Agius v The Queen [2013] HCATrans 30 (15 February 2013)

Last Updated: 19 February 2013

[2013] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S254 of 2012

B e t w e e n -

ROBERT AGIUS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2013, AT 11.00 AM

Copyright in the High Court of Australia

MR I.M. BARKER, QC: If the Court pleases, I appear with MR P.R. COADY, for the applicant. (instructed by Eddy Neumann Lawyers)

MR P.W. NEIL, SC: May it please your Honour, I appear with my learned friend, MS S.M. McNAUGHTON, SC, for the respondent. (instructed by Director of Public Prosecutions (Cth))

HEYDON J: Yes, Mr Barker.

MR BARKER: Your Honours, can I commence by tendering by consent a letter from the Director of Public Prosecutions? We only got it yesterday and I could not include it in the bundle of documents. The purpose in the tender is simply to demonstrate that the issue before your Honours is very much alive in other jurisdictions. The case referred to in the letter relies upon the Court of Criminal Appeal decision in this case. We say that this is relevant to the - - -

HEYDON J: So the other proceedings you are speaking of are what are called the Melbourne proceedings?

MR BARKER: Yes.

HEYDON J: And also there is Mr Zerafa, is he part of Agius’ proceedings?

MR BARKER: Yes.

HEYDON J: Yes, I see. Thank you.

MR BARKER: He was convicted and released on a good behaviour bond. That is the subject of further litigation. So, looking at all this generally and, in particular, the matters revealed by the letter, we say that this case fits quite snuggly into a trilogy of cases, being this case, Ansari and R v LK, and should be looked at by the Court in order that the unenlightened such as myself will learn what it is all about.

The Commonwealth Director presented an indictment, which is at page 1 of the application book. The indictment alleged two separate and different conspiracies, one contrary to the Crimes Act and one between 1 January 1997 and 23 May 2001, and secondly, contrary to the Criminal Code, between 24 May 2001 and 10 April 2008. Notwithstanding the indictment, the particulars at application book pages 3 to 4 tell us that there was but one conspiracy. It was formed by May 1997. All the accused were parties to it by 31 December 2000, yet the indictment has it starting on 24 May 2001.

There are three areas of disagreement – I have tried to reduce it to three. Firstly, the applicant contends that proof of the conspiracy alleged in count 2 requires evidence of an agreement entered into on or after 24 May 2001 because that is the commencing date alleged in count 2. In that regard, your Honours, the matter is raised in the application book at page 78, line 30; that is that:

The Court of Criminal Appeal erred in finding that proof of the conspiracy . . . did not require evidence of an agreement –

It is also referred to in the draft notice of appeal ground 2 at application book page 85. Justice Simpson and the Court of Criminal Appeal relied heavily on the common law concept of conspiracy as a continuing offence as held in Doot’s Case [1973] AC 807, and cases which followed Doot. In that regard, could I take you to page 23 of the application book, line 50? Her Honour said:

I am satisfied that the submissions are based upon a fundamental misconception. That misconception is that the offence of conspiracy depends upon the formation of, or entry into, an agreement, as distinct from the existence of, or participation in, such an agreement. The submissions were to the effect that, since the CDPP alleges that the agreement was made during the currency of s 29D of the Crimes Act, then, absent a second agreement formed, made, or entered into after the commencement of s 135.4(5) of the Code, there can be no offence of conspiracy contrary to that section.

That is, as I have indicated, fundamentally wrong. What the offence of conspiracy depends upon is the existence of, or participation in, an agreement, and not the precise timing of its formation.

In the CCA, Justice Johnson, speaking for the court, upheld Justice Simpson’s finding in that matter, and that is at page 64 to page 69. Now, we do not quarrel with the reasoning in Doot and the cases that followed Doot. What we say is that it is merely irrelevant because the point at issue is to be determined by the common law of Australia as modified by the Criminal Code in 2000, and not by the common law of England in 1973. Justice Johnson at page - - -

BELL J: Can I just understand that submission?

MR BARKER: Yes, your Honour.

BELL J: Is it a submission that Doot is not a principle that is embraced by the common law of Australia?

