Director of Public Prosecutions v McGary
[2023] ACTSC 14
•2 February 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v McGary |
Citation: | [2023] ACTSC 14 |
Hearing Date: | 31 January 2023 |
DecisionDate: | 2 February 2023 |
Before: | Baker J |
Decision: | The Director’s application under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for the appointment of a witness intermediary for [the complainant] is dismissed. The witness, [redacted], give their evidence at the trial by audio-visual link from a place in the Australian Capital Territory (ACT) that is outside the courtroom, namely the Court’s remote witness room, pursuant to s 32(1)(a) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) The witness, [redacted], give their evidence at the trial with a support present, pursuant to s 49(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
Catchwords: | CRIMINAL PROCEDURE – pre-trial application for witness intermediary for complainant – s 4AJ Evidence (Miscellaneous Provisions) Act 1991 (ACT) – communication difficulty – anxiety – stress – depression – PTSD – effects of mental health conditions on communication – function of witness intermediary – application for parent of complainant to give evidence remotely – pre-existing cardiac condition – application for support person for parent of complainant |
Legislation Cited: | Crimes Act 1900 (ACT) Evidence Act 2011 (ACT) Evidence (Miscellaneous Provisions) Act 1991 (ACT) Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) |
Cases Cited: | R v QX (No 2) [2021] ACTSC 244 |
Texts Cited: | Presentation Speech, Evidence (Miscellaneous Provisions) Amendment Bill 2019 (ACT) |
Parties: | The ACT Director of Public Prosecutions (Applicant) Richard Emory McGary (Respondent) |
Representation: | Counsel L Etheredge (Applicant) K Musgrove (Respondent) |
| Solicitors The ACT DPP (Applicant) J Sutton Associates (Respondent) | |
File Number: | SCC 122 of 2022 |
Publication Restriction: | N/A |
BAKER J
Introduction
By applications filed on 9 September 2022 and 27 January 2023, the Director of Public Prosecutions (“the Director”) makes the following three applications:
(1) That an intermediary be appointed for the witness, [redacted] (“the complainant”), pursuant to s 4AJ of the Evidence (Miscellaneous Provisions) Act1991 (ACT) (“EMP Act”) and that a ground rules hearing be held pursuant to s 4AB of that Act;
(2) That the witness, [redacted] (“the complainant’s father”) give evidence by audio-visual link from a place in the Australian Capital Territory that is outside the courtroom pursuant to s 32(1)(a) of the EMP Act; and
(3) That the complainant’s father give evidence with a support person present pursuant to s 49(1) of the EMP Act.
For the reasons outlined below, I have dismissed the first application and granted the second and third applications.
Background
The respondent, Richard Emory McGary, is charged with two counts of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT). He has entered a plea of not guilty to each charge.
The prosecution case statement describes the alleged offences as follows:
The accused and the complainant met on 20 February 2020. They began a romantic relationship shortly afterwards, which ended on 7 May 2020. On 17 April 2020 the accused and complainant were having a picnic together near the Cotter Campground, Stromlo. They were lying naked in the back of the complainant’s car kissing. The accused then bound the complainant’s hands with a brown leather belt. The accused digitally penetrated the complainant’s anus and she said, ‘wait, I’m scared’ and ‘no it hurts’. The accused continued digitally penetrating the complainant for a few seconds to a minute (Count 1). The complainant then said ‘no, no’ and the accused penetrated the complainant’s anus with his penis. He was not wearing a condom and continued until ejaculation (Count 2).
The complainant continued her relationship with the respondent after the alleged sexual assaults. In her interview with police, she explained that she felt that this was a matter of “self-preservation”, and that she “did not feel safe in or out of the relationship”.
The complainant attended the Ochre Medical Centre in June 2020, complaining of stress arising from domestic violence. She attended further medical consultations in September 2020 and November 2020. In the latter consultation, the complainant disclosed that she had been sexually assaulted. The complainant made a complaint to police in September 2020 about the sexual assaults, but indicated that she did not want to make a formal statement to police at that time. The complainant was formally interviewed by police in relation to the allegations on 21 December 2020.
