TRANSCRIPT OF POLICE ENTRAPMENT CASE ON OLD PACIFIC HIGHWAY

You will recall there was a recent win in the courts against the NSW police who were found to have been reckless (among other things) in the way they entrapped motorcycle riders into overtaking them on double yellow lines and then fining them.

Here is a transcript of the Magistrate’s findings.

Makes for very entertaining reading.

The police response?

Oh, well they said they will keep on doing what they do in order to target dangerous driving.

I think they said this while eating a plate full of penises.

IN THE LOCAL COURT

CENTRAL

MAGISTRATE WYNHAUSEN

TUESDAY 16 AUGUST 2013

R v James WARD

OFFENCE Not keep left of dividing line – not class B/C vehicle

Sergeant Mansour for the Informant

Mr Klaricka for the Accused

—

HER HONOUR: By way of background, on 16 September and 23 September 2012, that is two consecutive Sundays, the Ku-Ring-Gai highway patrol, officers from that patrol, conducted an operation. That operation also involved officers from the regional enforcement unit, known as the RES. Leading Senior Constable Boyd of the Ku-Ring-Gai highway patrol, who is an officer of, on his evidence and which I accept, many years experience and has been attached to that unit since the mid 1990s. The location of the operation was a section of the Old Pacific Highway between the Brooklyn Bridge to the south and the Mooney Mooney Bridge to the north. It was Leading Senior Constable Boyd’s evidence that the operation was part of a multi-phased approach to addressing complaints, especially complaints about motorcycle riders on the wrong side of the road and also, on his evidence, to show a police presence, although this, of course, was an undercover operation.

The vehicle involved, on both Sundays, was an unmarked, SUV-type vehicle belonging to the RES, the regional enforcement unit. It was to drive up and down the location that I’ve already referred to. It was to contain four, plain clothes police officers and I note that, apart from Leading Senior Constable Boyd, the other personnel were different on the two individual occasions. The front seat passenger was to operate a video camera and to film any driver who overtook on double, unbroken lines, as the vehicle went around the SUV. There was no footage before the Court of any vehicle approaching the SUV.

The backseat passenger, as I understood it, for example, on the 16th of the 9th – that was Senior Constable Meppen – was to, by phone, relay to the stop crew, a crew of uniform police officers at the Kangaroo Point exit on the Pacific Highway, Brooklyn, details of any vehicles, such as a make, model, registration number and so on. While the evidence of the prosecution witnesses, or particularly Leading Senior Constbale Boyd, was that all drivers were targeted, on his evidence, a total of 68 tickets were issued, all of which were to motor cycle riders.

Leading Senior Constable Boyd’s evidence was that, during the briefing on

both days prior to the car going on the road, instructions were given to the undercover crew (a) to keep to the speed limit, being 60 kilometres an hour, and (b) to keep as close to the centre line of the road, being a single line in each direction. Video was to be taken, as I said, of an vehicle going around the undercover vehicle. Exhibit 1 is a video drive through, in other words, it is in another type of vehicle. As I understood it, it was in a standard, marked police vehicle belonging to the Ku-Rin-Gai patrol.

The video indicates the stretch of road. It also indicates the type of road and I also noted the speed limits. The maximum speed limit was 60 kilometres an hour. The stretch of road a single lane in both directions. On this particular stretch, with curves and bends, there were no hairpin bends, although there were some sharper bends with advisory road signals, signs of 40 kilometres an hour. There were also straight areas of road. There was a minimum shoulder in parts with barriers on both sides in parts. I’ll come back to exhibit 1.

On 16 September, the driver was Detective Sergeant Fruhstein from the RES. He is a silver certificate police driver, but not a highway patrol officer. I understood that certification qualifies a driver to, among other things, take parts in disputes and I understood it to be a higher qualification than the standard driving licence qualification of general drivers on the road. There was a front seat passenger, Senior Constbale Zarjak – I hope I have pronounced her name correctly – and two rear passengers. Senior Constable Zarjak was also from the RES. In the rear was, as I’ve already said, Senior Constable Meppen and Leading Senior Constable Boyd. Both Meppen and Boyd, as I have noted in the case of certainly Boyd, were from the Ku Rin Gai highway patrol and both were experienced officers.

