SKA v The Queen transcript

I often think that it must be anticlimactic when you are briefed by a respondent to resist an application for special leave to appeal and the High Court dismisses the application without calling on you. At least, though, you walk home with a win.

But last week in the special leave rundown, I mentioned that the High Court had referred the application for leave to appeal in SKA v The Queen [2009] NSWCCA 186 to an enlarged court. Looking at the transcript reveals that the Court referred the application to the Full Court without calling on the respondent. That’s got to be frustrating.

Some highlights from the transcript ([2010] HCATrans 198):

This exchange between Gummow and Heydon JJ and Tim Game SC brilliantly displays how evidence law can lead you straight down the rabbit hole.

GUMMOW J: [discussing evidence of a video] Are you saying the evidence is therefore more than what was said?

MR GAME: The evidence is more than what was said, yes. The evidence is what was said and what was seen.

GUMMOW J: So there is real evidence, in other words. Is that the idea?

MR GAME: Yes, your Honour, it is - - -

HEYDON J: Technically, the video is the evidence and the transcript is merely an aid to understanding.

MR GAME: That is right, yes. Even the video is not evidence. It is the sounds and pictures that you see.

HEYDON J: It is the experience of looking at it.

And – I know I’m immature but – either there is a transcription error or Gummow J thinks Tim Game is a woman:

GUMMOW J: Yes, Ms Game.

MR GAME: If the Court pleases…

The phrase “if the Court pleases” takes on a whole new meaning.