MR BARKER: No. It is not relevant to this case because of the nature and form of the indictment and the fact that the commencing date alleged is 24 May 2001 and, secondly, the Code, we say, cannot be used as a sort of blanket going back to January 1997 when the specific allegation is 24 May 2001 and section 135.4(5) of the Code makes, we say, specific provision for acts of conduct. What her Honour is saying is, look, Doot covers this because there is a continuing agreement. You cannot have a continuing agreement going back before 24 May 2001 when you allege, specifically, an agreement commencing on 24 May 2001.

HEYDON J: I know you have your views on the prosecution, but what should the prosecution have done, given this change in the law, from the State law to - - -

MR BARKER: They should have given proper consideration to charging substantive offences.

HEYDON J: Abandon all conspiracy allegations?

MR BARKER: Abandon the conspiracy charge, yes. That is, we submit, the only reasonable conclusion one comes to when one looks at the indictment in the light of the case they really put. An indictment is supposed to tell an accused person precisely what he or she is charged with.

HEYDON J: And these substantive offences, did they change around 2000 or 2001? Do we move it from the State law to the federal law with them?

MR BARKER: No, I think the answer to that is no, they did not.

HEYDON J: So it would be a question of section 29D of the Crimes Act (Cth)?

MR BARKER: Well, it was repealed you see, your Honour, on 23 May 2001. That is the problem.

HEYDON J: So, what is the provision that makes it a crime to defraud the Commonwealth, absent conspiracy?

MR BARKER: I am sorry, I should be able to answer that readily.

HEYDON J: Do not let me interrupt the flow of your argument. You proceed as you want and your junior will tell us.

MR BARKER: I am sorry, I know the section but it has momentarily escaped me.

BELL J: Your contention is put on the basis that the indictment in count 2 in alleging between 24 May 2001 and 10 April 2008 did conspire is an averment that the conspiratorial agreement commenced sometime between those dates. The analysis of the primary judge and the Court of Criminal Appeal was that conspire for the purposes of section 135 imports the common law of Australia.

MR BARKER: Yes, as modified.

BELL J: Indeed, and that embraced a state of affairs, being the intentional continuance of conduct that had commenced at an earlier point in time.

MR BARKER: Well, that is another area of disagreement. We say that it is just not appropriate to call this a “state of affairs”.

BELL J: All right, what is wrong with the analysis?

MR BARKER: Well, if it is not a state of affairs the analysis does not go anywhere.

BELL J: If one has agreed with five other individuals to engage in conduct of a particular character and from a date, in this case 24 May 2001, one continues to engage in conduct pursuant to that earlier agreement, why is that not properly characterised as a “state of affairs”?

MR BARKER: Well, one has to go to the Code, section 3.2 and 4.1. Section 4.1(2) tells us that:

conduct means an act, an omission to perform an act or a state of affairs.

Now, it was argued below, and we continue to argue it, that in particular at page 95 of the application book, line 20:

the Court of Criminal Appeal [76] to [84] were wrong in holding that the physical element required by s 135.4(5) could be provided by recourse to a “state of affairs” as satisfying the definition of conduct in s 4.1.1(a) and 4.1(2). As French CJ in R v LR and RK observed at [42] “the concept of engaging in conduct which is a state of affairs, is not explained.” The physical element . . . [we say] cannot be set to one side in favour of a doubtful interpretation of the extent of the meaning of “state of affairs” in the relevant context.

The cases, your Honour, are directed to “state of affairs” as being a passive circumstance, rather than active conduct which we say the Code is concerned with. For example, He Kaw Teh, which I think is the second case in the folder – sorry, the third case in the folder – has a judgment of Sir Gerald Brennan at page 564 where he says about the middle of the page:

It is generally true to say (as Barwick CJ pointed out in Ryan v The Queen (14)) that an act or omission done or made by a person is the essential foundation of his criminal responsibility. Having something in possession is not easily seen as an act or omission; it is more easily seen as a state of affairs . . . but it is a state of affairs that exists because of what the person who has possession does in relation to the thing possessed.

BELL J: The difficulty though is that the Act does in section 4.1(2) define conduct to mean a “state of affairs”, among other things.

MR BARKER: Well, that must depend surely on the context in which it is read.

BELL J: Well, if one looks at the comprehensive way criminal liability is analysed in Chapter 2:

A physical element of an offence may be:

(a) conduct –

Conduct is defined to include “a state of affairs”, and there is a default fault element respecting that physical element.

