Booth v The Queen
[2022] ACTCA 46
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Booth v The Queen |
Citation: | [2022] ACTCA 46 |
Hearing Date: | 17 August 2022 |
DecisionDate: | 21 September 2022 |
Before: | McCallum CJ, Elkaim and Kennett JJ |
Decision: | (1) The appeal is allowed. (2) The conviction entered on 1 October 2021 is quashed. (3) Proceedings on charge CC2019/1404 are permanently stayed |
Catchwords: | APPEAL – CRIMINAL LAW – Principle of incontrovertibility – where accused was acquitted of aggravated burglary at jury trial – where accused subsequently convicted by Judge of related charge of minor damage property – whether prosecution of related charge controverted earlier acquittal – unfairness and oppression – conviction set aside and prosecution stayed as an abuse of process |
Legislation Cited: | Crimes Act 1900 (ACT) s 116 Criminal Code 1899 (Qld) Supreme Court Act 1933 (ACT) s 68D |
Cases Cited: | Abdallah v R [2019] NSWCCA 294 AJS v The Queen [2007] HCA 27; 235 CLR 505 TR v Director of Public Prosecutions [2020] NSWSC 255; A Crim R 527 |
Parties: | Richard Desmond Charles Booth ( Appellant) The Queen ( Respondent) |
Representation: | Counsel J White SC ( Appellant) K McCann ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 52 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Mossop J Date of Decision: 1 October 2021 Case Title: R v Booth Citation: [2021] ACTSC 226 Court/Tribunal: Supreme Court of the ACT Before: Mossop J Date of Decision: 1 October 2021 Case Title: R v Booth (No 2) Citation: [2021] ACTSC 255 |
McCallum CJ and Kennett J:
Introduction
The appellant (Mr Booth) was charged with aggravated burglary. The incident from which that charge arose is described in the remarks on the sentencing of Mr Booth’s co-accused, Melanie Booth: R v Booth [2021] ACTSC 223 at [7]–[17]. Briefly, Mr Booth, Melanie Booth and a number of other members of the Booth family travelled together in a minibus to premises occupied by a Ms Desi Connors and her three children. Some members of the Booth family attempted to enter the premises. An altercation occurred at the front door of the premises which resulted, among other things, in the door being kicked open and an assault on Ms Connors’ daughter.
Mr Booth was acquitted by the jury on the charge of aggravated burglary. The extent to which the reasons for that acquittal can be inferred will be discussed later in these reasons.
Mr Booth also faced a related charge of minor property damage pursuant to s 116 of the Crimes Act 1900 (ACT) (the property damage charge) which had been transferred by the Magistrates Court. That charge arose from the damage to the front door of the premises which had occurred during the altercation mentioned above. The property damage charge was dealt with at a subsequent hearing by the primary Judge, who had presided at the trial of the charges of aggravated burglary, as contemplated by s 68D of the Supreme Court Act 1933 (ACT).
On 2 July 2021 the jury returned its verdict on the charges on the indictment. On 30 July 2021 Mr Booth filed an application in proceeding seeking a permanent stay of the property damage charge on the ground that, in the light of the jury’s verdict, the continuation of that charge was an abuse of process. The primary Judge heard that application on 1 September 2021 and dismissed it on 1 October 2021: [2021] ACTSC 226. His Honour then conducted the substantive hearing on the property damage charge, which proceeded on the evidence led before the jury and some additional submissions by counsel. His Honour found Mr Booth guilty and gave oral reasons which were subsequently published: [2021] ACTSC 255.
Mr Booth appeals from both of the judgments referred to in the previous paragraph. He contends, first, that his Honour erred in failing to stay the prosecution and, second that the verdict of guilty was unreasonable and cannot be supported having regard to the evidence.
The appeal against the refusal of a stay has become moot in the sense that, with a conviction having been entered, there is nothing left to be stayed. However, if this Court is persuaded that the refusal of a stay was affected by relevant error, and that the prosecution should have been stayed as an abuse of process, it will follow that the conviction must be set aside. In that event it will also be appropriate to order a permanent stay.
The two limbs of the appeal lead, if successful, to different orders (one leads in our view to a permanent stay, the other to a verdict of not guilty). Despite that, the second limb falls away if the first succeeds: if the correct conclusion is that the prosecution was an abuse of process and should have been stayed on that ground, it is proper to order a stay rather than make an order that engages with the merits. Mr Booth’s second contention—that the verdict was unreasonable and not supported by the evidence—therefore needs to be addressed only if the Court is not persuaded that the proceeding should have been stayed.
The stay application
Mr Booth’s stay application relied on decisions establishing that a proceeding, or a step taken in a proceeding, constitutes an abuse of process if it is inconsistent with or calls into question a previous acquittal of the accused, and a plea of autrefois acquit is not available.
The judgment below
The primary Judge began his consideration in the present case by setting out the elements of the offence of aggravated burglary by joint commission (with which Mr Booth had been charged) in the following terms:
1.The accused entered into an agreement with at least one other person listed in the charge to commit an offence of aggravated burglary, that is, an agreement that one or more of the parties to the agreement:
(a)would enter or remain in a building:
(i) knowing that the person entering would be a trespasser; or
(ii) being aware of a substantial risk that the person would be a trespasser (and the jury considers that having regard to the circumstances known to the person at the time of the agreement it would be unjustifiable to take the risk);
(b)intending to commit an offence that involves causing harm or threatening to cause harm to anyone in the building; and
(c)do so in company.
2.The accused and at least one other party to the agreement intended that an offence would be committed under the agreement.
3.The following things occurred:
(a)one or more of the parties to the agreement entered or remained in a building;
(b)the person who entered the building was in company (with a person named on the indictment or another member of the group) when entering or remaining in the building; and
(c)the person who entered or remained in the building did so as a trespasser, that is, had no permission or other lawful entitlement to enter or remain in the building.
Next, his Honour set out the elements of the offence of minor property damage as follows:
1. the person caused damage to property other than by fire or explosive;
2. the damaged property belonged to someone else;
3. the person intended to or was reckless about causing the damage; and
4. the damage caused to property did not exceed $5000.
