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State of Western Australia v Marchesi and McGuire [2006] HCATrans 416 (4 August 2006)

State of Western Australia v Marchesi and McGuire [2006] HCATrans 416 (4 August 2006)

Last Updated: 4 September 2006

[2006] HCATrans 416

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P35 of 2005

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Applicant

and

RODNEY ANTHONY MARCHESI

Respondent

Office of the Registry
Perth No P39 of 2005

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Applicant

and

BRENDON SHAYNE McGUIRE

Respondent

Applications for special leave to appeal

CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST 2006, AT 1.15 PM

Copyright in the High Court of Australia

__________________

MR D. DEMPSTER: May it please the Court, I appear on behalf of the applicant in both matters. (instructed by Director of Public Prosecutions (Western Australia))

MR P.J. HAAG: May it please the Court, I appear for the respondent, Marchesi. (instructed by Justine Fisher)

MR O.P. HOLDENSON, QC: May it please the Court, I appear for the respondent, McGuire. (instructed by Theo Magazis & Associates)

CALLINAN J: Yes, Mr Dempster.

MR DEMPSTER: Your Honours, the narrow interpretation taken by the Court of Appeal to section 12(1)(b) of the Criminal Code and particularly to the phrase “make up” runs directly contrary to the purpose of the legislation. In the principal judgment, the learned President, his Honour Justice Steytler, outlined the second reading speeches and, indeed, expressed at application book 37 in paragraph 38, as his Honour put it:

It seems plain enough from what was said by the Minister that the amendment was aimed, at least in part, at conspiracies made outside the State to import drugs within it.

Indeed, the terms of the second reading speeches make that plain, but the narrow point – and this is a very narrow and strict point – is that his Honour construed that phrase “make up” within section 12(1)(b) as amounting to “constitute” and we say that a broader approach is called for consistent with the modern approach to statutory interpretation where context is everything but context is construed of itself in a wide way and normally having particular regard to the harm which would be caused – and we are talking here about a conspiracy entered into outside the State intended to cause harm within the other State.

That broader approach has already been adopted by this Court in Pinkstone and perhaps I could take your Honours to that – it is No 2 on our list – and particularly at the very top of page 454 the learned Chief Justice and Justice Heydon said:

Furthermore, at least one of the acts making up the elements of that conduct occurred in Western Australia, and s 12(1)(b) of the Criminal Code (WA) applied.

The matter was set out in a little more detail by their Honours Justices McHugh and Gummow on the following page at paragraph 56 in the extract provided where there it was stated:

The arrival of the drug at Perth airport –

and, of course, there is a parallel here, the relevant event here is the arrival of the drugs within Western Australia –

on a flight in which it necessarily had been in the custody of Ansett as the “innocent agent” of the appellant, and the unloading of the cargo from the aircraft by Ansett staff, were necessary elements in the process by which the drug was sent there for collection by Mr Yanko. Thus, at least one of the acts, events, circumstances or states of affairs making up the element of “sending”, and thus of “supply . . . to another”, occurred “in Western Australia” within the meaning of par (b) of s 12(1) of the Criminal Code.

There is some indirect support in the following authority, Truong – that was an extradition matter where there was a comparison between a conspiracy and the substantive effect in the context of extradition. At the top of page 81, in paragraph [29] of that judgment, the learned Chief Justice and Justices McHugh and Heydon described:

The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level
of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other.

CALLINAN J: Mr Dempster, I think we might at this stage be assisted by some submissions from the respondents.

MR DEMPSTER: If it please your Honour.

MR HOLDENSON: May it please the Court, if I might commence the submissions on behalf of the second respondent, Mr McGuire. The agreement the subject of the conspiracy the subject of the one count on this indictment was wholly made or reached within Melbourne within the State of Victoria, and that is common ground. Subsequent to the making or reaching of that agreement and pursuant to that agreement the drugs were sent from Melbourne to Perth and the sending of the drugs was therefore an act in furtherance of the agreement. The sending of the drugs, however, was not an element of the agreement.

In that context, if I might just pause for a moment to make reference to the judgment of your Honour Justice Callinan in the case of Lipohar and Winfield 200 CLR 485 wherein one of the paragraphs upon which we have relied, namely paragraph 227, where your Honour made reference to the sending of the fax – at paragraph 227 on page 573 your Honour held:

Neither any element of the offence, nor any event forming part of an element of the offence occurred in South Australia. The dispatch of the facsimile to South Australia was an act done in furtherance of the conspiracy, but it was not an element of it.