MR BARKER: Yes, but one must look at it in the light of the two sections which create the offence of conspiracy, that is 11.5, and the one with which we are charged, 135.4(5). In our submission, properly read, those sections require some positive conduct on the part of those who are said to be guilty of conspiracy, not simply a sort of passive circumstance which is not dealing with conduct. It is simply dealing with a circumstance which – you would have to read it so broadly that, in my submission, you just cannot accommodate the words in section 135.4 and section 11.5 as appropriate to say, well, what does all this matter if there was an old agreement, we will say that is the state of affairs and therefore that is conduct which will involve the accused in a criminal offence.

Now, the other matter of disagreement is the question of retrospectivity. My submission is that if you are going to allege a conspiracy which according to the particulars was complete by - - -

HEYDON J: By 1 May 1997.

MR BARKER: - - -1 May 1997, and all the parties were parties to the conspiracy by the end of 2000, you cannot, with respect, say well here is an agreement which was concluded in 1997, we will ignore that and charge an agreement commencing on 24 May 2001. Now that, in my respectful submission, raises a serious issue of retrospectivity. Our submissions in that regard are at page 63 of the application book.

HEYDON J: I do not think so, that is part of the judgment of the Court of Criminal Appeal.

MR BARKER: Yes, your Honour, line 10.

HEYDON J: So you repeat the submission?

MR BARKER: Yes. Sorry, that is the judgment. At page 93 and 94:

The Court of Criminal Appeal erred in finding that the condition of guilt required by s. 135.4(9) could be satisfied by proof of an agreement entered into before s. 135.4(5) commenced [71]-[72]. The finding cannot be reconciled with the requirement that there must be proof of an overt act (s. 135.4(9)(c)). It assumes s. 135.4(5) has retrospectivity which it does not have.

Now, in our submission – firstly I should say this. For present purposes the matters in section 11.5 and 135.4 can be treated as identical. They specify the offence, the physical aspect of the offence, and they specify particular requirements of a finding of guilt. They are, therefore, in one sense, modifications of the common law. But we do submit that none of the conditions, and I am speaking of the conditions in subsection (9)(a), (b) and (c) of section 135.4, none of those conditions could be satisfied by events occurring before the offence created by section 135.4(5) commenced. So, your Honours, section 135.4 commenced on 24 May 2001 and the matters explanatory of it or what the court said was – I cannot pronounce the word - - -

HEYDON J: Epexegetical.

MR BARKER: Epexegetical. Yes, if I say it often enough I will probably get used to it, but I think it means explanatory of what it is to enter into a conspiracy. Now, we submit that none of the conditions in either (9)(a) or (9)(b) could be satisfied by evidence of events occurring before the offence was created and that was on 24 May 2001. Justice Simpson looked at it in a rather tangential way at page 28 of the application book. In response to a submission made by the learned prosecutor, page 28, line 40, senior counsel:

sought comfort from the use of the past tense in s 135.4(9)(a), in order to argue that an agreement pre-dating the introduction of Chapter 7 is sufficient to establish the necessary agreement.

For two reasons, this argument fails . . . if, in accordance with ordinary canons of statutory interpretation, the same construction were given to sub-para (b) and sub-para (c), an offence wholly committed prior to 24 May 2001 could be prosecuted under s 135.4. That is plainly not the case.

An offence wholly committed before 24 May could be prosecuted under section 135.4 which she rejected. That, I must say, is our case. The effect of this order is that Mr Agius is being prosecuted in 2001 in respect of an offence going back to 1997, wholly committed before the section under which he was charged came into effect. We submit that that itself should be fatal to count 2. I think I am running against a red light.

HEYDON J: You have been for some time, Mr Barker, but this is important. If you have any other submission you want to put, by all means put it.

MR BARKER: Well, as to “state of affairs” we say that, having regard to the cases on the topic, it refers to a passive result of conduct leading to the state of affairs, not the conduct itself, and we submit there does not seem to be any authority to the contrary. One must read the section which talks about a “state of affairs” in the light of the offence-making sections which require, we say, positive conduct. The question of retrospectivity I think we have covered but I will simply repeat that subsections (9)(a), (b) and (c) of section 135.4 all govern proof of the offence created by section 135.4, and with respect to her Honour and the Court of Appeal it is impossible to read the indictment and the particulars without seeing that what is attempted is an offence – the legislation which deals with it is wholly retrospective and that itself, we say, should not be.