His Honour considered that the jury’s verdict was consistent with it not being satisfied beyond reasonable doubt that an agreement of the kind described in the first element of the aggravated burglary offence had been entered into. In particular, the verdict was said to be consistent with an absence of: (1) an agreement to enter or remain in a building; (2) an agreement to commit an offence involving causing or threatening harm to a person in the building; or (3) an intention to enter the building in company.
His Honour continued, at [18]:
In the circumstances of this case, it is most likely that it was the second component of the agreement of which the jury was not satisfied. However, it is not necessary to reach any conclusion on that issue. It is certainly not the case that as a matter of law the verdict of the jury necessarily involves a conclusion that the applicant was not at the door or that the applicant was not seeking to gain access to the residence. Further, it is unlikely that the jury reached its verdict on that basis and the maintenance of the damage property charge is neither inconsistent with nor has a tendency to undermine the acquittal on the aggravated burglary charge.
Thus, in his Honour’s view, if the property damage charge had also been decided by the jury, the jury could quite properly have found Mr Booth guilty on that charge while acquitting him on the joint commission aggravated burglary charge. Given that there would be no “necessary inconsistency” in the jury reaching those conclusions, there would also be no “necessary inconsistency” in a verdict of guilty being reached on the property damage charge by a judge alone (at [19]).
What can be inferred about the basis of the acquittal?
We have significant reservations concerning the primary Judge’s observation that the jury’s verdict was “unlikely” to have been based on a lack of persuasion that Mr Booth was present outside the door when it was kicked in, notwithstanding that his Honour had presided at the trial and seen the case unfold (and was himself persuaded that Mr Booth had damaged the door). The case that had been put by counsel for Mr Booth in his closing address was that “[the jury] cannot exclude the possibility that Richard Booth remained somewhere in the background and wanted nothing to do with it”; emphasis was placed on evidence given by one of the co-accused that Mr Booth had remained on the bus and not come to the house; attention was drawn to problems with the evidence that placed Mr Booth outside the door at the time it was kicked in; and his Honour had given the jury a clear and detailed direction to treat the evidence of identification with care. These aspects of how the trial ran appear to make it at least possible—and arguably likely—that a reason, if not the reason, why the jury acquitted Mr Booth was that it was not persuaded to the necessary degree that he had in fact gone to the door.
However, these points cannot be taken very far. Not only is the jury’s verdict inscrutable, in that it was not obliged to give reasons and did not do so, but it may be inaccurate even to speak of the jury having “reasons” for its decision. Subject to their duty to follow any directions given to them by the judge, members of the jury were not obliged to agree among themselves as to the reasons for their verdict: Cheung v The Queen [2001] HCA 67; 209 CLR 1, [7] (Gleeson CJ, Gummow and Hayne JJ). There may therefore have been a range of opinions within the jury as to what were the critical questions and what were the answers to them. It is not a case where particular points were conceded or otherwise not left to the jury, leading to its verdict necessarily turning on a particular issue.
If both charges had been considered by the jury (as the primary Judge postulated at [19]), conviction on the property damage charge might well have provided a strong basis for inference as to its reason for acquitting Mr Booth of aggravated burglary. That would be because the conviction would make sense only if the acquittal had been entered on a particular basis. However, that did not occur; instead, it was being proposed that a different tribunal of fact should determine the property damage charge.
All that can be said with confidence is that the verdict of acquittal is consistent with not all members of the jury being satisfied that Mr Booth was anywhere near the door when it was kicked in, while also being consistent with the jury accepting that aspect of the Crown case but not all jurors being satisfied as to the other elements referred to by the primary Judge. Beyond that, all is speculation.
The issue
Although the power to stay a proceeding is often described as discretionary, it is not a discretion in the strict sense. If the Court considers that the commencement or continuation of the proceeding constitutes an abuse, it does not have a discretion to allow it to proceed. The power is discretionary in a looser sense, in that the assessment of whether something constitutes an abuse is often one as to which minds may differ. That scope for evaluative judgment means that the principles that apply to appellate review of discretionary decisions properly so called also apply here: R v Carroll [2002] HCA 55; 213 CLR 635, [73] (Carroll); see also Minister for Immigration v SZVFW [2018] HCA 30; 264 CLR 541, [43]–[46] (Gageler J), [143]–[153] (Edelman J). That is, the decision is not to be interfered with unless the primary Judge acted on a wrong principle, took into account extraneous matters, ignored relevant matters or mistook the facts. If that has occurred, the appellate court may reach its own decision in substitution for that of the primary Judge.
The point of principle that arises in the appeal is whether, for the purpose of determining whether pursuit of the property damage charge amounted to an abuse of process on the ground of potential inconsistency with the jury’s verdict, it is:
(a)necessary for there to be “necessary inconsistency” (judged by reference to how the jury is inferred to have reached its verdict) between the verdict and a conviction on the property damage charge; or alternatively
(b)sufficient that a conviction on the property damage charge would contradict a finding or path of reasoning which might plausibly have been a basis for the verdict.
The High Court authorities
In Carroll, the respondent had been charged with the murder of a child. The only live issue in the trial was whether he had in fact killed her. He was acquitted by the jury. He was then charged with perjury, the allegation being that his evidence—that he had not killed the child—was false. The High Court unanimously agreed that the prosecution for perjury should have been stayed as an abuse of process.
Gleeson CJ and Hayne J identified the relevant principle (drawing on statements in R v Rogers (1994) 181 CLR 251 (Rogers)) as “the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct”: at [35]. The principle had been stated in various ways including, in Garrett v The Queen (1997) 139 CLR 437, 445 (Garrett) (Barwick CJ, with Stephen, Mason and Jacobs JJ agreeing) as:
the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict.
(quoted in Carroll at [37], with emphasis added)
Gleeson CJ and Hayne J observed that, since in most cases of trial by jury it is not known why the accused was acquitted, inconsistency if it exists will appear from “a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at trial” (at [40]). Approached in that way, Carroll itself was a fairly obvious case of inconsistency: because there was only one live issue in the murder trial—whether the respondent killed the child—the acquittal necessarily involved non-acceptance of the allegation that he did so; yet that allegation was central to the perjury charge (at [41]). It was not necessary to decide what were the limits of the principle (at [45]), including whether Garrett and Rogers stood for a principle broader than what was required to decide Carroll (at [47]).