On 23 September, Senior Constable Cox was the driver, again, from the RES. Again, a silver certificate driver. Senior Constable Spencer was the video operator in the front passenger seat. His evidence was, as the evidence with regards to the 16th of the 9th, that there was no video of vehicles on approach, but there was video of vehicles going around or overtaking the covert vehicle. The evidence of all five defendants is that, on both occasions, the covert vehicle was being driven in what was described as an erratic manner, such that each individual rider separately felt it was necessary to overtake in the interests of their own safety.

Roderick Ward’s evidence was that the grey SUV, the vehicle in question, pulled out ahead of him at a distance of some 50 metres on a down-hill gradient from a side bay, with the wheels spinning after a sharp bend. James Ward, his brother, who was riding behind him on his motor cycle, his evidence was that he saw his brother brake heavily in order to avoid the vehicle. James Ward’s evidence is also that he could see the occupants moving around inside the vehicle and he could see one occupant with a camera. The evidence of both wards is that the vehicle accelerated then slowed to well below the speed limit, at least on two or three occasions.

When asked why he had not pulled over to avoid what he described as erratic driving, Roderick Ward’s evidence is that, at that location, there was minimal road shoulder and a barrier on his side of the road. James Ward’s evidence was that, at the time, he made an assumption that the passengers in the vehicle were tourists who were lost because of the manner of driving, and his and his evidence, further, was that the vehicle would veer from the left and slow down giving the impression that it was making room for overtaking, only then to veer back towards the centre of the road.

I should also say that before I leave the prosecution evidence, which I will come back to, that in general terms both on 16 September and 23 September there was overall consistency amongst the prosecution witnesses regarding their stopping for meal breaks as well as for the use of facilities and for having smoke breaks on the side of the road. I should say the meal breaks were, it seems, at an establishment, a café, on the road at the end of the route, but there was also an overall consistency that on both days there were smoke breaks on at least more than one occasion.

I also note that the covert crew took breaks when it received a message, advice, from the stopping crew that there was a back up of riders who had been pulled over and some further time was required at the stopping crew end before additional riders were to be sent to them. Mr Salimi’s evidence was that the vehicle pulled out in front of him – this is, of course, on the 16th of the 9th – causing him to brake so as not to collide with it. He said he followed it for some time and after the vehicle proceeded to slow down and then accelerate on a number of occasions, his evidence is that he overtook on a straight stretch of road near Joel’s Bridge because he believed it was the safest option. His evidence was also that he saw the occupants moving around inside.

On the 23rd of the 9th Mr Greene Smith’s observations were that from the manner of driving and what he says he observed to be a veering from left to right across the lane and from slowing and accelerating, he made the judgment that it was safer to get away from this vehicle than to remain behind it. The next day the Ward brothers returned to the area and took photos of, on their evidence, is where they say the bay was from which the stationary vehicle pulled out in front of them. These came before the Court as exhibits, on the voir dire, 7 and 8. Exhibit 7 is a close up of the exit from a stopping bay. There’s a barrier at the side of the road. It is just before, what appears to be, a fairly sharp bend. There are double lines in the centre of the road and there are skid marks visible in the road – it is not a tarmacadam road – in the dirt road surface. Exhibit 8, one is a long shot of the same area and there are other close up shots.

Of course, these photographs were taken the day after. As far as the skid marks are concerned any skid marks can have no weight, that there having been time passed and no other direct link, but I do take note of the location where the Ward brothers say the covert vehicle drove out in front of both of them. With respect to the notice that was put up in the café, Mr Roderick Ward made concessions that the notice did, indeed, mention the fact that the vehicle in question was an SUV and used the word “enticed” and pulled out in front of. Mr James Ward agreed with that, because both their evidence was that they received a number of responses and, indeed, the responses they received included those from Mr Salimi and Mr Rogers and all defendants and I accept that evidence, say, of course, apart from the Ward brothers, say that they had never had any contact or met any of the others prior to the 16th of the 9th or the 23rd of the 9th.

I note that after the 23rd of the 9th Mr Greene Smith put up a similar notice at the Mt White Café. That was the café at the northern end of the stretch of the road. The Ward brothers agreed that they had discussed the incidents with each others. All the defendants agreed that they were annoyed by what had happened and Mr Greene Smith’s evidence was that when he queried the speed of any covert vehicle, he was told by Sergeant Fisher, one of the stopping crew who pulled him over that other riders had not overtaken and he should have been patient. Sergeant Fisher, in his evidence, could not recall having said these words.