Application for a witness intermediary for the complainant
Evidentiary objection
In support of the application for a witness intermediary to be appointed for the complainant, the prosecutor read an affidavit of Julia McLean, sworn on 9 September 2022. This affidavit annexed a copy of the prosecution case statement, medical records from the Ochre Medical Centre (“the medical records”), and records of the ACT Ambulance Service (“the ambulance records”).
Ms Musgrove, who appeared on behalf of the respondent on the application, objected to the admission of the records from the Ochre Medical Centre on the basis that those records constituted a “protected confidence” within the meaning of s 79A of the EMP Act.
Ms Musgrove accepted that the medical records could be admitted if the prosecutor made a written application under s 79E of the EMP Act and the Court grants leave to disclose the records under s 79D of that Act. However, Ms Musgrove submitted that the Court should not grant leave under s 79D because, even if leave were granted, the documents would not provide a sufficient basis for a witness intermediary to be appointed.
As the ultimate basis of the objection related to the merits of the substantive application, Ms Musgrove indicated that she had no objection to the provisional admission of the medical records under s 56 of the Evidence Act 2011 (ACT). It is convenient to now turn to that application.
Relevant legislation
Chapter 1B of the EMP Act contains various provisions relating to the appointment and functions of witness intermediaries.
The Court must appoint a witness intermediary for a prescribed witness, namely a child complainant in sexual proceedings or a child witness in a serious violent offence involving the death of a person: s 4AK of the EMP Act and reg 4 of the Evidence (Miscellaneous Provisions) Regulation2009 (ACT).
Section 4AJ of the EMP Act provides for the appointment of witness intermediaries for witnesses who are not prescribed witnesses. Section 4AJ states:
4AJ Appointment of witness intermediary—generally
(1) A court may appoint an intermediary in a criminal proceeding for a witness with a communication difficulty—
(a) on its own initiative; or
(b) on the application of—
(i) the DPP; or
(ii) the witness; or
(iii) the accused person.
Example—communication difficulty
a mental or physical disability that impedes speech
(2) A court must not appoint an intermediary for a witness under this section if satisfied that the witness—
(a) is aware of their right to make an application for an intermediary to be appointed; and
(b) is able to, and wishes to, give evidence without the assistance of an intermediary.
(3) In making a decision under this section, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
The phrase “communication difficulty” is not defined in the EMP Act. However, as extracted above, s 4AJ provides an “example” of a communication difficulty as being a “mental or physical disability that impedes speech.”
The phrase “communication difficulty” should be broadly construed in accordance with its beneficial purpose. Accordingly, it is of “wide import”: R v QX (No 2) [2021] ACTSC 244 at [72], per Loukas-Karlsson J. The phrase is not limited to witnesses who have a formal diagnosis or a difficulty of a particular severity: R v QX (No 2) at [77]. A tendency to disassociate when communicating about alleged offence will amount to a “communication difficulty” within the meaning of the provision, as will difficulties discussing a particular subject due to distress and/or anxiety: R v QX (No 2) at [72].
Submissions
The prosecutor accepted that the Court must be satisfied that the witness has a “communication difficulty” before making an order for a witness intermediary for a witness who is not a prescribed witness.
The prosecutor submitted that the medical records (over which an objection was made) establish that the complainant suffers from stress, anxiety, panic attacks, fear and some elements of depression. The prosecutor also noted that the ambulance records (over which no objection was made) indicate that in July 2021, the complainant experienced an acute exacerbation of her mental health crisis. Those records also record that the complainant had a pre-existing condition of Post-Traumatic Stress Disorder (PTSD). The prosecutor further submitted that:
… the complainant’s ‘communication difficulty’ is characterised by difficulties arising when discussing the incident and re-living her trauma of the allegations due to her distress and/or anxiety.