Gaudron and Gummow JJ held that, on the proper construction of the relevant provision in the Criminal Code 1899 (Qld), the perjury charge was not viable and the respondent would have had a good demurrer to it (at [114]). However, that did not involve a rejection of the proposition that the laying of the perjury charge was an abuse of process: at [114]. Their Honours expressly agreed with Gleeson CJ and Hayne J that Rogers and Garrett stood for a proposition that “a prior acquittal itself cannot subsequently be controverted”, and that it was unnecessary to decide whether they supported a wider proposition: at [93]. Further, part of the reason why the relevant statutory provision was given a narrow construction was that, if read more broadly, it would authorise a charge that impeached the earlier acquittal: at [97]–[100]. The “interests at stake” in a case such as Carroll (described at [86]) included:
Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct. This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute.
McHugh J relied on the same statutory construction point, expressly as a “further” reason for agreeing that it was appropriate to stay the perjury charge (at [146]–[148]). His Honour held that the perjury charge was an abuse of process (at [118]), stating the relevant rule in the language of the statement in Garrett quoted above (at [138]).
Carroll did not resolve the question that arises in the present case: whether a criminal proceeding is to be regarded as an abuse of process, on the ground that it impeaches or controverts an earlier acquittal, only in cases of “necessary inconsistency” with findings that underpinned that acquittal or also where the proceeding casts doubt on the correctness of the acquittal. Correspondingly, the Court in Carroll did not decide the breadth of the principle for which Garrett stands. Garrett itself, however, does at least provide guidance on the key question here.
The appellant in Garrett stood trial for the rape of his former partner, alleged to have occurred in November 1975, and was acquitted. He was again charged with raping her (and with other offences) as a result of an incident in July 1976. The former partner gave evidence in the second case to the effect that on the earlier occasion he had had intercourse with her without her consent, she had made it clear she did not consent, and she had made a complaint. It appears from the trial judge’s summing up (set out at 442–443) that nothing could be safely inferred as to the reason or reasons why the jury had acquitted the appellant on that occasion; there were several possibilities. This was the context in which Barwick CJ made the statement of principle at 445, which we have set out above. His Honour held that the evidence was inadmissible on the basis that its “direct tendency” was “to establish rape on the earlier occasion”, and therefore it “inevitably challenged the verdict of acquittal”. Stephen, Mason and Jacobs JJ agreed.
Although the headnote in the Commonwealth Law Reports suggests that Murphy J dissented on the point, his Honour’s reasons appear broadly consistent with those of Barwick CJ. Murphy J said at 447:
This evidence tended to prove intercourse, absence of consent and the requisite intent. It was, if accepted, inconsistent with the accused’s acquittal on the earlier trial and was therefore inadmissible. It is not necessary to decide whether evidence showing that intercourse had occurred without her consent on 3rd November 1975 (but not tending to prove the requisite intent) would have been strictly inadmissible on the issue of consent in this case.
Garrett thus establishes that inconsistency with acquittal by a jury on an earlier charge, sufficient to require the exclusion of evidence, arises where the evidence points to the accused’s guilt on that charge. Inconsistency is not limited to cases where the particular reason for the acquittal can be deduced and the evidence contradicts the jury’s finding on that issue. The underlying principle is the same as that which applies in deciding whether a subsequent prosecution is an abuse of process, as the citation of Garrett in the later case of Carroll indicates.
In Nash v R [2019] NSWCCA 124 (Nash), [31], Macfarlan JA (with Harrison J agreeing) expressed the view that the broad statement of principle by Barwick CJ in Garrett should not be treated as authoritative on the basis that “reservations” had been expressed about it in Carroll. The correctness of this statement was in turn doubted by Bathurst CJ in Koloamatangi v R [2020] NSWCCA 52; 282 A Crim R 160 (Koloamatangi), [302] (Bell P and Price J agreeing).
We do not read the statements in Carroll (to the effect that the outer limits of the relevant principle did not need to be ascertained in that case) as intended to undermine the status of Garrett as an authority binding on lower courts. We also doubt whether it is correct, as Macfarlan JA suggested in Nash, that the statement of principle in Garrett is broader than was needed to decide the case. No doubt was cast in Garrett on the trial judge’s observation that the precise basis for the acquittal in the earlier proceeding could not be known. If that was correct, there was no necessary contradiction between the proposed evidence and the acquittal; and a principle of the breadth stated by Barwick CJ was necessary to the result. Hence, as suggested above, we regard the statement of principle in Garrett as part of its ratio, or at least “seriously considered dicta” which this Court ought to follow: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89, [134]. The other member of the Court in Nash, Hamill J, agreed with Macfarlan JA in the result but found it unnecessary to consider the status of Garrett.
It is appropriate to note three other decisions which predate Carroll: Mraz v The Queen (No 2) (1956) 96 CLR 62 (Mraz), R v Storey (1978) 140 CLR 364 (Storey) and Rogers.
The appellant in Mraz was charged with murder, it being alleged that the victim had died shortly after being raped by him. There was no issue that she had died shortly after having sexual intercourse with the appellant; the only issue was whether she had consented. The appellant was acquitted of murder but convicted of manslaughter. He was subsequently indicted on a charge of rape and entered a plea of issue estoppel, which ultimately succeeded on appeal.
The Court in Mraz reasoned that the acquittal of murder, in the circumstances of the case, necessarily negatived the proposition that the appellant had committed the crime of rape. The particular statutory provision under which the appellant had been charged required proof that he had committed rape and that, during or shortly after the commission of that crime, an act of the appellant had caused the victim’s death. The conviction of manslaughter meant that the jury was satisfied he had caused her death. That left, according to the record, two possible explanations for the verdict: (a) that he did not commit rape, or (b) that the victim’s death (although caused by his act) was not caused during or immediately after the commission of a rape. The Court held that it was permissible to look beyond the bare record to the matters actually in issue. Because the only live issue was consent, it was possible to exclude explanation (b). Mraz (like Carroll) is thus a case where a singular basis for the earlier acquittal could be deduced from the course of the trial, and questions of inconsistency addressed on that basis.