Exhibits 3 and 4, statements of Sergeant Lewis, one of the stopping crew, under cross examination, recalled no use of the words “entrapment” or “enticement” spoken by either of the Ward brothers. Senior Constable Kentish, who pulled over Mr Salimi and Mr Rogers, agreed that they did use the word “entrapment” and, indeed, other riders, who had also been pulled over, used similar language. Sergeant Lewis’ evidence is that there were a number of complaints made to him on that day by riders who had been issued tickets claiming that any covert vehicle was travelling at a slow speed.

As to the location of the stopping bay, where breaks were taken by officers, I have already noted exhibits 7 and 8, those photographs tendered by the Wards and Roderick Ward’s evidence of the location as a tricky section of the road being on a bend. Mr Salimi’s evidence was similar. The evidence of Leading Senior Constable Boyd, who was the officer in charge, as I have said, was that he was the one who chose the location for the breaks, being in the vehicle on both occasions and also being very familiar with that road. His evidence was that the location was not on a bend. He identified a straight section on the road on exhibit 1, the footage of the route, though looking at Senior Constable Mappin’s evidence, he located the stopping bay at a different time on exhibit 1 and, it seems, in a different location.

Senior Constable Boyd said he chose that location because it was near an access road and that could facilitate the vehicle making U turns if necessary. Detective Sergeant Froystein was the driver, as I have already noted, on the 16th of the 9th. He was unable to recall the location of the breaks, the bay where the breaks were taken, but says it was on a straight stretch of road with 200 metres clear vision in both directions. Certainly I accept he, being not a highway patrol officer, was not familiar with the road, but also Senior Constable Zijak, the front seat passenger, the passenger with the video camera, was also unable to identify the location of the stopping bay, but, in contrast to the evidence of Froystein, said it was on a downhill gradient and on a bend, which is more consistent with the evidence of the defence witnesses.

Neither, it would seem, Froystein or Zijak made contemporaneous notes. Froystein has no, on his evidence, specific recollection of any of the individual defendants, there being a large number of motorcycles on the road, he says, many of which overtook the covert vehicle. He denied claims that he was made by both the Wards and Salimi that he pulled out in front of them from the stopping bay and he denied claims that he proceeded to alternate between accelerating the vehicle and slowing it to speeds well under 50 kilometres an hour. He maintained that he drove close to the centre line and kept to a speed of between 50 and 60 kilometres an hour. He denied deliberately baiting any motorcycle riders, though he agreed, at times, it was necessary for him to slow to between 30 and 40 kilometres an hour when bends required him to do so. He denied applying brakes abruptly.

Senior Constable Zijak, in the front passenger seat, says that she was able to see the speedometer and confirmed that the vehicle slowed for bends to 40 kilometres an hour for corners. She also agreed that the vehicle pulled out from the stopping bay location and accelerated to 60 kilometres an hour on one occasion, but did not recall any motorcycles coming up behind or on the two specific occasions when the evidence of the defendants is that this happened and she denied that Froystein was deliberately driving slowly or appeared to be deliberately driving slowly on straight stretches when motorcycles were behind.

Sitting behind the driver Senior Constable Mappin also conceded that Detective Sergeant Froystein was driving at variable speeds. His role was to observe approaching vehicles and tell Zijak when one was coming around so that she could video it. He was also the officer who rang information through to the stopping crew. He denied that the vehicle pulled out in front of two motorcycles or on any other occasion. He also denied claims of any claims of baiting, of brakes being applied unnecessarily or that the vehicle was travelling at 30 to 40 kilometres an hour when it was not required to do so based on the road conditions.

Leading Senior Constable Boyd sitting in the rear on both occasions also denied that the vehicle was being, in any way, that could be described as menacing or reckless. He estimated the slowest speed at around 50 kilometres an hour. I am unclear whether that was on both or on one separate day. He says he was able to see the speedometer and the instruments, but was unable to recall how long each defendant was behind the vehicle but agreed all overtook on a straight road. On 23 September Senior Constable Cox, was the driver, denied deliberately applying the brakes when unnecessary to do so, slowing when conditions did not require him to do so. Also denies moving across the lane away to the left from the centre line. He denied knowledge of a number of complaints by riders extending across both days and said that when he made his statement he was not aware that claims have been made about police conduct on both days.

