#holdenson

MR HOLDENSON: There is no unfairness, no disadvantage, no prejudice to the Crown in such a case in denying the prosecutor the so-called entitlement to present a final address to the jury on the assumption that the Prasad invitation is what is set out in paragraph 7 of the outline of submissions.

BELL J: I take it, Mr Holdenson, you have the view that, contrary to some extravagant estimates made by counsel, advocacy has no power to persuade?

MR HOLDENSON: I do subscribe to the theory that some advocates can persuade. Some advocates in fact can be described as being truly seductive.

MR HOLDENSON: In any event, section 48 should be construed against – and when I say section 48 I mean the terms set out within section 48 including the phrase “required to retire to consider its verdict” is to be construed against the relevant common law backdrop which includes, in our submission, what is in Prasad.

NETTLE J: I was laughing because I used to think that about the Evidence Act but I have learnt otherwise on the job.

MR HOLDENSON: The problem with the Evidence Act is it is cryptic.

MR SILBERT: Can we say at the outset that the Crown did not change its position in relation to the way in which the manifest inadequacy was run. It is unfortunate that the appellant’s written case referred to by my friend is not before the Court. [...]

KIEFEL CJ: Mr Silbert, do you think we should have the document provided to the Court?

MR SILBERT: I think it would be of assistance, your Honour. The difficulty is that my junior has just gone and drawn on it. [...]

MR HOLDENSON: Would the Court be assisted by me providing a non-handwritten-on appellant’s written case to the Court crier?

KIEFEL CJ: A clear copy would be useful.

MR HOLDENSON: Before I give the final answer to your Honour, my junior and I are going to work on this at lunchtime in accordance with what I said to Justice Hayne a little earlier. So nowhere in any of those passages in the - - -

HAYNE J: Well, sorry, could I just add to your homework on that subject that - no good pointing off to your left, Mr Holdenson, I am adding to your homework.

LATER: [...]

MR HOLDENSON: As to that not being an oversimplification of the Crown case, it was put in really not many more words in paragraph 8 of the applicant’s submissions on this application. Paragraph 8 sets out in about eight lines that which your Honour just put to me, and then the last two lines read; 'In such circumstance, the resulting price is an ‘artificial price’ and thus the transactions contravened - - -'

FRENCH CJ: It is good to hear you are not condemning me for plagiarism.

FRENCH CJ: Yes, but do you define that? How do you identify that?

MR HOLDENSON: It is what comes after the impugned transaction and indeed - - -

FRENCH CJ: Yes, but is that what goes up on an ASX board or - - -

MR HOLDENSON: I do not know that they have boards now. Now, this is explained - - -

FRENCH CJ: Or whatever they do - screens.

MR HOLDENSON: Yes, screens.

KIEFEL J: There will be an extension of time in this matter and a grant of special leave. Would the parties contact the Registrar about the time for submissions and, of course, before they leave today and, of course, the Court regards compliance with the timetable as important.

MR HOLDENSON: We will not let your Honour down.

KIEFEL J: Well, the Court, I think.

MR HOLDENSON: The jury, having returned to the jury room, requested the provision of a dictionary; that dictionary turning out to be the two volume 1959 edition of the 1952 Shorter Oxford English Dictionary. In the light of the question which had been asked by the jury during its deliberations, the jury had clearly failed to recognise that the phrase "beyond reasonable doubt" was a composite phrase.

LATER: ...

GLEESON CJ: What does counsel mean by, "I'm not going to jump up and down about it"? I do not want you to answer that question by giving me a dictionary with the word "jump". I think the expression "I'm not going to jump up and down about it" is a composite phrase which I would understand to mean, I am not taking a formal objection.

MR HOLDENSON: I think it is fair to say it was an objection about the course that was proposed in the request.

GLEESON CJ: Anyway, you are here jumping up and down about it.

MR HOLDENSON: Well, we jumped up and down about it in the court below...