Mraz takes a narrow view of the principle, in that it seems to have been regarded as necessary for the appellant to exclude all but one possible basis for the acquittal in order to succeed. That, however, is very likely explained by the Court relying on principles of issue estoppel (see at 66) rather than the broader and more flexible concept of abuse of process. Issue estoppel is now regarded as inapplicable to criminal cases (see Carroll at [90], citing Rogers).
In Storey the respondents were alleged to have taken a girl aged sixteen from the waiting shed at a railway station and raped her. They had previously been acquitted on a charge of forcible abduction arising from the same incident. In the rape trial, where their defence was consent, they were convicted. Evidence was led from the victim to the effect that she had accompanied them from the railway station only after being threatened. The convictions were quashed on appeal.
In the High Court Stephen, Mason and Aickin JJ held that the evidence was admissible, even though it tended to show that the respondents were guilty of the offence of which they had been acquitted, but that the trial judge had failed to make it clear to the jury that the acquittal could not be challenged and the evidence must not be treated as proving guilt on the previous charge. Their reasoning appears to rest on notions of res judicata together with the inapplicability (at least generally) of issue estoppel: at 396–397, 400 (Mason J), 391, 424–425 (Stephen J, Aickin J agreeing). The other member of the majority was Jacobs J, who held that the evidence was inadmissible on the basis that it went to both elements of the offence of abduction (and was thus irreconcilable with the respondents’ acquittal on that charge): at 409–410. In the discussion leading to these conclusions his Honour observed that “[a]lthough all the elements cannot be accepted as proved in the later trial individual elements less than the whole can be” (at 409), citing R v Ollis [1900] 2 QB 758. Barwick CJ, Gibbs and Murphy JJ dissented.
In its result Storey is consistent with Garrett (which was decided the previous year), but the reasoning in the two cases is difficult to reconcile. Barwick CJ, who dissented in Storey, said that the cases were different because in Garrett it had been possible to confine the evidence without depriving it of utility for the Crown (at 369–370), which seems to us (with respect) unpersuasive. Gibbs J, who also dissented, distinguished Garrett on the basis that there the impugned evidence was relevant only if it showed that the accused had committed the earlier offence (whereas in Storey the evidence was relevant to showing the appellants’ intention) (at 389), which also seems unpersuasive. Mason J regarded Garrett as establishing that “the principle of res judicata as applied in criminal proceedings will prevent the Crown from challenging the effect of a previous acquittal” (at 396), but did not explain why the statement of principle in that case (which his Honour quoted) did not demand the exclusion of the evidence in Storey. Aickin J regarded Garrett as resting on the principle that “an accused is not to be deprived of the full benefit of his acquittal” (at 423), but also did not explain why that principle did not call for the evidence in Storey to be excluded. The explanation for these statements may be that Storey was presented as a case of issue estoppel (which all of the Justices held was inapplicable, or usually inapplicable, in criminal cases) rather than drawing directly on principles relating to the incontrovertibility of verdicts.
In Rogers, as in Carroll and the later cases, the decisional framework was articulated in terms of abuse of process. In 1989 the appellant stood trial in the District Court of NSW on four counts of armed robbery. The Crown sought to rely on several records of interview allegedly containing admissions, but the tender of three of them was rejected on the ground that they were not made voluntarily. He was acquitted on two counts and convicted on the other two. In 1992 the appellant was indicted on a further eight counts of armed robbery. The Crown proposed to rely on confessional evidence in two of the records of interview that had been rejected in the earlier trial. The appellant sought a stay of the proceedings. That application was refused but succeeded on appeal. On a further appeal to the High Court, the Court declared the course proposed by the prosecution to be an abuse of process.
The reasoning of the majority (Mason CJ, Deane and Gaudron JJ) deals compendiously with the two records of interview proposed to be tendered in the second proceeding, even though (on the facts as summarised by McHugh J) one had been relevant only on a count in respect of which the appellant was acquitted and the other had not been tendered at all. That suggests that the majority Justices did not see it as necessary to demonstrate direct or inevitable inconsistency between acceptance of the evidence and the correctness of an earlier verdict or ruling. Deane and Gaudron JJ said at 280:
Strictly, the 1989 ruling on voluntariness was concerned only with those parts of the records of interview relevant to the offences for which the appellant then stood trial. However and as already indicated, the statements which the prosecution wishes to tender in the appellant's forthcoming trial are, so far as voluntariness is concerned, exactly the same as those tendered in the 1989 proceedings. In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites “the scandal of conflicting decisions”. And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is no claim of “fresh evidence” or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness.
(citations omitted)
Mason CJ agreed with that reasoning (at 255). He added at 256, after a short review of the authorities on abuse of process, that the tender of the confessions was:
vexatious, oppressive and unfair to the appellant in that it exposed him to re-litigation of the issue of the voluntariness of the confessional statements in the records of interview. That issue had already been conclusively decided in the appellant’s favour because the confessions sought to be tendered – although relating to different crimes – were made at exactly the same time and in the same circumstances as the confessions that were the subject of the voir dire.
Rogers was treated in Carroll as resting on the proposition that admitting the records of interview into evidence would impermissibly call into question the ruling of the trial judge rejecting them in the earlier proceeding: at [46], [91]. That change of focus from the verdict to an anterior ruling appears to be the sense in which Gleeson CJ and Hayne J regarded Rogers as potentially standing for “some wider proposition”, the status of which they left for another day (at [47]).
Since Carroll, the Court has considered these issues in Island Maritime Ltd v Filipowski [2006] HCA 30, 226 CLR 328 (Island Maritime). The appellants had been charged with contraventions of anti-pollution legislation in connection with an oil spill. They were acquitted following the success of a submission that the provisions under which they had been charged did not apply to the spill. They were then charged with different offences in relation to the same spill. Their pleas of autrefois acquit and their argument that the later charges were an abuse of process failed, essentially because there had been no trial on the facts in the earlier (fatally flawed) proceeding. Describing the basal concept of double jeopardy, Gummow and Hayne JJ referred at [41] to “the rule that evidence is inadmissible where, if accepted, it would overturn or tend to overturn an acquittal”, citing Garrett and Rogers. That strengthens our view that the principle as stated in Garrett has not been doubted in the High Court and should be followed at intermediate appellate level. Their Honours went on (at [43]–[50]) to identify the difference between the relatively narrow focus of issue estoppel and the various doctrines now conceived as based on the concept of double jeopardy—analysis which helps to explain the difference between the reasoning in Mraz and Storey on the one hand and Garrett, Rogers and Carroll on the other.
