the submissions about that, your Honour. Because I was not the trial counsel, I do not think I want to press anything about that, but certainly from the transcript that I have taken you to at page 15, there did seem to be an awareness within the courtroom at the time that the jury was discharged of who that was. As I say, had the juror recanted, they would not have left a formal note addressed to the trial judge with the details of the sheriff’s officer on the back of it on the jury table before going in to deliver the verdict. The threat of physical coercion may explain why the juror in question did not want to be identified amongst the other jurors when they went in to deliver their verdict.

The reliance on a unanimous verdict for the inference that the juror had recanted is contradicted by the noise that the trial judge observed. I mean, it must have been something reasonably remarkable because we all know in busy criminal courts there is often noise going on around these things, and for the trial judge to actually have remarked on that and to have picked out a particular juror suggests that this was out of the ordinary. It is interesting to note that that occurred after the verdict had been delivered.

So the suggestion that the juror had recanted or that that inference can be drawn, it seems to the applicant that there are a number of factual matters that were not dealt with below that suggest the opposite inference. Certainly the applicant is left with a sensation that there was a problem with the jury, if we can put it that high.

Moving from the question of – so coming back to the two bases, if we talk about ambiguity, the Chief Justice relied on the ambiguity of the note. What the applicant says about that is that you could have refined the facts that were presented to the Court of Appeal, that the Court of Appeal was put in an invidious position because the trial judge did not order an investigation.

Now, when I make that submission, I am not suggesting an investigation into how the jury reached its verdict. What I am suggesting is the sheriff’s officer could have asked questions like these of each of the jurors individually, so one at a time, because of the allegation of physical coercion: did you write the note; do you resile from the contents of the note; when was the note written; what is the identity of the juror whose misconduct is identified in the note; who was present, if anyone, when the conduct complained of occurred; did the events complained of occur in or outside of the jury room?

Those questions, with great respect, do not trespass on the area protected by the exclusionary rule in any event. They are sensible questions and represent a practical approach to try and resolve the significance of the note that was presented to the court. The time at which those questions should have been asked, in the applicant’s respectful submission, was contemporaneously, whilst all of the jurors were present, the information - the identity of the jurors was clear and the circumstances of the note were fresh in everybody’s mind.

Now, had that occurred and the juror had recanted, we would not be here. Had that occurred and certain answers were given, there would have been no appeal. If the preliminary investigation I have just described, which does not trespass on the area protected by the rule, occurred, then the trial judge could have heard relevant evidence after receiving a report from the sheriff’s officer on oath.

I think her Honour President McLure in Shrivastava says - I think it is about paragraph 5 of her reasons – that an investigation of that type is in two steps and the first step is to take the evidence on oath. If one conducted the practical preliminary investigation I have suggested through the sheriff’s officer that might resolve the question. It is inexpensive. It would not add to the business of the courts in any particular degree. But if it then threw up prima facie evidence or material to be confirmed on oath before the trial judge that supported an allegation of juror misconduct, then it provides the basis for a body like the Court of Appeal to engage a note like this armed with the appropriate factual background.

The ordering of an inquiry was unknown to the trial judge. Your Honours will see if you read the passage I have taken you to at 15 and 16 of the application book his Honour clearly did not understand that he had the power to conduct an investigation. He saw it merely as an appeal point and he says so at page 16. Neither the prosecutor nor the defence counsel – and this is not intended as a criticism – advised him to the contrary. It seems clear that they were unaware of the power as well.

Obviously the applicant has no role in whether or not an investigation of this type is ordered, other than to make application through their counsel. In this situation, that means that whether or not an investigation was held or was not should not, in the applicant’s respectful submission, be held against the applicant as a basis for dismissing his appeal because really the only person with the power under the Juries Act to receive protected information is the trial judge him or herself.

There is a passage in Emmett that I thought might help your Honours and that was actually helpfully referred to by his Honour the Chief Justice, and your Honours will find that set out in the Chief Justice’s reasons at page 39 of the application book right at the bottom. Can I encourage your Honours to read that and to read right through over the page:

from opinions or pressure from anyone whether connected with the trial or not.

Anyone, which must include, with great respect, a fellow juror. That is what the applicant says the principle should be because otherwise the rule operates to protect a potential miscarriage or an actual miscarriage of justice.

KEANE J: They all went to prevent the disclosure of criminal offences.

MR SHANAHAN: Indeed, your Honour.

KEANE J: Physical coercion either means an assault or a threatened assault.