The prosecutor acknowledged that none of the medical records or the ambulance records indicate that these conditions affect the complainant’s ability to speak about the alleged sexual assaults. However, he noted that s 4AJ(3) of the EMP Act provides that the Court “is not bound by the rules of evidence and may inform itself as it considers appropriate.” He submitted that in circumstances where the ambulance records describe the complainant as becoming “very distressed” following “a traumatic day in relation to the allegations”, the Court could reasonably infer that the complainant would have a difficulty in communicating when giving evidence and being asked questions about the allegations.
In response, Ms Musgrove submitted that “even if the Court does find the complainant suffered stress and anxiety and in 2020 and 2021, there is no evidence that she continues to do so”. Ms Musgrove further submitted that “even if the complainant suffered or suffers stress and anxiety, the evidence does not establish any such stress or anxiety had, or indeed has, any impact on her ability to communicate”.
Ms Musgrove also noted that the complainant has a degree in law, is a PhD student in commerce and has lectured at an Australian university. She submitted that this was “another factor that points to her not having a communication difficulty”.
Determination
I am satisfied that, if admitted, the medical records will, together with the ambulance records, establish that the complainant suffers from anxiety, stress, PTSD and elements of depression.
I do not accept the respondent’s submission that there is no evidence that these conditions are continuing. Anxiety and PTSD are conditions which are frequently situational in nature. It is common for those conditions to flare up under periods of stress. There is no suggestion in the medical records that those conditions have resolved. Even if the complainant has not suffered a mental health episode since the occasion when the ambulance service was called in 2021, it is entirely reasonable to infer that the stress of giving evidence in court about allegations of sexual assault will exacerbate the complainant’s symptoms of anxiety, PTSD and distress.
I accept the prosecution’s submission that anxiety, stress and PTSD are conditions that may affect a complainant’s ability to communicate. R v QX (No 2) is a paradigm example of such a case. In that case, there was medical evidence that the complainant had a tendency to “disassociate” when communicating about the allegations. However, I am not prepared to infer that anxiety, depression, stress or PTSD will necessarily have an effect on a witness’ ability to communicate. It is necessary to consider the circumstances of the particular witness.
I have carefully considered the fact that that in the complainant’s interview with police, she describes having a form of ‘freeze response’ during the alleged sexual assault. In particular, the complainant states that her body went “numb” and that she felt like she was having an “out of body” experience. It would not be unusual for a such a complainant to have difficulties describing the sexual assault allegations whilst under the stress of giving evidence in court. I do not consider that the complainant’s postgraduate qualifications detract from this possibility. A tertiary educated person is no less susceptible to the incapacitating effects of anxiety, depression and stress, including PTSD.
However, when interviewed by police, the complainant had no difficulty understanding the questions asked, and in response to those questions, she described the allegations and the circumstances leading up to the allegations in detail. Although the complainant was understandably stressed at the time that she participated in the interview, there is no suggestion that her stress affected her ability to communicate. Indeed, at the conclusion of the interview, the complainant said that she had found the process of giving her account to be “cathartic”.
Ultimately, the difficulty in the present case is that while there is ample evidence that the complainant suffers from anxiety, stress, PTSD and depression, there is no direct evidence that the complainant’s conditions have ever previously had an effect on her ability to give a thorough account of the allegations or that those conditions will affect her ability to communicate at trial.
Unlike R v QX (No 2), there is no evidence from the complainant’s treating doctor as to the effect of the complainant’s condition on her ability to communicate or give evidence in court. Nor is there any evidence from the complainant herself as to how these conditions affect her ability to communicate when under stress. The affidavit of Ms McLean simply states that a solicitor within the Office of the Director has discussed the intermediary program with the complainant; that the complainant is “aware of the right to make an application for a witness intermediary”; and that she has “expressed that she wishes to give her evidence with the assistance of an intermediary”.