Recent appellate decisions in New South Wales
Nash has been referred to above. The actual decision in that case is of limited relevance here because the earlier acquittal of the appellant (for driving under the influence of alcohol) occurred after a hearing before a Magistrate, who gave reasons. The appellant relied on CCTV footage from a golf club purporting to show him purchasing drinks on only three occasions during a visit to the club. He was later charged with perjury and tampering with evidence after it emerged that the footage had been doctored, and the original material showed him purchasing seven schooners of full-strength beer. Those charges were held not to impeach the earlier acquittal on the basis of a consideration of the elements of the offence (which turned on whether the appellant was affected by alcohol rather than simply how much he had ingested) and the matters taken into account by the Magistrate: at [19]–[20], [32] (Macfarlan JA), [40] (Harrison J), [43] (Hamill J).
In Koloamatangi (also mentioned above), the appellants had previously been convicted of murder along with two others (H and B). Part of the Crown case was that H had supplied the gun that Mr Koloamatangi used to shoot the victim. The convictions were quashed on appeal, and verdicts of not guilty entered for H and B. The appellants were re-tried and it was again alleged that H had supplied the gun. Bathurst CJ held that evidence to that effect would be precluded in any subsequent prosecution of H himself (being contrary to the express basis on which he had obtained his acquittal on appeal: at [307]–[311]) but the principle did not extend to a proceeding not involving H (at [295] –[299], [312]). The other members of the Court agreed. That reasoning is not applicable here.
Between Nash and Koloamatangi, the NSW Court of Criminal Appeal decided Abdallah v R [2019] NSWCCA 294 (Abdallah). The Court comprised Bathurst CJ (who later wrote the leading judgment in Koloamatangi) and Macfarlan JA and Hamill J (who had both sat in Nash).
The appellant in Abdallah stood trial before a jury in 2015 for the murder of her cousin. She was acquitted of murder but convicted of manslaughter. The conviction was quashed on appeal and a new trial ordered. She stood trial again for manslaughter before a jury in 2017 and was convicted. She appealed from that conviction, on the basis that the Crown’s case in the second trial controverted her earlier acquittal on the charge of murder. By reference to what was known about the course of the first trial (which appeared only from the judgments on the first appeal), it appeared that there were two possible routes by which the jury could have arrived at its verdicts of not guilty of murder but guilty of manslaughter. Either:
(a)the jury was not satisfied that the appellant formed an intention to kill or inflict grievous bodily harm (abbreviated as a “murderous intent”)—in which case the conviction for manslaughter had to be on the basis of an unlawful and dangerous act; or
(b)the jury was satisfied as to the existence of a murderous intent, but was not satisfied that self-defence had been excluded—in which case the conviction for manslaughter had to be on the basis sometimes described as excessive self-defence. (See at [48]–[49], [102]–[106].)
In the second trial the Crown opened the case as one of manslaughter by unlawful and dangerous act (see at [50]), which was consistent only with the first possible basis for the acquittal. However, submissions made in closing (see at [52]) seemed to invite the jury to conclude that the appellant formed a murderous intent (which would be inconsistent with that possible basis).
Macfarlan JA held that it could not be concluded that the case of manslaughter advanced in the second trial (and the verdict apparently accepting it) was inconsistent with the acquittal of murder in the earlier trial because there were two routes by which that verdict might have been reached: at [66]–[69]. The inscrutability of the earlier verdict could not be overcome by speculating as to what was the basis for the acquittal.
Hamill J agreed that it was not for the judge in a subsequent trial (or the court in an appeal following that trial) to try to determine the basis for the verdict in an earlier trial where there were multiple issues and the case was put on alternative bases: at [110]. However, his Honour otherwise disagreed with Macfarlan JA. The Crown had not avoided suggesting the formation of a murderous intent on the part of the appellant, and the jury had not been firmly directed not to consider it. Issues were thus left to the jury that had the potential to contradict both of the possible bases upon which the earlier acquittal could have rested (ie, absence of murderous intent or excessive self-defence): at [141]. Even if it was open to the Crown to prove facts contrary to one of the possible explanations for the earlier acquittal, it was not open to it to prove facts contrary to both: at [142].
Coming to the point of principle, at [143]–[144] Hamill J reasoned as follows.
It follows that I am unable to agree with the conclusion of Macfarlan JA at [63] that the cases to which his Honour refers establish that “the principle of incontrovertibility will not be infringed unless the person relying upon it can demonstrate that the issue in question has in fact been determined earlier.” I do not accept that the applicant is attempting to “side-step” the opacity or inscrutability of the first jury’s verdict of acquittal. Rather, she is attempting to ensure that her acquittal is “recognized fully and without qualification for all purposes in criminal proceedings”.
The question that divides Macfarlan JA and me concerns a fundamental issue about the application of the principles described variously in the authorities as res judicata, incontrovertibility, double jeopardy and, in earlier cases, issue estoppel. The question arises in such unusual circumstances that Senior Counsel for the applicant described the case as an “outlier”. The issue concerns the operation of the relevant principles in cases where an earlier acquittal is explicable on more than one basis. The conclusion reached by Macfarlan JA is that the later verdict does not controvert the earlier one if the basis of the verdict cannot be determined conclusively. I prefer to approach the matter on the basis that the prosecution at a subsequent trial cannot put a case that may controvert or contradict the earlier acquittal. Neither party drew the Court’s attention to any past authority where this specific issue was considered or decided. However, my conclusion is consistent with the observations of Jacobs J in Storey including where his Honour said at 409:
Although all the elements cannot be accepted as proved in the later trial individual elements less than the whole can be: Reg v. Ollis. But what if an examination of the transcript of the earlier trial discloses that only one element of the offence was put in issue so that it can be concluded that the jury determined that issue in favour of the defendant? Can that finding be traversed by the prosecution in a later trial? I do not think that any short definitive answer can be given to that question. A negative answer does not follow from the decision in Kemp v. The King or Mraz v The Queen (No. 2). They are explicable on other grounds as I have indicated earlier. But one thing is to me clear. The fact that only one issue or element of the offence was submitted to the jury at the first trial must be clearly established. It was not so established in the present case. It may be that the issue of taking away by force from the railway station was more strongly contested than the issue of intent to carnally know but it cannot be said that both elements of the offence were not left to the jury.