Mappin and Boyd made concessions that they were aware of complaints, as Zijak says that she was aware that there was an on line blog complaining about entrapment of motorcycle riders and also that she was aware that there had been correspondence to police re this and she also agreed that she had discussed these claims with Boyd and Mappin, who work at the same station, as well as Froystein, though when she was working with him in the RES, though she had not discussed the claims with Sergeant Lewis, Sergeant Fisher, Senior Constables Cox or Spencer.

I note, going back to exhibit 1 in the voir dire, that is, the drive view video, that Senior Constable Boyd was the driver on that occasion. He maintained a steady pace with the highest being 64 kilometres an hour and even on fairly sharp bends did not go under 55 kilometres an hour. I do, of course, acknowledge that the vehicle he was driving on the drive through was a lighter vehicle from the SUV and that, of course, would have had impact on its manoeuvrability, but I did notice the limited speed range in contrast with the evidence both of the prosecution witnesses and of the defence witnesses with respect to the variations in speed of the covert vehicle.

Despite the denials of the prosecution witnesses, there are inconsistencies with respect to the location of the brakes bay, the speed at which the covert vehicle was travelling at different times. There is also room for evidence to have – because of concession made and evidence that some of the police officers were aware of complaints being made to the police, both at the time of cycle riders being pulled over and in correspondence and by way of a blog that was set up on the evidence by one, if not both, of the Ward brothers, then, while I am not able to find certainly that there was any collusion among the prosecution witnesess in order to concoct any exculpatory versions of what happened.

I find that there may well have been some tainting of their evidence because of the opportunity to discuss the allegations against the police on that day. There are also inconsistencies with respect to the vehicle veering across the lanes and, as I’ve already noted, variations in speed. On the evidence, I am satisfied that the vehicle was being driven on both 16 September, that is, by Detective Sergeant Froystein and, on 23 September, by Senior Constable Cox in what could be described as an erratic manner, in other words – and I use the Macquarie dictionary definition – deviating from the proper course, or in conduct or opinion, having no certain course, wandering, not fixed.

I am satisfied on the evidence that the driving had some influence on the actions of the defendants and that, individually and separately, they would not have committed the offences were it not for the way in which the covert vehicle was being driven on both those days. I find that there was a causal relationship between the conduct of the police officers and the obtaining of the challenged evidence, based on those significant contradictions and inconsistencies in the prosecution evidence. Having made that finding of fact, the Court has to decide whether the conduct of the police was improper in accordance with s 138(1) of the Evidence Act. I turn to that now.

A discretion to exclude improperly or illegally-obtained evidence, evidence that was obtained (a) improperly, or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law. I look to the case of Robinson v Woolworths [2005] NSWCCA 426. In that case, there is reference to an earlier case of Papakosmas v R [1999] HC 37. At para 2, where the latter case provides a test for establishing impropriety and I quote from that para 2 of Papakosmas. It is necessary first to identify – para 2 of Robinson, I should say, more accurately – what, in a particular context, may be viewed as minimum standards which a society such as ours should expect and require from those entrusted with the powers of law enforcement.

Secondly, the conduct in question must not merely blur or contravene those standards in such a minor respect; it must be quite inconsistent with, or clearly inconsistent with, those standards. Thirdly, concepts of harassment and manipulation suggest some level of encouragement, persuasion, or impunity in relation to the commission of an offence. I should also come back to that. The facts in Robinson v Woolworths are indeed comparable to the proceedings in this case, while the facts are different, because the offence in Robinson was a strict liability offence. At para 38 of Robinson, the Court notes or states, “The circumstances of the particular case, including the nature of the offence and, in the context of regulatory offences, the purpose underlying the prohibition may give rise to different answers in different circumstances.”

In Robinson, the Court found that while the conduct of the law enforcement officers provided the opportunity for the commission of the offence, it did not involve the use of any form of pressure, persuasion, or manipulation, or harassment. I note in Robinson, at para 8, in the case of an offence which does not involve a criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance and, further, that a properly-run compliance program backed by the possibility of prosecution, where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law.