The functions of a witness intermediary are set out in s 4AI of the EMP Act. These include preparing and providing reports about a witness’ communication needs; communicating to the witness questions put to the witness “to the extent necessary for the witness to understand the questions”; communicating the witness’ answers to the examiner “to the extent necessary for the [examiner] to understand the answers”; and otherwise assisting the Court and the lawyers appearing in the proceeding in communicating with the witness. Whilst an important consequence of understanding and being understood in court will be to reduce a witness’ stress and anxiety, the purpose of a witness intermediary is not directed at the reduction of stress and anxiety in and of itself. A witness intermediary’s function is to facilitate communication with the witness. A witness intermediary is not a support person.
It is a precondition to the appointment of a witness intermediary under s 4AJ of the EMP Act that the witness be a person “with a communication difficulty”. In my view, that threshold requirement is not met where there is no evidence that a witness has any difficulties in communication, but only a general possibility that such difficulties may arise.
In these circumstances, it is not necessary for me to decide whether the complainant’s medical records fall within s 79A of the EMP Act. Even if those records were admitted, they do not indicate that the complainant has communication difficulties arising from her medical conditions.
Accordingly, I dismiss the Director’s application under s 4AJ of the EMP Act for the appointment of a witness intermediary.
This dismissal does not preclude the Director from making a further application for a witness intermediary for the complainant on the basis of additional evidence, for example evidence from a treating doctor (as in R v QX (No 2)) or from the complainant herself as to the effect (if any) of the complainant’s conditions on her ability to communicate when under stress.
Application for the complainant’s father to give evidence in a remote room
Relevant legislation
Section 32 of the EMP Act provides as follows:
32 Territory courts may take evidence and submissions from another place(1) Subject to any Act or rules of court, a territory court may, on the application of a party to a proceeding before it or on its own initiative, direct that a person, whether or not a party to the proceeding, appear before, or give evidence or make a submission to, the court by audiovisual link or audio link from—
(a) a place in the ACT that is outside the courtroom or other place where the court is sitting; or
(b) a place outside the ACT but within Australia; or
Note If the place is a participating jurisdiction, a territory court may make a direction (on application or on its own initiative) under pt 3.2 (Use of audiovisual links or audio links with participating States in ACT proceedings).
(c) a place outside Australia (other than New Zealand).
Note: The Trans-Tasman Proceedings Act 2010 (Cwlth), pt 6, div 2 (Remote appearances from New Zealand in Australian proceedings) and the Court Procedures Rules 2006, div 6.10A.4 (Trans-Tasman proceedings—remote appearances) apply to remote appearances from New Zealand in an ACT proceeding.
(2) The court may make the direction only if satisfied that—
(a) the necessary facilities are available or can reasonably be made available; and
(b) it is in the interests of the administration of justice to make the direction.
(3) In considering whether it is in the interests of the administration of justice to make the direction, the court may consider—
(a) whether the evidence or submission can more conveniently be given or made from the place; and
(b) whether the making of the direction is unfair to any party opposing the making of the direction; and
(c) whether the making of the direction could support court efficiency by reducing costs or delay to the proceeding; and
(d) anything else that the court considers appropriate.
(4) The court may at any time amend or revoke a direction made under this part, either on the application of a party to the proceeding or its own initiative.
Evidence
The prosecutor read an affidavit of Julia McLean dated 27 January 2023 in support of the Director’s application for the complainant’s father to give evidence via an audio-visual link in a remote witness room. That affidavit recorded that the complainant’s father has been diagnosed with Atypical Hypertrophic Cardiomyopathy and annexed a letter from the complainant’s father’s general practitioner concerning the condition. The letter from the general practitioner explained that the cardiac condition has been “responsible for the development of several cardiac arrythmias”. The letter stated that the condition is life threatening and required the insertion of an intra-cardiac defibrillator in 2018.
The prosecutor also tendered the complainant’s father’s statement of evidence in the proceedings. Ms Musgrove did not object to the aspects of the statement which set out the nature of the evidence proposed to be given by the complainant’s father. In brief, that evidence relates to the complainant’s father’s observations that his daughter was “quieter than usual” in the immediate aftermath of the alleged assault, and that over the ensuing weeks, the complainant’s behaviours had changed, in that she seemed “less willing to go out”, was unable to sit for long periods, lost a considerable amount of weight and “appeared to be in pain”.