In the present case the prosecution adduced evidence on both elements of abduction despite the earlier acquittal of the respondents of that offence. In my opinion this was not permissible.”
(citations omitted)
Bathurst CJ joined with Hamill J in allowing the appeal against conviction, which Macfarlan JA would have dismissed. Having reviewed the High Court authorities, at [30]–[34] his Honour extracted five propositions which were as follows:
First, the principle [about incontrovertibility] can apply in at least three sets of circumstances; the first being a challenge to the indictment as an abuse of process, the second in considering the admissibility of evidence and the third in circumstances where evidence is properly admitted on the question of whether the jury should be directed as to the acquittal of the accused on a previous charge.
Second, the principle is now based on the fact that to controvert a final acquittal is an abuse of process by reference particularly to the need for finality of litigation, the consequential need for an acquittal to be incontrovertible and the need for individuals to be protected from repeated attempts to secure convictions.
Third, irrespective of whether the principle extends to render evidence which would only tend to contravene an acquittal inadmissible, the courts have declined to determine the limits of the doctrine.
Fourth, whatever its limits as Mason J pointed out in Storey at 396, an acquittal must be fully recognised and without qualification in all criminal proceedings.
Fifth, there is no general proposition that the doctrine can have no application where there is more than one route by which a jury could reach its verdict and the Court cannot discover which of these routes was taken. In these circumstances, the incontrovertibility of the verdict must still be respected, at least to the extent that it is possible to do so.
The double negative in Bathurst CJ’s last proposition needs to be read with care. His Honour, we assume deliberately, did not say that there is a general proposition that the doctrine does apply where there is more than one route by which the earlier verdict might have been reached. In the context of the particular facts (which the Chief Justice analysed similarly to Hamill J (at [35]–[38])), it was not necessary to go that far. That is because the Crown case in the second trial ended up contradicting both of the possible bases for the earlier verdict. The position of Macfarlan JA could be correct only if the existence of those two possible bases was sufficient in itself to mean that the doctrine had no application. Bathurst CJ and Hamill J clearly (and in our view correctly) rejected that position. However, that does not advance matters for the purposes of the present case. In the present case, a conviction on the property damage charge could be reconciled with the acquittal on the aggravated burglary charge if that acquittal was taken to be based on one, rather than the other, of the possible bases. It remains necessary to consider whether a prosecution in which the Crown case contradicts one (but not both) of the bases on which an earlier acquittal may have rested constitutes an abuse of process.
Properly analysed, therefore, the New South Wales cases do not decide the issue that arises in the present case. We respectfully disagree with the obiter dicta in Nash concerning the authority of Garrett. Our understanding of the principles must therefore be based on our analysis of that case and the other High Court authorities set out above.
The relevant principle distilled and applied
Our review of the cases leads us to conclude that the guiding principle for determining whether a prosecution constitutes an abuse of process, in circumstances such as the present, is found in the statement in Garrett set out above: “the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict” (emphasis added). That statement was directed to the admission of evidence but, as we have noted above, reflects an underlying principle that also applies to other steps in a proceeding including the commencement or maintenance of the proceeding itself.
Part of the justification for the rule that decisions of courts are to be treated as incontrovertibly correct is protection against what has been called “the scandal of conflicting decisions” (eg Rogers at 273, 280 (Deane and Gaudron JJ), 290 (McHugh J)). The term “scandal” evokes circumstances undermining confidence in the administration of justice. Scandal in that sense clearly arises if a prosecution is allowed to continue where there is manifest inconsistency (as seen, for example, in Carroll) between the Crown case and what must have been the basis for an earlier acquittal of the accused. It also arises where, because a single basis for the acquittal cannot be deduced, the Crown case in the later prosecution casts doubt on the correctness of what the jury did.
Doctrines based on the concept of double jeopardy are bound to operate differently as between an acquittal entered by a judge or magistrate sitting alone and one rendered by a jury on an indictable offence, because the former is explained by reasons while the latter is “inscrutable” (cf, eg, Island Maritime at [45]–[46], [54] (Gummow and Hayne JJ)). The inscrutable jury verdict will have a very limited preclusive effect, or none, on later prosecutions if “necessary inconsistency” is required; it will have a wider preclusive effect than the verdict of a judge alone if inconsistency occurs whenever re-litigation of elements of the offence in a later case would “tend to overturn” the verdict. The central role of juries as a means by which members of the community bring their experience and wisdom to the administration of criminal justice, and the relative seriousness of offences with which juries commonly deal, leads us to conclude that the protection of their verdicts against being called into question should be wider rather than narrower. The principle enunciated in Garrett is consistent with that conclusion. So too is the discussion in AJS v The Queen [2007] HCA 27; 235 CLR 505 at [24], where Gleeson CJ, Hayne, Heydon and Crennan JJ said of the difference between a jury verdict and a decision accompanied by reasons:
When an accused person has been acquitted of a charge by verdict of a jury, it will not be possible to know why the jury reached its verdict. In those circumstances, the reference to the person having the "full benefit" of an acquittal may reflect the opacity of that verdict. But it is important to recognise that the references made to the "full benefit" of an acquittal are no more than a particular restatement of a more fundamental principle. That principle is that the verdict, as recorded in the court's record, is not to be controverted. And where, as here, the reasons for quashing the conviction are known, the reasons for directing entry of judgment and verdict of acquittal are known. There would be a controverting of that record only if the jury were to be left in a position where in the course of considering whether the appellant had committed an indecent act they might consider whether there had been, or may have been, an act of digital penetration of the complainant.