In the recent case of Leichhardt Municipal Council v Hunter [2013] NSWCCA 87, the Court, at 19, distinguishes offences of full mens rea, which requires proof by the prosecution of intention on the part of the defence to commit the acts comprising the offence, or proof of knowledge, or in some case, recklessness or negligence with respect to the facts and circumstances of the offence from offences of strict liability which do not require proof of mens rea, is presumed unless the defence raises the defence of honest and reasonable misstate of fact. Of course, that is not the situation here and the situation was very different on the facts in the matter of Leichhardt Municipal Council.

In the construction of the road rule in question here, that is, regulation 132, the words “wilfully” or “intentionally” are not included. The regulation simply requires compliance and its enforcement can be seen to be in the public interest to protect road users from those drivers or riders who do not drive in a safe manner. The monetary penalty is $298 and there is also a loss of three demerit points. This places the regulation notwithstanding the loss of three demerits points at the less serious end of the range of road related offences. The regulation is clearly one of strict liability as it satisfies the indicia of that class of offences as set out in Leichhardt Municipal Council.

Returning to the facts in this matter and whether or not the conduct of officers amounts to impropriety, there is a thread of consistency in the Court’s view in the evidence of all five of the defendants in that the conduct that they allege was such that they were concerned about their own safety because of the manner of the driving of the covert vehicle and this caused them individually to overtake despite the double lines. According to Leading Senior

Constable Boyd, as I have already noted, the drivers were instructed, in the briefing, to keep to the speed limit and close to the middle lines.

The Court has found that on at least the five occasions involving the defendants before the Court, this was not done. Considering then the scope of the covert operation, the declared purpose was to test compliance with the road rule 132 in the interests of road safety, but on the evidence and on the finding of the Court, the police officers went beyond the scope of this operation. It is of concern that there were senior officers involved in this operation including the officer in charge, Leading Senior Constable Boyd, and I also note that both Froystein and Cox had silver certificates. Returning then to the discretion in 138 of the Evidence Act, the testing Bunning v Cross (1978) 141 CLR 54, requires the Court to balance the competing requirements of public policy with the desirable goal of bringing to conviction the wrong doer, on the one hand, and, on the other, the avoidance of the undesirable effect of curial approval or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law.

Section 138(3) provides a non exhaustive but mandatory for this to take into account list of matters which the Court is to consider where applicable in the circumstances in order to determine whether to exclude evidence improperly obtained. I note that in R v Ireland his Honour, Barwick CJ, made it clear that the discretion to exclude evidence on public policy grounds extended to evidence obtained by unfair as well as unlawful conduct on the part of law enforcement officers. Looking then at 138(3)(a) and (b), clearly, there is probative value in the evidence and the evidence is fundamental in these proceedings as the prosecution case for each of the accused stands or falls on the basis of the prosecution evidence.

Regarding 138(3)(c) and the nature of the offence and the subject matter, this is a fineable, regulatory offence, as I have noted. I have noted the penalties, the loss of demerit points, the relatively small fine, the purpose, safety on the roads and the general interest of all road users in the community. Before considering 138(d), I will turn to 138(e) as to whether the impropriety was deliberate or reckless. On the evidence I’m not satisfied that the impropriety was deliberate, but on the balance of probabilities I am satisfied that it was reckless.

In reaching that conclusion I draw distinction between the impropriety being reckless and reckless driving under the traffic legislation specifically, that is, s 42 of the Road Transport Safety and Traffic Management Act 99. Under that legislation reckless driving, driving without giving any thought to the risk of causing physical injury to any road user or substantial damage to property or having recognised that risk exists, but still taking the risk, that is, Green v Lawrence (1981) 1 All ER 974, that is specific definition that is not within the scope of this matter. I am looking at whether or not there was recklessness in the overall conduct of the police officers involved in the operation, so that extends beyond the two drivers.

Here the Court finds that the impropriety was reckless and as the term is not defined in the Act, it gives it its common usage according to the Macquarie Dictionary, “Careless as to the consequences without caution.” Turning to 138(d), the gravity of the impropriety, R v Cornwell (2003) 57 NSWLR 82:

“Not every defect in adequacy or failing of an investigation should result in a finding that the section applies, merely because it may be considered as a result of these defects, inadequacies or failings that the investigation was not properly conducted or that the police did not act properly in a particular way.”