One other thing, if I may. The Court of Appeal in holding that participation in a continuing agreement was adequate said so with respect contrary to something said by this Court in R v LK. If I could take you firstly to Justice Simpson at page 24, she said – I did take you to this before and I apologise:

What the offence of conspiracy depends upon is the existence of, or participation in, an agreement, and not the precise timing of its formation.

And the Court of Criminal Appeal approved that at page 69, line 40:

I agree with the statement of Simpson J at first instance that the offence of conspiracy depends upon the existence of, or participation in an agreement, and not the precise timing of its formation.

But if one goes to R v LK, which is number 1 in the folder, at paragraph 133 it is said that:

Paragraphs (a) and (b) of s 11.5(2) are epexegetical of what it is to “conspire” with another person to commit an offence within the meaning of s 11.5(1). Section 11.5(2)(b) looks to the time at which the agreement was entered, making clear that for a person to “conspire” under s 11.5(1) it is necessary that he or she and at least one other party to the agreement “must have intended” that an offence be committed –

Now, one may argue about the precise significance of the words, the precise time, but it is clear from the judgment of this Court in LK that the time at which a conspiracy commences is an important factor and that was not given any attention at all, we say, in the judgments of the Court of Criminal Appeal except to say that all that is necessary is an old agreement which can be called in aid in a manner wholly retrospective. I am indebted to your Honours.

HEYDON J: Yes, thank you, Mr Barker. I think we will adjourn briefly to consider the future progress of the application.

AT 11.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

HEYDON J: Yes, Mr Neil.

MR NEIL: May it please your Honours, could I deal firstly with the question of public importance? Notwithstanding the information about the Melbourne cases, the public importance said by the applicant to attach to the matter is now much reduced. At the time of the first special leave application on the same point in June 2011 there were around, and it was put in the written submissions, 25 tax fraud cases throughout the Commonwealth potentially affected by the matters then raised, which are the same as those raised here.

Most of those cases have now been finally disposed of. There is only the Melbourne case which is part-heard in committal where the point is a live issue. It has not been taken or sought to be taken in any of the other cases. So the Court, in our respectful submission, therefore has before it really a transitory case of statutory interpretation with only one other matter perhaps apart from Mr Agius potentially affected by the outcome, and the matter now goes back, May 2001 is not far short of 13 years ago.

So far as the appeal to the Court of Criminal Appeal is concerned, your Honours will have gathered from our written outline that we strongly support the reasons of Justice Simpson but they are sufficiently recounted in the reasons of Justice Johnson in the Court of Criminal Appeal perhaps for me to concentrate on those. Could I say that Mr Barker is correct in substance in saying that for the purpose of this application there is no practical difference between the conspiracy offence created by section 11.1 of the Code and the offence under consideration here which is its own conspiracy offence under section 135.4? Both contain similar elements and similar additional matters to be proved however one characterises them, including the need for an agreement.

Where the parties differ is that firstly – and your Honour Justice Bell probably would not be expected to recall this, but your Honour did make comment in June 2011 that the issue raised in RK and LK, and my friend has given the citation, was radically different from the one now concerned with this application. That appears in a number of places but in the supplementary folder under tab 1 where there is a copy of this Court’s decision in R v LK and R v RK, if I could invite your Honours to turn to page 183 to the introductory remarks of Chief Justice French, at the very foot of the page after some prefatory remarks, the Chief Justice said:

The primary question in these Crown appeals is whether the offence of conspiracy is committed when there is an agreement to commit the offence of dealing with money the proceeds of crime where recklessness as to the fact that the money is proceeds of crime is an element of the substantive offence.

That was what the whole argument was about and this case was distinguished on its facts from Ansari where because the Code contains an expanded definition of recklessness to include intention there was a simple factual difference upon which the results in each case turned.

BELL J: I think, Mr Neil, accepting all that you say as to the difference between LK and aspects of the issue now raised, LK did feature consideration of what were the elements of the offence against a contention that the matters stipulated as pre-conditions for guilt of the offence of conspiracy in sub (2)(b) were elements of the offence, and in that context at page 232, paragraph 132 in the plurality reasons in LK 241 CLR 177 it was said that:

The physical element of conduct [constituting the offence] involving entry into the agreement is specified in s 11.5(1).