For these reasons, the primary Judge erred in principle in regarding the critical issue as whether there was any “necessary inconsistency” between a verdict of guilty on the property damage charge and the earlier acquittal. That states the principle too narrowly. A verdict of guilty on the property damage charge was inconsistent with a finding upon which it was clearly possible that the jury’s verdict had been based, namely that Mr Booth was not in the vicinity of the door when entry to the dwelling was effected. The prosecution on that charge therefore called the verdict into question, or had a tendency to overturn it, in the sense mentioned in Garrett.
The proceeding should have been permanently stayed as an abuse of process. Consequently, the conviction must be quashed. However, rather than entering a verdict of not guilty on the property damage charge (as sought in the notice of appeal), we propose to order that the proceeding be permanently stayed, as this is what should have occurred below.
The conviction
In the light of our conclusion on the stay issue, it is unnecessary and arguably undesirable to consider the second limb of the appeal for reasons outlined at [7] above. We prefer to express no opinion about the verdict in circumstances where we have concluded that the proceeding should have been stayed.
Orders
We would therefore allow the appeal on the basis of the first contention advanced by Mr Booth. The orders we propose are:
(1)The appeal is allowed.
(2)The conviction entered on 1 October 2021 is quashed.
(3)Proceedings on charge CC2019/1404 are permanently stayed.
Elkaim J:
Introduction
I have had the benefit of reading, in draft, the judgment of McCallum CJ and Kennett J. I completely agree with their Honours, including the final orders. In addition I think there is a different path to the same result which I would express as follows.
This appeal concerns two decisions of the primary judge; R v Booth [2021] ACTSC 226 and R v Booth (No 2) [2021] ACTSC 255. The former will be referred to as the ‘stay’ judgment and the latter as the ‘conviction’ judgment.
Although there are two separate judgements they raise, in combination, the fundamental question of the appeal, which was stated in this way by the appellant:
[C]an an accused who has been acquitted of an indictable offence subsequently be convicted of a summary offence the alleged commission of which was a constituent part of the indictable offence? (Written submissions at [2]).
The appellant and four other persons were alleged, by indictment, to have acted jointly to commit a single offence of aggravated burglary. The appellant was also charged with a summary offence of property damage, said to have arisen from the same incident as the burglary.
The four accused came to trial before the primary judge and a jury on 21 June 2022. On 2 July 2021 the jury found all but one of the five accused persons to be Not Guilty. The one person found guilty was Ms Melanie Booth (Ms Booth).
The appellant submits that the trial having been run by the Crown as one alleging a joint enterprise between the accused, it follows that by finding only one person guilty, the jury could not have been satisfied that the offence committed by Ms Booth had been carried out jointly with any one or more of the other accused persons.
Following his acquittal, the appellant made an application for a stay of the summary offence. The application was refused on 1 October 2021 (the stay judgment).
The stay having been refused, the primary judge went on to consider, on 1 October 2021, whether or not the property damage charge had been established. No further evidence was called by the Crown or the appellant, (other than some proof of the value of the property). His Honour relied upon the evidence that had been given at the trial before the jury. His Honour found the offence proved (the conviction judgment).
The appellant says that the stay should have been granted. Alternatively, after refusing to grant the stay, the primary judge should not have found the offence proved. He says such a verdict was unreasonable.
The stay judgment
The primary judge began, at [2], by referring to the nature of the proceedings concerning the property damage:
There is a transfer charge of minor property damage contrary to s 116(3) of the Crimes Act 1900 (ACT) arising out of substantially the same circumstances as the aggravated burglary incident. It is therefore a related offence which can be dealt with by this court without a jury: see ss 68CA and 68E(1) of the Supreme Court Act 1933 (ACT).
His Honour then said that the pursuit of the property damage claim was asserted to be an abuse of process which could only be cured by a permanent stay of the charge.
The primary judge acknowledged that the allegation concerning the aggravated burglary was that it had been committed by joint commission, the appellant being one of the group said to have been acting jointly. He went on, at [6]:
The six accused were alleged to be guilty of the offence by joint commission pursuant to s 45A of the Criminal Code 2002 (ACT). The charge was also put in relation to two of the accused on the basis that they were individually responsible for the commission of the offence. One of the accused, Melanie Booth, was found guilty. Having regard to the acquittals of her co-accused, the guilty verdict must have been on the basis that she had individually committed the offence (that is, the offence was not by joint commission under s 45A of the Criminal Code).
At [8], referring to TR v Director of Public Prosecutions [2020] NSWSC 255; A Crim R 527, his Honour summarised the general principles behind an application for a stay where there is an alleged abuse of process:
1. The court has a prima facie obligation to exercise its jurisdiction.
2. The court has inherent power to stay proceedings which are an abuse of process.
3. It is only in exceptional cases that a stay of proceedings will be granted.
4. It is clear that the categories of abuse of process which might result in a stay extend beyond the initiation of proceedings for an ulterior and improper purpose.
5. Although the decision to stay proceedings is said to be discretionary, that is because the circumstances in which proceedings will constitute an abuse of process may involve an exercise of categorisation in relation to which minds may differ.
6. Fairness to an accused is not the sole criterion in relation to the granting of a stay of proceedings. It is, however, a significant consideration where vexation or oppression is alleged.
The primary judge then referred to the decision of McHugh J in Rogers v The Queen (1994) 181 CLR 251 (Rogers):
In Rogers v The Queen (1994) 181 CLR 251 at 286-287 McHugh J said that although the categories of abuse of process remain open, they usually fall into one of three categories:
(1) the court’s procedures are invoked for an illegitimate purpose;
(2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or
(3) the use of the court’s procedures would bring the administration of justice into disrepute.
His Honour acknowledged that McHugh J was in the dissent in Rogers, but his description of the categories had been approved later in the High Court (Moti v The Queen [2011] HCA 50; 245 CLR 456 at [10]).
His Honour then set out the respective elements of aggravated burglary by joint commission and recklessly causing minor property damage. His Honour then continued, from [17]:
17.The jury’s verdict is clearly consistent with it being not satisfied beyond reasonable doubt that the agreement required to establish the charge against the applicant had been 5 entered into. In particular, the jury’s verdict is consistent with an absence of one or more of the required components of such an agreement namely:
1. the absence of an agreement to enter or remain in a building;
2. the absence of an agreement to commit an offence that involved causing harm or threatening to cause harm to any person the building;
3. the absence of an intention to enter the building in company.