A cautious approach is to be taken then on any finding of misconduct, in this case, reckless conduct, of police officers, the Court take a cautious approach. I go back to the test as formulated in Robinson v Woolworths and paraphrase, the Court finds and is satisfied that on both 16 September and 23 September the conduct of the officers, that is, all the officers involved in the vehicles, including the drivers, was quite inconsistent with the minimum standards which our society should expect from police officers, as opposed to a minor contravention of such standards, and there was some level of encouragement, persuasion, or impunity in relation to the commission of the offences by the defendants.

While this is a regulation which does not involve criminal intent and, while the Court is, in Robinson, told that, therefore, the application of the test in Robinson is of limited significance, that case refers to what it calls a properly run compliance program and the Court, for the reasons given, has found that this operation was not an operation that could be called “properly run”. The Court is not able to find that the conduct of the police office was a minor deviation from standards which the community could reasonably expect.

I note that the defence handed up, and they both came into evidence as exhibit 9, a document, Code of Conduct and Ethics New South Wales Police, Statement of Value New South Wales Police. I do not intend to go through those. I have read those and I find that, looking at the standards, both in terms of the ethical standards and statement of values, the conduct of the police officers involved in the operations on both days falls far short of these general standards and, as I’ve said, returning to the words from the case of Robinson, this operation was not a properly-run, compliance program.

THE COURT FINDS THAT THE EVIDENCE OF PROSECUTION WAS OBTAINED AS A CONSEQUENCE OF AN IMPROPRIETY AND, HAVING CONSIDERED THE RELEVANT MATTERS UNDER 138(3), I FIND THAT THE UNDESIRABILITY OF ADMITTING THE EVIDENCE OUTWEIGHS THE DESIRABILITY OF ADMITTING IT AND THE EVIDENCE IS TO BE EXCLUDED.

For obvious reasons, I found it necessary to go into quite a deal of detail in that decision and hopefully I have, by doing that, covered all the areas in contention. Yes, sergeant, the Court having made that decision?

PROSECUTOR: The prosecution offers no evidence in relation to all five.

HER HONOUR: NO EVIDENCE OFFERED WITH RESPECT TO JAMES WARD, DISMISSED. I WILL JUST NOTE, NO EVIDENCE OFFERED. WITH RESPECT TO RODERICK WARD, NO EVIDENCE OFFERED, DISMISSED. WITH RESPECT TO – I WILL COME BACK TO MR SALIMI WITH RESPECT TO MR ROGERS, NO EVIDENCE OFFERED, DISMISSED. WITH RESPECT TO MR GREENE SMITH ON 23RD OF THE 9TH, NO EVIDENCE OFFERED, DISMISSED.

With respect to Mr Salimi, he has two matters. What do you say, Mr Klaricka?

KLARICKA: Your Honour, the submission would be that the evidence obtained in relation to the speeding allegation was in the same boat because I understand what was not used was an approved measuring device. It’s more of an estimate based on the speed of the vehicle travelling. Your Honour has found that there are variants in terms of the speed the covert vehicle was travelling, which would affect that reading in any event. The evidence obtained by the police was similarly obtained in the fashion that Your Honour has indicated. Therefore, obviously in that

HER HONOUR: Do you cavil with that sergeant?

PROSECUTOR: Your Honour, it was at the same time as the other offence was committed, so I can’t offer any evidence in relation to it.

HER HONOUR: NO EVIDENCE OFFERED, DISMISSED. Right. Thank you. Everybody is excused.

KLARICKA: Your Honour, I do have an application to make, with respect.

HER HONOUR: What is that?

KLARICKA: A costs application, but I cannot make that now, your Honour. The reason why I can’t is my instructing solicitor is not in the country at the moment and I’m uncertain as to what the exact costs are that were expended with respect to this matter. There’s a long history with this matter, your Honour. It had to go to

HER HONOUR: Firstly, I am going to order a transcript.

KLARICKA: Yes, your Honour.

HER HONOUR: I will just note it on Mr Roderick Ward’s file. What do you want to do? I do not think I would have entertained that today anyway because I have still got

KLARICKA: No, and I wasn’t going to make that application.

HER HONOUR: a full list.

KLARICKA: No, I noticed that this morning, your Honour, and it has taken the bulk of the morning this matter, in any event.