MR SHANAHAN: Yes. Can I say this? Let us imagine – and no disrespect to motorcycle gangs but perhaps there is a criminal conspiracy in – let us take another State, New South Wales, and for some reason or another a gang kingpin is being tried for something and in some way the gang is able to subvert the jury so that it gets a member or a sympathiser onto the jury and that person, one by one, just like in a Grisham novel, seeks to suborn individual jurors to achieve a majority acquittal. This rule, if the applicant does not succeed - - -

KEANE J: Or bribe them.

MR SHANAHAN: Indeed, coercion really however understood. I must say, I think that physical coercion though makes this case a good vehicle because it is clearly different from any other type of attempts to influence. It does not involve illicit material being put before a jury. It is clearly something that is not part of an ordinary deliberation however understood. No civilised deliberation is ever going to include physical force.

KIEFEL J: Is there also an offence under the Juries Act of interfering with the - - -

MR SHANAHAN: Yes, your Honour, we have set out some of the provisions in the applicant’s submissions towards the end at page 62 of the application book and your Honour will see that – I think we have given you Part IXA in its entirety, which is in the book of materials. Your Honour will find that we have given you that whole part of the Juries Act. It is not very large, happily.

Essentially all that does is to say that there is protected information and that protected information cannot be disclosed, but section 56B of the Juries Act provides that protected information can be disclosed to a court, and that is the mechanism the applicant says for the conduct of an investigation of the type that I have just described. In other words, the sheriff’s officer is instructed to – I am being told that coercion is also an offence under section 123 of our Criminal Code. I am sure that is so.

The point that I was making though was that the trial judge has the power to receive protected information under the Juries Act. That is the mechanism whereby evidence on oath by a juror, perhaps discovered in the first instance by the type of examination by a sheriff’s officer that I have described, the sheriff’s officer being an officer of the court under our Supreme Court Act, could conduct that as a preliminary matter, then, if there is any protected information to be received in evidence, it is received on oath by the trial judge under section 56B of the Juries Act. That is as the applicant sees it.

If there is no investigation, then what we have left is the applicant suspecting that there has been a problem with the jury. The applicant is a lay person, but imagines that there has been a problem with the jury. Perhaps an objective, impartial observer would have the same concern about whether or not the jury process has worked appropriately. This application is not without some substantial consideration for the applicant, because the applicant is now a registered sex offender under the relevant legislative regime in Western Australia.

KEANE J: I meant to ask you, has he served his - - -

MR SHANAHAN: He has. He served his full term. He was made eligible for parole but did not receive it, but he would rather have a retrial or go through the process that we have canvassed as to the process whereby this might be engaged, than accept the situation as it is. The Chief Justice made the point that any investigation of the note must necessarily engage jury deliberations. What are jury deliberations is a matter of some debate in the authorities, although there is a good account of jury deliberations by his Honour Justice Buss in Shrivastava where he canvasses - - -

KIEFEL J: We probably do not need to go into that. I see your time is up, Mr Shanahan.

MR SHANAHAN: Thank you, your Honour.

KIEFEL J: Yes, Mr McGrath.

MR McGRATH: May it please the Court. The proposed special leave questions and grounds of appeal rely upon inferences and conclusions of fact being asked to be drawn that cannot be established on the available material of evidence. My present submission is that the alleged irregularity, being one that the juror was physically coerced into changing his or her mind, is an assertion replete with uncertainty. That is, the reasons for decision of his Honour the Chief Justice is without doubt, in my respectful submission, correct. That is, there is no - - -

KEANE J: Even if that is right, if you look at - his Honour the Chief Justice says that at paragraph 34 at page 44.

MR McGRATH: Yes, your Honour.

KEANE J: At paragraph 32 he states:

The test, as formulated by Gleeson CJ, is whether the court ‘can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred’ –

So if we are speaking in terms of onus, and let us do that just for the sake of the argument, to say that it is speculative, if that is to say no more than, “We can only speculate as to whether or not the irregularity affected the verdict of the jury”, then the test as articulated by Chief Justice Gleeson has not been satisfied.

MR McGRATH: It is my submission that it should be understood there is insufficient evidence to satisfy the onus. I did say there was no credible evidence of physical coercion.

KEANE J: But is that not - - -

MR McGRATH: I am sorry, your Honour.

KEANE J: I am sorry, Mr McGrath, but is that not also - to say that one cannot say that independently of the second proposition that the Chief Justice deals with at paragraph 38 on 45, and that is to actually deal with the scope of the exclusionary rule because it is really on the view his Honour took of the exclusionary rule that it seems to me was the basis for rejecting the application for an inquiry.

MR McGRATH: Your Honour, in respect to paragraph 38, if I take your Honour to the last sentence of his Honour the Chief Justice’s reasons there, it is to “the extent that the note suggests”. In my submission, the manner in which the Chief Justice addressed the allegation of irregularity was first consider whether there was sufficient evidence to satisfy the test and, to the extent that it is accepted that it was, that it may suggest that. His Honour then continues on to consider the exclusionary rule.