The issue which arose for consideration in the court below was whether or not an offence was committed under the law of Western Australia. The resolution of that issue depended upon the operation and effect of section 12. Your Honours will see at application book 33, as I recall, that section set out, but just by way of introduction if I might make two points concerning section 12. First, section 12 does not have the effect of creating a criminal offence and, secondly, section 12 is absolutely definitive of the jurisdiction of the District Court, and that proposition was not and is not the subject of any doubt. In that regard your Honours will recall the authorities cited in our outline of Hildebrandt, Robinson and then the subsequent Queensland Full Court decision of Gummer.

For an offence under the law of Western Australia to have been committed – and that is the wording of subsection (1) – the requirements of section 12 had to be satisfied. Now, in circumstances where it is absolutely trite that the offence of conspiracy has only one element, namely, the requisite agreement, then that is what, in our submission, brings an end to the satisfaction of the requirements of subsection (1). The proposition is not altered by the carrying out of an act pursuant to the agreement.

An overt act is not an element of the agreement the subject of the conspiracy charged, nor does it become an element: for example, in that regard, the passage in the judgment of your Honour Justice Callinan in Lipohar. Gummer makes that clear as in the judgment of his Honour Mr Justice Pincus at 354 and, of course, the same point was made by, first, Chief Justice Gleeson in Lipohar and again in several passages in the judgment of his Honour Justice Kirby. We have cited those passages in our outline.

If we make the assumption for the purposes of this application in this Court that section 12(1)(a) has been satisfied, the question becomes whether or not the requirements of paragraph (b) have been satisfied. If I might use a completely non-controversial expression, if I might use the word “thing”, the only thing which occurred in Western Australia in this case was the delivery of the drugs in Perth. On the assumption that the delivery of the drugs is an act or event or circumstance or state of affairs for the purposes of section 12(1)(b), the requirements of section 12(1)(b) are, nevertheless, not satisfied because such a thing does not make up any element or, in the context of this case more properly or precisely, the one and only element of the offence charged, being the making of the agreement.

CALLINAN J: I just wonder – and I am not asserting this – whether “thing” is something other than or may arguably be something other than an element of the offence, that is that “thing” is intended to be a wider term and to embrace something other than an element of the offence as referred to in (1)(b).

MR HOLDENSON: I assume your Honour in using the word “thing” in that exchange is making reference to the word “thing” in subsection (2). With respect to subsection (2), the first thing we draw the Court’s attention to is the fact that the opening phrase in subsection (2) is “Without limiting the general operation of subsection (1)”. In those circumstances, it is our submission that the intention with respect to subsection (2) is not to alter the operation of subsection (1). In other words, subsection (2) does not begin - - -

CALLINAN J: Not to enlarge the operation of - - -

MR HOLDENSON: Not to enlarge. It does not say “Notwithstanding what is said in subsection (1)”, et cetera. Secondly, in subsection (2), the words “event, circumstance or state of affairs” are referrable to those specified in subsection (1)(b), namely, “events, circumstances or states of affairs that make up” elements of an offence. The same applies to the words in the final line of subsection (2), the words “act or omission”, again referrable to the words “acts” or “omissions” in paragraph (b), which are of course acts or omissions which make up the elements.

The other point about subsection (2) – and it is referrable to the point just made by your Honour Justice Callinan – subsection (2) reads “Without limiting . . . that subsection applies even if”. It does not say “also applies if”. It does not enlarge the operation.

CALLINAN J: Or does not say “in addition to” or anything of that kind.

MR HOLDENSON: It does not say that. Subsection (2) does nothing other than make clear that Ward’s Case, the case about shooting the gun from the banks of the Murray and where the bank of the Murray was and so on, falls within and is caught by subsection (1). So in this case subsection (2) simply provides that it is of no consequence for the application of section 12(1) if the presence by way of delivery of the drugs in Perth is caused by an act that occurs in a place outside Perth, or the place would be Melbourne, the act would be putting the drugs in a box and sending them off to the transporter.

None of this is in any way contrary to the analysis in Pinkstone. Pinkstone was convicted of a substantive offence of supplying a drug to another contrary to section 6(1)(c). The material facts were Pinkstone in Sydney arranged for the delivery of the drug by Ansett Airlines from Sydney to Perth with the intention that the drug would be collected by Yanko at the Perth Airport. In accordance with Pinkstone’s contractual arrangement with Ansett Airlines, the drug was both delivered to the Perth Airport and unloaded from the plane by Ansett Airlines. That was held to constitute the offence of supply to another for the purposes of section 6(1)(c).