MR NEIL: Indeed, your Honour.

BELL J: Now, on Mr Barker’s argument, that does not sit well with the resolution in this case - - -

MR NEIL: The answer, Justice Bell, in our respectful submission, is that LK was dealing with the facts of the charge. It was not a straddling situation such as we have here. So the real issue did not fall for debate, and indeed was not debated in any way. Now, if one looks at Gillies and the texts and the cases on conspiracy, it was common to talk about the offence being completed as soon as the agreement was entered. There was no question of a contiguous statutory regime with virtually identical elements for the statutory offences of conspiracy except that under the Code all you needed was one overt act by somebody, whereas before the agreement simplicita was enough.

So, the rationale of the distinction, with the utmost respect, your Honours, we submit, can be gleaned from the reasons of Justice Johnson in the application book commencing at page 63, under the heading, “Resolution of Competing Submissions”. His Honour very carefully identified all of the arguments of the parties and, we submit, did them full justice and he identified carefully the arguments about very learned colleagues, Mr Barker and Mr Coady, who then appeared, and he made a couple of points. Firstly, on page 64, about line 30:

Alleged Error Concerning the Actus Reus of Conspiracy at Common Law

I should mention to your Honours that we have relied heavily on that in our summary of argument which commences at page 99 of the book, and I would invite your Honours to glance at that. Justice Simpson observed:

the crime of conspiracy is complete when the agreement is made [but] . . . it is equally well established that conspiracy is a continuing offence.

Doot and a whole range of cases, including Australian cases, have said that continuously. His Honour then goes on, and I will not read it, of course, to refer to various passages of Doot, but of particular relevance is paragraph 51 on page 65, a unanimous decision of the New South Wales Court of Criminal Appeal, Chief Justice Kerr, Justice McClemens, Chief Judge at Common Law and Justice Lee, and that does appear in full in the supplementary materials under tab 5, but the relevant part is discussed by Justice Johnson and it leads to paragraph 53 on page 66:

The characterisation of conspiracy as a crime of duration, a continuing offence which lasts as long as it is being performed, has been emphasised:

He cites Woss and he cites Masters, well-known cases. We placed below and we place here before your Honours considerable reliance on Justice Fenton-Atkinson’s decision in Simmonds which was cited with approval by Justice Hope in Saffron. The relevant part is set out in paragraph 54, and in the very last line, if I may read that:

But it all remains a single conspiracy as long as all of them are for the period of their participation acting in combination to achieve the same criminal objective.”

Now, your Honours, that is in the context of the well-known principle that you can have two or more join at one time, people can drop out, people can come in, and there is no question, in our submission, that that is the law because one thing LK did make manifest was that unless there was an express statutory modification by the Code of the common law of conspiracy, as this Court said in Ansari, then the common law applies.

BELL J: Accepting that, Mr Neil, and accepting that it is uncontroversial that had the law not changed and had the alleged conspiracy continued until 2008, it having been formed in 1997 or thereabouts, those charged in connection with it would have been amenable for the whole of their conduct in relation to that single conspiracy.

MR NEIL: Indeed, your Honour.

BELL J: And they would have been charged in a single count.

MR NEIL: Yes, your Honour.

BELL J: Here there are two counts for which the applicant is answerable in terms of the penalty available in each one for what is particularised as the one conspiracy.

MR NEIL: That is so. Your Honour, we seek to explain it this way. In reliance on the case of Simmonds, conspiracy requires at least two parties, that is basic. In the case of a late joiner, the conspiracy has already been on foot between at least two parties. When the new party joins, the existing parties do not rejoin. The new party simply joins in the existing agreement. If the actus reus of the conspiracy was confined to enter into the agreement, you would need one of the original parties to enter again with the new party or there would not be a two-sided actus of the entry. Rather, it would be like the sound of one hand clapping, and clearly that cannot be.

So that those were the factors that Justice Simpson and Justice Johnson examined in considerable detail in coming to their conclusion, and because it is convenient to stick with the application book for a moment if I may, at the next page, page 68, we place reliance at paragraph 59 on the decision of Chief Justice Street in Sloggett. It is an old case but it has never been challenged, and your Honours see what was cited from that case, but in paragraph 60 Justice Johnson said:

To my mind, this general description of a continuing offence is helpful in understanding the way in which the offence of conspiracy at common law was said to constitute a continuing offence. Of particular relevance is the statement of Street CJ that continuing offences “are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences”.