HER HONOUR: It has, yes.

KLARICKA: Your Honour, the application is for the matter to be stood over to a date that suits the Crown and the Court of course.

HER HONOUR: I will need to get my diary.

KLARICKA: Then I can get instructions from my instructing solicitor when he returns from Paris, of all places.

HER HONOUR: I will just go and get my diary. What I do intend to do is adjourn once we have fixed that date and we might take an early morning tea, but I will just go and get my diary. Thank you. We will just adjourn briefly.

SHORT ADJOURNMENT

HER HONOUR: Yes, thank you. I think we will need the diary. This will be it will have to be a Friday. Yes, I think it is going to have to be a Friday.

KLARICKA: Your Honour is waiting for the diary first. Before–

HER HONOUR: Yes. Which day?

KLARICKA: Is 6 September suitable?

HER HONOUR: No, I am at the Downing Centre that day.

KLARICKA: I need to, because, your Honour, I had a discussion with my friend. I suspect the major issue may well just be quantum in view of your Honour’s findings.

HER HONOUR: Right.

KLARICKA: I’m saying that without–

HER HONOUR: Is it a matter if you can have some discussions it might not need to come before the Court?

KLARICKA: I just don’t know.

PROSECUTOR: It probably would have to come before the Court, your Honour, just so everything can be put on record as well, however, I don’t anticipate it will be a lengthy costs hearing in light of your Honour’s finding.

HER HONOUR: It still needs to go to the diary.

PROSECUTOR: Certainly.

HER HONOUR: This matter was not in the diary because it was supposed to be in the Downing Centre and hence we have eaten up most of the morning.

KLARICKA: Most of the morning, yes.

HER HONOUR: Anyway, let us just make the date. If it is short then all the better.

KLARICKA: If your Honour pleases.

HER HONOUR: It is not a complex issue.

KLARICKA: No.

HER HONOUR: What about the following Friday, the 13th?

PROSECUTOR: Your Honour, that’s not suitable. All dates after that are suitable.

HER HONOUR: The 20th.

KLARICKA: I’m at Balmain, your Honour, on the 20th.

HER HONOUR: Mr Klaricka.

KLARICKA: Sorry, your Honour. Would your Honour permit maybe a 2 o’clock on the 20th?

HER HONOUR: That is a bit dangerous on a Friday.

KLARICKA: It is.

HER HONOUR: I would rather not do that.

KLARICKA: It has to be a Friday, your Honour?

HER HONOUR: It does in terms of my availability and the sort of matter that it is.

KLARICKA: The sixth was no good because you’re at the Downing Centre.

HER HONOUR: No, the sixth was no good. I am not here.

KLARICKA: And the 13th is open for the Crown.

HER HONOUR: 27th.

KLARICKA: 27th is suitable, your Honour, if that assists.

HER HONOUR: Yes, I think we will make it – is that suitable, sergeant?

PROSECUTOR: Yes, your Honour.

KLARICKA: Is that this Court, your Honour?

HER HONOUR: Yes. If you can come to some agreement by yourselves then it can always be vacated.

KLARICKA: Your Honour.

HER HONOUR: 27th. I will give it an hour.

KLARICKA: Yes, your Honour. I’ll attempt to–

HER HONOUR: Would an hour be sufficient?

KLARICKA: It will because I’ll attempt to provide an outline of submissions as well as a schedule of costs before the date so that then–

HER HONOUR: I have got to note it on all the files. Could I say that everybody else is excused until – we are taking an early morning tea – at least 25 to, thank you. I note I am part heard and stood over to 27 September. I mean it is possible, of course, to file consent orders.

KLARICKA: The sergeant and I have discussed all that, your Honour.

HER HONOUR: Yes. Cross application part heard. Actually, before anybody is excused I will mention the other matters. Is there anything else in the matters of Ward, Ward, Rogers, Greene Smith, Selimi today?

KLARICKA: No, your Honour.

PROSECUTOR: No, your Honour.

HER HONOUR: Bearing in mind the nature of the Court’s decision, I take it it will be conveyed to the authorities, Sergeant?

PROSECUTOR: Yes, your Honour.

HER HONOUR: Thank you. Yes, everybody is excused in that matter.

ADJOURNED PART HEARD TO FRIDAY 27 SEPTEMBER 2013