KEANE J: Yes.

MR McGRATH: But he also then continues on, even finding that it was not extrinsic, his Honour still, the Chief Justice, considers whether or not there is an exception to the residual – there is a residual discretion notwithstanding his earlier finding, and understandably makes the determination that there was a residual discretion. This was not in one of those extreme cases, so - - -

KEANE J: But is this not where we come to the scope of the exclusionary rule? Has the exclusionary rule ever operated to prevent a court taking cognisance of the commission of an offence in the jury room?

MR McGRATH: It is a question of – what your Honour is asking is what may be described as the extreme case.

KEANE J: Sure.

MR McGRATH: The extreme case in this jurisdiction would be as my learned friend referred to section 123 of the Criminal Code which provides that it is a criminal offence if any person “Attempts by threats or intimidation of any kind” and others “to influence any person” who is on a jury”.

KEANE J: How would we ever find out about that?

MR McGRATH: Your Honour, in my submission, if that is an extreme case and there is an allegation of criminal conduct, then it may be one of those extreme cases to which the Chief Justice referred and necessarily there would be an inquiry. But in that case it may well be an inquiry conducted in an investigation by police officers with the use of sheriff’s officers.

KIEFEL J: Why do you say there should not have been an inquiry in this case?

MR McGRATH: Well, the primary reason I have said is - - -

KIEFEL J: You cannot answer that by saying that it is speculative because that is why you have an inquiry presumably.

MR McGRATH: Well, there are a number of difficulties with the note. The first sentence is a statement of conclusion. The second sentence is incomplete.

KIEFEL J: It seems to be relatively articulate, apart from the second sentence being incomplete.

MR McGRATH: So, dealing first with the first sentence, “I have been physically coerced”, in my submission the reason for decision of the Chief Justice is correct that it does not clearly articulate what it is said that occurred. It could range between something minor as jurors exchanging views with raised voices. It may just be no more than a robust interchange as against improper intimidation.

KIEFEL J: Does the note have to be taken into account with the other factors known to the trial judge, though?

MR McGRATH: Being the?

KIEFEL J: Being the identity of one of the jurors, some difficulty, the noise they made and the hesitancy with which the foreman said that the verdict was unanimous.

MR McGRATH: They would be factors that should be considered. Equally so the verdict was given in the sight and hearing of all the other jury members including the juror concerned. It was said without protest. Their assent may be conclusively inferred, which it normally is. With some trepidation we make the submission that the observation regarding the delivery of the verdict and noisy departure in itself is speculative. The learned trial judge made the observation “it did not make grammatical sense but anyway I draw it to your attention” and the learned trial judge also noted, “I do not know when he made the note whether he subsequently decided that he did agree or not. I simply do not know”.

In respect to the timing in which the note was received, it is clear that the learned judge raised the note with counsel the following day, that is, the verdict was received the previous day. Upon the verdict being entered, the jury were discharged. They leave the court precincts. The next morning the court reconvened for consideration of bail and it was at that stage the judge raised the note.

I make that point for this reason. My learned friend says that the judge should have made - or undertook some inquiry. In answer to that question, I would ask as the jury has been discharged, they have left the previous day, the moment for undertaking an inquiry has passed. It was not possible. Then under what powers was it suggested that the judge should have at this point made further inquiries? I appreciate the question then arises what should the Court of Appeal have done in respect to this?

KEANE J: The Court of Appeal did not suggest that the application for those orders should be dismissed on the basis that it would be futile or lacking utility or impossible to conduct. They simply dealt with it on the basis that there was nothing relevant to inquire into, and it would seem to me that they did so on the basis of the view they took of the exclusionary rule.

MR McGRATH: Your Honour, the Chief Justice at paragraph 48 of his reasons for decision notes – the reasoning of the Chief Justice was that:

the note provides an entirely insecure foundation for the authorisation of what would necessarily be wide-ranging and intrusive inquiries into the deliberations of the jury –

So I return to my primary submission, and that is, properly understood, the reasons of the Chief Justice were that the note was wholly speculative, it did not satisfy the required onus and with that insecure evidentiary foundation the appeal was dismissed. However, his Honour the Chief Justice, as I already stated in my submission, did continue on to consider the exclusionary rule, did ask if there was an extreme case is there a residual discretion, noted that, even if he is wrong, this is not an extreme case, and then continued on regarding what was proposed in the inquiry.

So my submission is that it would be – there are three points I make in answer to my learned friend. There was this insecure foundation for the inquiry. I can say no more than rely upon the reasons for decision of the Chief Justice. There is the practical impediment at the trial judge stage in that the jury was discharged.