18. In the circumstances of this case, it is most likely that it was the second component of the agreement of which the jury was not satisfied. However, it is not necessary to reach any conclusion on that issue. It is certainly not the case that as a matter of law the verdict of the jury necessarily involves a conclusion that the applicant was not at the door or that the applicant was not seeking to gain access to the residence. Further, it is unlikely that the jury reached its verdict on that basis and the maintenance of the damage property charge is neither inconsistent with nor has a tendency to undermine the acquittal on the aggravated burglary charge.
His Honour then posed the question of whether, if both charges had been before the jury, there would have been “a necessary inconsistency” between a finding of ‘not guilty’ on the burglary charge and ‘guilty’ on the property damage charge. Because the answer to the question was in the negative, his Honour concluded that it was permissible for the Crown to proceed on the property damage case notwithstanding the acquittal on the burglary charge.
Accordingly, the application for a stay was refused.
The damage to property charge evolved from an allegation that the group committing the burglary had entered the house after the appellant had forced open the front door (thereby causing the property damage). Once the front door was open, the group allegedly entered the house where the burglary occurred.
There was never a suggestion that the damage to the front door was part of any unassociated or independent act of the appellant. It was always an integral part of the aggravated burglary charge. The Crown said in its opening to the jury:
….. During this trial I anticipate that you’ll hear that all the accused got inside the house and there were threats to harm the occupants and some of the accused hit people inside the house.
In his closing address, the Crown said:
So can I suggest that there is no real issue that all of the accused were at (an address). Instead can I suggest that the real issue or the sole issue for you to decide in this trial, is whether or not you’re satisfied that there was an agreement between two or more of the accused or people to enter the building or part of the building as trespasses with the intent to threaten, harm or cause harm to someone inside.
In summarising the evidence to the jury the Crown said that one of the witnesses had given evidence that the appellant “booted the door open and hit has hit her son”. He continued: “She told us that (the appellant) kicked the door open and came around the corner and started screaming at her partner...”.
Mr De Bruin acted for the appellant at the trial. He concentrated on the unreliability of the identification evidence and urged the jury to not “exclude the possibility that (the appellant) remained somewhere in the background and wanted nothing to do with it”.
In his charge to the jury, the trial judge concentrated on the necessary elements of the offence and on the requirements for a finding of joint commission. In respect of the appellant, his Honour gave specific directions about the reliability of identification evidence, in particular as to whether the appellant had been identified by the Crown witnesses as the person “who kicked down the door or was one of the intruders”.
It is very apparent that the Crown case against the appellant centred on him “kicking down the door” as the prelude to, or an inherent part of, the aggravated burglary.
It is of course unknown whether the jury found the appellant not guilty because they did not think he had been a participant in the attack on the house, whether he had been party to any agreement, or perhaps both.
Whatever the case, it is most obvious that the Crown’s allegations against the appellant must have involved him being a participant in the aggravated burglary, and that he played the specific part of forcing the door open, whether by kicking or otherwise.
The conviction judgment in summary
His Honour approached the judgment by first of all dealing with the question of whether the door had been damaged. There was objective evidence from a police officer about damage to the door. There was then an examination of the evidence of the witnesses who had identified the appellant as being the person who had “kicked open” the door.
The primary judge concluded that based on the witnesses who had identified the appellant, that he was satisfied beyond reasonable doubt that the appellant was “present at the door”. His Honour then moved on to whether or not it was the appellant who had damaged the door. Again he referred to the evidence of the assorted Crown witnesses. He concluded:
Although the residents of the house could not see the kicks being delivered, they drew the inference from Richard’s presence at the door that he was the one who damaged the door sufficiently to permit it to swing open. In my view, such an inference can be drawn beyond reasonable doubt. The suggestion that Deanne kicked in the door was not put to her. The evidence does not support that any other of the identified persons was in a position consistent with having damaged the door to a degree sufficient to cause it to fly open. It is more likely that the kicking of the door was done by a male than any of the females present. The possibility that some other unidentified person damaged the door is a possibility that, having regard to the evidence, can be excluded beyond reasonable doubt.
His Honour then stated that he was satisfied beyond reasonable doubt that the appellant had damaged the door and, after making findings on technical aspects of the offence, that therefore the appellant was guilty of the property damage charge.
Should a stay have been granted?
The appellant submitted that the second category referred to by McHugh J in Rogers was applicable here, although was perhaps better styled as an example of double jeopardy. The second category is “the use of the court’s procedures is unjustifiably oppressive to one of the parties”.
I would not classify the issue in this case is being one of double jeopardy. However, I do think that the refusal to grant a stay was “unjustifiably oppressive”. The Crown ran a case before the jury that had at its core, certainly in respect of the appellant, that he had participated in the burglary by agreement with one or more of the other accused and that his participation had involved forcing open (or damaging) the front door.
It is correct to say that theoretically the jury might, for example, have concluded that although the appellant had forced open the door he had not been party to any agreement. This would be speculation, but it would be speculation that arose from a different case to that run by the Crown. This case expressly and implicitly had, as a core feature, the appellant forcing open the door.
The pursuit of the damage charge, in my view, ignores this central feature and exposed the appellant to a trial before the judge relying on precisely the same evidence as that which had been before the jury, and then asking the judge to reach a conclusion which may, if not probably, have been rejected by the jury.
Although, there is an element of double jeopardy in my analysis, I think the better description is that the refusal to grant the stay had not given sufficient weight to fairness to the appellant, in turn allowing the pursuit of the damage charge to be “unjustifiably oppressive”.
The concept of fairness involves not only a consideration that the jury did reject the Crown case that the appellant damaged the door, but also that the jury may have done so. The question of fairness is not absolute. It is enough for an unfairness to arise even if it was no more than a realistic possibility that the jury had rejected the presence of the appellant at the front door.
While I might not describe the refusal to grant a stay as a passage to “the scandal of conflicting decisions”, I would describe it as simply unfair to the appellant to such a significant extent that a stay was required.
Accordingly, I would allow the appeal and order that there be a stay of the damage charge.
Having reached this conclusion I agree with McCallum CJ and Kennett J that it is not necessary, perhaps even not appropriate, to examine whether the verdict was unreasonable.
| I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |
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