Reference was made by our learned friend, Mr Dempster, to the case of Pinkstone  [2004] HCA 23 ; (2004) 219 CLR 444 and reference was made by Mr Dempster to paragraph 16 at the foot of page 453. What that makes clear at the foot of page 453 in the joint judgment of Chief Justice Gleeson and his Honour Justice Heydon at paragraph 16 is three lines into the paragraph. It reads:

it was unnecessary for the prosecution to establish actual delivery of the cargo to Yanko, whether by Ansett or anybody else. This is explained in the reasons of McHugh and Gummow JJ. Having regard to the extended meaning of “supply” in s 3(1) of the Drugs Act, and to the matters clearly established by the evidence, obviously found by the jury, and not in dispute in this appeal, there was conduct on the part of the appellant, and Ansett acting pursuant to its contract with the appellant, that fell within the definition of supply, even before the cargo had been handed over to Yanko, or handled by the police.

The next sentence makes it clear. Therefore – and I am paraphrasing – the delivery of the drugs into Perth and available for collection by Yanko, albeit not collected by Yanko, constitutes an element of the offence and, of course, therefore section 12(1)(b) was satisfied. The wording of section 12(1)(b), an act which makes up an element. An element of the offence is supply to another, getting it to the place available to be physically collected by the intended recipient.

CRENNAN J: Just leaving that to one side for a moment, Mr Holdenson, going back to 12(2) and how that should bear on 12(1)(b) and your noting that the only act or event which occurred in Western Australia was the delivery of the drugs, (2) states that:

Without limiting the general operation of subsection (1), that subsection applies even if the only thing that occurs in Western Australia is an event, circumstance or state of affairs –

ie, delivery –

caused by an act –

ie, conspiracy –

that occurs outside Western Australia.

MR HOLDENSON: No, the conspiracy would not constitute an act for these purposes.

CRENNAN J: But is this not the very reason it is being argued on behalf of the applicant that all you really need is an overt act to occur in Western Australia to have the - - -

MR HOLDENSON: That is their argument, absolutely.

CRENNAN J: - - - section apply and they are drawing support for that argument from 12(2)?

MR HOLDENSON: Well, in our submission, they get no support from it when some work is given to the opening phrase, “Without limiting the general operation of subsection (1)”, in combination with the very same words that are used in subsection (1)(b) where those words, “omissions”, et cetera, make up the elements. Now, subsection (2) does not read in the same way as subsection (1), namely to render an offence committed. That is the wording within subsection (1), “An offence under this Code or any other law of Western Australia is committed if” - - -

CALLINAN J: You say that in order for the appellant to be correct you have to read “an act or omission” as if it said, in this case, caused by the offence, or caused by the agreement, or caused by the conspiracy?

MR HOLDENSON: Yes, caused by the offence committed or otherwise committed.

CALLINAN J: The agreement made instead of an omission or act occurring?

MR HOLDENSON: Yes. Now, with respect, it does not matter what the person said in Parliament with respect to his views.

CALLINAN J: Often the distinction between overt acts which are evidentiary matters really - - -

MR HOLDENSON: That is all they are.

CALLINAN J: - - - and the offence or the elements of the offence of conspiracy is not always well understood.

MR HOLDENSON: Well, if it were well understood, with no disrespect to anybody, this case would not have got here because what would have happened is there would have been a different charge and not a conspiracy charge. It would be Pinkstone all over again.

CALLINAN J: It is arguable that the draftsman of the legislation may not have understood the distinction too.

MR HOLDENSON: Every chance of that. As I read the second reading speech which is contained within the judgment of the learned President in the court below, one thing about the provision was it was designed to get around the problem of the old section 12 which required the presence of the accused or the defendant in the jurisdiction. That was the point upon which Gummer’s Case turned because, of course, Gummer had never been in Western Australia and - - -

CALLINAN J: Mr Holdenson, there would, I assume, have been offences in Western Australia. I know this is not completely relevant, but there were offences in Western Australia with which one at least, and probably both, could have been charged.

MR HOLDENSON: Certainly, the respondent Marchesi, assuming he was attempting to gain access to the drugs when they were received in Perth, but your Honour’s question might – and I do not mean this wrongly – have been - - -

CRENNAN J: It might have been a possession situation.