My third point is, my learned friend raises as to whether there could be a limited inquiry and he says in his submissions or summary of argument at paragraph 3.24 that some form of limited inquiry could be made regarding this. In my submission, that would be misconceived in this: it would necessarily transcend an interrogation into the nature and scope of the deliberations. Would it not have to be asked about the veracity of the complaint of the note’s author?

The last point I make is this. The subjective nature of such an inquiry would make it virtually impossible, in my submission, to expect any uniformity or consensus of outcome.

KEANE J: Mr McGrath, the exclusionary rule, the rationale for it at absolute rock bottom is that the rule serves the administration of justice by preserving the confidentiality of deliberations by jurors. If one looks at another such rule, the rule about legal professional privilege, it has the same rock-bottom notion of assisting the administration of justice. But so far as that rule is concerned, we are all familiar with the notion that it does not operate to prevent the disclosure of criminal conduct. Why would the same sort of rationale or same limits to the rationale not apply in relation to the exclusionary rule?

MR McGRATH: Your Honour, I do not make the submission in what his Honour the Chief Justice refers to as the extreme case that it would not be open to engage and undertake the inquiry which your Honour has suggested in that there is – and in my submission it would be on an occasion where it would be outside the exclusionary rule rather than - not, as my learned friend says, forming part of the deliberations.

I do not make the submission that if there is evidence that suggests there is a possible breach of, for example, section 123 of the Criminal Code, that the State would be relying upon, or anyone would rely upon the exclusionary rule to prohibit an inquiry. Does that answer your Honour’s question? That section 123 is an example of the extreme case which the Chief Justice considered and in his reasons for decision stated that, notwithstanding considering that, the facts of this case did not fall within those parameters. They are the submissions on behalf of the respondent. May it please the Court.

KIEFEL J: Thank you, Mr McGrath. Do you have any submissions in reply, Mr Shanahan?

MR SHANAHAN: Just very briefly, your Honour. Your Honour Justice Keane asked the question whether there has been a case where the commission of a crime has been quarantined by the exclusionary rule. Emmett itself is a case where there were allegations of pressure by three sheriff’s officers of jurors and that was the exclusionary rule was not allowed to preclude an investigation of that.

KEANE J: I think Mr McGrath would say yes, but that is an example of extrinsic influence.

MR SHANAHAN: Indeed, and that is precisely the point that the applicant makes in relation to this, that physical coercion is an extrinsic quality to the process of deliberation, and it must be.

KEANE J: Even if it happens within the room, juror to juror.

MR SHANAHAN: Indeed. It does not matter where it happens, because it is physical coercion and not a discussion, it is not deliberation. It cannot be, and your Honour will see the passage that I have previously referred to about the breadth of jury deliberations always comes back to the idea of jury deliberations properly so called without perhaps really teasing out what that means in particular circumstances.

My friend was asked to answer the question why not an inquiry and I think all your Honours really received was a question in return and that was well, the note is speculative or ambiguous. The whole point of an inquiry is to resolve that. The only other point I wish to make is this. I have given the Court a series of questions that could clearly be put and answered without trespassing on the ground protected by the exclusionary rule.

In any event, in a case like this, a Court of Appeal should be in a position where it has answers to those questions, and a contemporaneous inquiry, even if the day after a jury has been discharged, the sheriff’s officer has all of the information necessary to identify the jurors and to bring them before a sheriff’s officer or the court for that purpose. Unless your Honours have any questions, they are the submissions for the applicant.

KIEFEL J: Yes, there will be a grant of special leave in this matter. Mr Shanahan, you will need to address your notice of appeal and in particular the orders sought and ensure that you identify just what you are appealing from.

MR SHANAHAN: Yes, we will file an amended notice directly, your Honour.

KIEFEL J: Thank you, and how long do you think?

MR SHANAHAN: Not more than half a day. I would not have thought it would take more than a couple of hours to hear a matter like this, your Honour, but perhaps half a day is the best estimate.

KIEFEL J: Do you agree with that half day, Mr McGrath?

MR McGRATH: We should be able to do it in half a day. I do note that it is likely the appeal would open up a consideration of the exclusionary rule.

KIEFEL J: The question is how long that would take to argue, I suppose.

MR McGRATH: Yes, it is.

KEANE J: Are you anticipating interventions or something?

MR McGRATH: It may well be. If it was limited to the appeal points raised by my learned friend then half a day at this stage would be sufficient. May it please the Court.

KIEFEL J: Thank you. Would the parties please ensure that they obtain the timetable for submissions in this matter before they leave. The Court will now adjourn until 10.15 am on Wednesday, 2 October in Canberra.

AT 2.52 PM THE MATTER WAS CONCLUDED