Now, his Honour points to the aptness of the expression “state of affairs”. As Justice French said in LK, there is no defined meaning in the Code of state of affairs, but that is not a bad one, in our respectful submission. It accords with commonsense and it accords with the ordinary dictionary meaning. We further call in aid what his Honour said at paragraph 61, particularly in the last line:

The prosecution is not bound to define the exact time at which the agreement began or the exact act which marked its inception -

nor when it ends, indeed. I mean, this one ended purely because there was a police raid, but - - -

BELL J: But your difficulty is it began in 1997.

MR NEIL: Well, we did not say – and the particulars at the beginning of the application book made this plain, that anyone in 1997 other than Mr Agius and Mr Owen T. Daniel joined in the conspiracy at that time. We particularise that the other parties who were charged, including Mr Zerafa, it was not known precisely when they joined, but the Crown case was they had joined by certain dates, Mr Zerafa in the middle of 1979 and others as late as 2000. I should mention in passing, although nothing turns on it, that there was a later amendment to reduce the period of the second count to 2006, but nothing whatsoever turns upon that.

BELL J: Is it a matter of prosecutorial discretion in the case of a conspiracy that unfolds over a period of time as to whether to charge a single conspiracy or choose to charge a number relying on the continuing state of affairs, the continuing assent of the conspirators?

MR NEIL: There was no discretion available here because it was clear and it was accepted by both sides in the court that the count 1 conspiracy, the way the amendment worked, ceased at the close of 23 May 2001, and if count 2 was good, the exact same circumstances that occurred at midnight continued on to 24 May. But the evidence was overwhelming in terms, we say, of our colleague’s learned client, our colleague’s client, that there was an ongoing set of arrangements in the course of implementation in the weeks before and carried straight through; the same with others, certainly Mr Zerafa. There was no real issue at the trial about that. The issue had been resolved by the Court of Criminal Appeal beforehand that count 2 was good.

Your Honours, there are a couple of brief passages, if I may. One is to say that on the example I gave previously, we would submit that if the applicant’s proposition is sound, then under the Code it would be difficult to have late joiners, and that would clash so harshly with the common law that that cannot be. It has never been suggested that that is the way conspiracy works. In fact, for centuries it has been the situation that quite the opposite is the case, and there are cases – and, of course, the Code itself contains an express defence, both in section 11 and in section 135.4(5), I think in paragraph (11), of being not guilty if you had taken – these are my words in parentheses – reasonable steps to withdraw from the conspiracy beforehand.

HEYDON J: Twelve.

MR NEIL: Thank you, your Honour. You could have the situation of two original conspirators having withdrawn, both under the old section 29D and section 86 of the Crimes Act 1914 and under section 11.1 or section 135.4, and having a perfect defence to a charge of conspiracy where others who later joined in at a later time could quite well be found guilty. My friend I think mentioned Saffron and I just wanted to identify for your Honours without taking your time - the case of Saffron is under tab 7 in the additional materials. I think I am on the red light, your Honours; I hope I am not, but I will just identify the passages if I may. They are referred to in Justice Johnson’s reasons at paragraph 61 at application book page 69, the cases of Saffron and Mokbel, and the passages appear in Saffron at page 419F in the reasons of Justice Hope and at page 436F in the reasons of Justice Clarke.

Finally, if I may, your Honours, say we do support strongly the conclusions of both Justice Simpson and the Court of Criminal Appeal that any other outcome of the matters before them would have led to a result of absurdity. Justice Johnson specifically refers to section 15AA of the Acts Interpretation Act that your Honours would be familiar with. It would go completely against any purpose of interpretation of the Code to accede to our learned colleague’s application. Unless there are any questions, they are the respondent’s submissions, your Honours.

HEYDON J: Thank you very much, Mr Neil. We need not trouble you, Mr Barker. There will be a grant of special leave in this matter. How long do counsel think the appeal will take?

MR BARKER: I think a day, maybe.

HEYDON J: Very well. It will be treated as having an estimate of a day. Could the solicitors for the parties collect from the Registrar on the way out directions for the filing of submissions in relation to the appeal?

MR BARKER: Thank you, your Honour.

AT 11.50 AM THE MATTER WAS CONCLUDED