MR HOLDENSON: Yes, possession, substantive offence of possession, but - - -

CALLINAN J: I only ask that because, of course, this Court has stated some strictures or stated some reservations that prosecutors should have before bringing conspiracy.

MR HOLDENSON: It has been said time and again.

CALLINAN J: In fact, I think in Queensland now there has to be some sort of special leave or there is some condition precedent, I think, to the bringing of a conspiracy charge.

MR HOLDENSON: I was not aware of that, your Honour, I must say.

CALLINAN J: There was talk of it. I am not sure whether that happened or not.

MR HOLDENSON: In Victoria we have as a requirement a condition precedent to the bringing of a conspiracy charge, the requirement of the consent of the Director of Public Prosecutions himself.

CALLINAN J: That might be what I am thinking of. There is some like provision, I think, in Queensland.

MR HOLDENSON: My recollection is we had this discussion in brief in Truong some years ago when we were in the court down below. But other offences may well have been committed here in Victoria, keeping in mind these - - -

CALLINAN J: I would have thought there would be a real chance of that on the facts.

MR HOLDENSON: Yes. The Drugs, Poisons and Controlled Substances Act (Vic) would have caught all of that which took place in Melbourne because, of course, everything took place in Melbourne. The discussions, the packaging and the sending away all took place in Melbourne. That is why this is really not the right vehicle, at the end of the day, in any event. What has occurred here is entirely in accordance with Pinkstone and entirely in accordance with, as a matter of fact, Lipohar. Now, I understand Lipohar was a common law case, I understand that, but everything which fell from the Court in Lipohar went back to the proposition that the mere overt act of the sending of the piece of paper from outside the State of South Australia into the State of South Australia was a mere overt act of the offence committed.

CALLINAN J: Did any other member of the Court deal with that the way I did?

MR HOLDENSON: Yes, Justice Kirby in four separate places and they were - - -

CALLINAN J: Do not trouble about it, but he did.

MR HOLDENSON: Also Chief Justice Gleeson. Indeed, Chief Justice Gleeson at paragraph 20 on page 499 of the report in Lipohar said:

Technically, the elements of the offence of conspiracy occurred outside South Australia, and it is at least doubtful that there was a territorial nexus between an element of the offence and the State.

Now, the phrase “territorial nexus” was referable to section 5C of the State Act, but he uses the language also of the Act which happens to be the language of section 12(1). “Technically, the elements of the offence of conspiracy occurred outside South Australia”, same case. Here, entirely outside Western Australia, in Melbourne. It is subsection (2) which does not have the effect of expanding what otherwise would be the operation and effect of subsection (1) because of the way it is drafted: “Without limiting the general operation of subsection (1)”. The language within that section is simply referable back to the very language of paragraph (b). In those circumstances, his Honour Justice Steytler in the leading judgment, in our submission, was entirely correct when he said and held at the very foot of page 36 of the application book in paragraph 37:

Subsection (2) seems to me not to detract from that proposition. It is expressed to take effect without limiting the general operation of subs (1). Its effect, if both subsections are read together –

as they must, if I might interrupt –

is only that, while an act, omission, event, circumstances or state of affairs making up an element of the offence must occur in Western Australia, it does not matter, in the case of such an event, circumstances or state of affairs occurring in that State, that it was
caused by an act or omission that occurred outside that State (as, for example –

and that is Ward’s Case there referred to. Your Honours will see, of course, that we relied upon in the court below the case of Re Bolton; Ex parte Beane which is of course quoted within paragraph 39. The task of the court is to construe the legislation, not the words of the Member of Parliament. The words are plain, albeit – I know we have had a bit of a discussion about it, but the operation and effect of the words are plain; does not catch conspiracy; does not mean that criminals or persons who engage in conduct of this nature skate free. Pinkstone has made that clear. They are caught, indeed, by the very substantive offence the subject of this conspiracy. The conspiracy in this case is brought by way of a combination of two provisions within the Misuse of Drugs Act (WA). It is section 6(1) which contained the offence the subject of prosecution in Pinkstone and, indeed, the offence the subject of the conspiracy provision in this case. The red light has shown and, in those circumstances, if your Honours please.

CALLINAN J: Thank you, Mr Holdenson. Thank you, Mr Haag.

MR HAAG: Your Honours, I adopt all that my learned friend has said and I simply and quickly make this point. Section 12 on its face does not blur the distinction between the agreement itself and the overt acts and the purpose of that Act. My learned friend for the appellant is effectively contending that section 12 does in fact do away with that distinction. On its face, it does not. If the Court pleases.

CALLINAN J: Thank you. Yes, Mr Dempster.

MR DEMPSTER: Your Honours, the decision in Gummer in fact was the forerunner of these 1996 amendments and the language of section 12 is broad. If the Court of Appeal interpretation is correct, we reach the result that, in effect, not only has jurisdiction not been extended for conspiracies, but it has been lost for conspiracies in the sense that the common law does not apply.

CALLINAN J: But Western Australia is a Code State.

MR DEMPSTER: It is indeed.

CALLINAN J: The common law has very little or no application there at all.

MR DEMPSTER: Yes, and I only refer to it by way of emphasis. The Parliament attempted in this way to extend jurisdiction and the net result, if the Court of Appeal interpretation is correct, is that not only has the jurisdiction not been extended, but we have gone backwards in the sense that – and while the common law does not apply, I am simply making the point there would have been jurisdiction at common law in relation to this matter. It is plain that section 12 applies to all offences. Section 12(1)(b) is broad in its terms. It lists the language of circumstantial evidence and conspiracies: “acts, omissions, events, circumstances or states of affairs”. I note what has been said about the preamble qualifying clause in subsection (2) - - -

CALLINAN J: But what about the words “caused by an act or omission that occurs outside Western Australia”? The only act or omission was the entire act or omission, the conspiracy, the agreement.

MR DEMPSTER: Yes. The intention there is - - -

CALLINAN J: It does not fit so easily, does it?

MR DEMPSTER: It does not, although I think the intention is to emphasise that even if only one of those “acts, omissions, events, circumstances or state of affairs” occurs, if that is all that occurs and that is caused by an event outside Western Australia, then there is jurisdiction. We come back to the phrase “make up”, and that is the critical phrase. That is what this whole matter turns on.

CALLINAN J: But that make up the elements, Mr Dempster, that make up the elements, not make up the overt act. It is the elements.

MR DEMPSTER: I understand that, your Honour, but - - -

CALLINAN J: What happened in Western Australia was not an element of the offence and did not make up an element of the offence or any part of it.

MR DEMPSTER: That is accepted, but if one goes, for example, to Truong, if I can go back to that authority, when one is dealing with conspiracies as at the top of page 82 of that judgment:

There was more to it than that. Agreement (here, agreement to commit a crime) is the essence of conspiracy, but the nature and scope - - -

CALLINAN J: It is the whole of the conspiracy. It is not the essence of conspiracy. The agreement is the crime.

MR DEMPSTER: And yet it goes on:

is the essence of conspiracy, but the nature and scope of the alleged agreement is important when performing the exercise, required by the statute, of identifying the acts or omissions by virtue of which the particular offence of conspiracy in question has, or is alleged to have, been committed.

We are saying that there is more to it and in the way that section 12(1)(b) was construed in Pinkstone there is more to it. Had the Court of Appeal interpretation been applied with respect to that definition of “supply” we would be talking about an act of sending and no more, but, as Pinkstone makes clear, there was more to it and it is on that basis - - -

CALLINAN J: But Pinkstone was a different offence.

MR DEMPSTER: Indeed, your Honour, but there was interpretation and construction of - - -

CALLINAN J: Everything that was said that might appear to be relevant to conspiracy is obiter.

MR DEMPSTER: It was relevant to section 12(1)(b), your Honour. That is why we refer to it because there has been an interpretation of this Court of section 12(1)(b) in that broad sense.

CALLINAN J: But not in its application to conspiracy.

MR DEMPSTER: That is correct.

CALLINAN J: Is there anything further, Mr Dempster?

MR DEMPSTER: I am not sure I can add to it. Thank you, your Honour.

CALLINAN J: Thank you. We will retire briefly to consider what we will do in these matters.

AT 1.46 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.49 PM:

CALLINAN J: In these matters we are not persuaded that there is sufficient doubt attaching to the decision of the Court of Appeal of Western Australia. Accordingly, the application for special leave is refused in both matters.

MR HOLDENSON: Your Honour, I rise in order to assist the Court with respect to one matter. With respect to the second application, that is the application brought by the applicant against McGuire, an extension of time was required so I just respectfully query whether an appropriate order was to refuse the extension of time.

CALLINAN J: The extension of time by the applicant?

MR HOLDENSON: Yes, they were out of time, with respect.

CALLINAN J: We would allow that but dismiss the application. Thank you for drawing our attention to that, Mr Holdenson.

MR HOLDENSON: The second matter is that which is set out on page 93 of the application book in the outline of submissions prepared on behalf of the second respondent. Your Honour will see on page 93, paragraph 26, it reads:

Should this Application be refused, then it is only appropriate that the Applicant/Crown –

albeit I should say the State of Western Australia –

be ordered to pay the Respondent’s costs.

We have there cited the three decisions of the High Court, each of which are authority for the proposition that where the Crown brings an application for special leave to the High Court and the application is refused, then it is appropriate to make an order for costs in favour of the respondent. One of those, of course, was Benz where the High Court split 3:2 and each of the members of the majority determined that the application for special leave be refused with costs and, again, in Martin and Whitworth.

One of the matters which was the subject of reference in one of those cases – I do not submit that it is a material consideration but it was the subject of reference – was that the respondent was not legally aided. I can certainly indicate to your Honours that the respondent McGuire is not legally aided and, in those circumstances, in accordance with each of those authorities, the Crown, or now called the State, having been unsuccessful, it is only appropriate that there be an order for costs. I could assist the Court further with the authorities, I have them on the Bar table, each and all of which are very short.

CALLINAN J: We will see what Mr Dempster says first, if you do not mind, Mr Holdenson, please. Yes, Mr Dempster.

MR DEMPSTER: Your Honours, that is a matter of discretion, really, that these authorities are somewhat old but the regular practice in criminal matters has been not to order costs. I cannot take the matter any further than that.

CALLINAN J: I am not familiar with the cases. What does Benz say?

MR HOLDENSON: There is no reasoning in Benz, however at page 128 at the conclusion of it Justice Deane simply says, “I would refuse special leave with costs.” Again, in the joint judgment of Justices Gaudron and McHugh, it is simply one line, “Special leave to appeal should be refused with costs.” And at 146 of the report it indicates that the order of the Court was, “Application for special leave to appeal refused with costs.”

Perhaps if I could take the Court to Whitworth and read to your Honours a passage from the judgment of the Court at page 121 in Whitworth. It reads:

The Crown’s application for special leave failed.

In R v Martin –

and that is the first authority there cited –

the Crown failed in an application for special leave to appeal from a decision of the Court of Criminal Appeal of South Australia which set aside the conviction of the respondent for manslaughter and ordered a new trial. In that case, the respondent not being legally aided, the Crown was ordered to pay the respondent’s costs.

Although there is jurisdiction to award costs against the Crown in a criminal case, it is a longstanding practice not to award costs when a convicted person successfully applies for special leave to appeal or succeeds on appeal. However, an application for special leave to appeal by the Crown is an exceptional proceeding and there is no reason the jurisdiction should not be exercised in appropriate cases. In this case an order for retrial was made and the result of the particular prosecution will be determined on the retrial. But the Crown sought special leave to appeal in order to canvass the construction of s 304A as a matter of importance to the general administration of the criminal law. In those circumstances it is appropriate to order the Crown to pay the costs.

It is ordered accordingly.

I can indicate that I have been a successful applicant for costs in the past, albeit the case in which – that was a Melbourne case and it was not authoritative in the sense - - -

CRENNAN J: This case involved an acquittal by direction, did it not?

MR HOLDENSON: Yes, there was an acquittal by the learned trial judge by direction. The point was taken at trial, resolved in favour of the present respondents, challenged by way of the exceptional procedure they have in Western Australia – they also have it in Tasmania, of course – to challenge an acquittal. We held the point there. It was fully argued there and here we are again with the same point.

CALLINAN J: Were costs asked for in the Court of Appeal?

MR HOLDENSON: No.

CALLINAN J: So you will have to pay them - - -

MR HOLDENSON: There would not have been, I rather suggest, jurisdiction to make an order for costs in favour – I suggest, I do not conclusively submit. In any event, we did not make any application for costs in that court and we telegraphed our intention at an early stage in this Court in paragraph 26, which is, of course, our first document.

CALLINAN J: Thank you, Mr Holdenson. Do you have anything to say Mr Haag, in addition to what Mr Holdenson - - -

MR HAAG: Mr Marchesi is not legally aided and I adopt each of those submissions by my learned friend.

CALLINAN J: Thank you. In these cases, we are of the opinion that, having regard to the fact that the respondents were successful at first instance in the intermediate Court of Appeal and again here and that this is a Crown appeal which has been pursued not only in the Court of Appeal but also here, there should be an award of costs in both matters. So the applications are dismissed with costs.

AT 1.57 PM THE MATTERS WERE CONCLUDED