However, Ms Musgrove objected to paragraphs [14] to [23] of the complainant’s father’s statement on the basis that those paragraphs were irrelevant, and contained unfairly prejudicial material. The prosecutor did not press paragraphs [14] to [20], but did press paragraphs [21] to [23]. In those paragraphs, the complainant’s father explained that, on hearing about the allegations, he “felt devastated”, and that he would not recount to the police what he had been told by the complainant’s mother about the sexual assault because he found it “too distressing” to do so.
I accept that these aspects of the statement are relevant to the application before me. The complainant’s father describes his feelings of devastation and distress in response to the allegations relating to his daughter. This is relevant to my assessment of the effect that giving evidence will have upon the complainant’s father’s health, and, in particular, his cardiac condition. Whilst those aspects of the statement would be unfairly prejudicial (and irrelevant) at the trial, I do not accept that there is any unfair prejudice in their admission in the proceedings before me for the purpose of determining the prosecution’s application for a witness to give evidence via audio-visual link. Accordingly, I admit paragraphs [21] to [23] of the complainant’s father’s statement.
In response, the respondent tendered a printout of a webpage from the Australian Cardiac Genetic Testing Network titled “Hypertrophic Cardiomyopathy (HCM)”. The material provided an outline of information in relation to Hypertrophic Cardiomyopathy, including how the condition is inherited, genetic testing available, common treatments and exercise which may exacerbate the condition.
Submissions
The prosecutor submitted that it is in the interests of justice that an order be made that the complainant’s father give evidence from a remote witness room via audio-visual link. In particular, the prosecutor submitted that giving evidence in a remote witness room would reduce the risk of exacerbating the witness’ health condition during the witness’ evidence, which may otherwise lead to delays in the proceedings.
The prosecutor noted that as the witness’ evidence is relatively narrow and uncontroversial, no unfairness would arise from, for example, the defence not being able to cross-examine that witness in a court room or from that witness not being present in the court room. The prosecutor also noted that the complainant would also give evidence from a remote witness room, and that the jury will be directed not to draw an adverse inference from the complainant or any other witness’ appearances via audio-visual link.
The respondent contended that it would not be in the interests of justice for the complainant’s father to give evidence via audio visual link from a remote room. In particular, Ms Musgrove submitted that the evidence to be given by the complainant’s father is “scant” and not directly relevant to the facts in issue at trial, and there was no evidence to suggest that giving evidence remotely would alleviate stress or be less onerous for the complainant’s father.
Ms Musgrove further submitted that allowing the complainant’s father to give evidence remotely would be prejudicial and unfair to the respondent because of adverse inferences a jury may draw, despite directions given by a judge to not do so.
Determination
An order that the complainant’s father give evidence via audio-visual link can only be made under s 32 of the EMP Act if the Court is satisfied that:
(a) the necessary facilities are available or can reasonably be made available; and
(b) it is in the interests of the administration of justice to make the direction.
I am satisfied that the necessary facilities are available or can reasonably be made available. The complainant will be giving evidence from a remote room. That room may then be made available when the complainant’s father gives evidence.
I am also satisfied that it is in the interests of the administration of justice for the direction to be made. The complainant’s father suffers from a cardiac condition. His treating doctor is concerned that ongoing stress resulting from the impending court proceedings will have a serious detrimental effect on his cardiac condition.
Although it seems likely that the complainant’s father’s evidence will be short in compass, it is understandable that the complainant’s father will be distressed about the prospect of giving evidence, particularly as that evidence concerns his observations of his daughter in the period immediately after an alleged sexual assault. I accept that the prospect of giving evidence in a court room, and in the physical presence of the respondent, are matters which will exacerbate his stress. It is in the interests of justice for the Court to take measures to reduce the impact of giving evidence on the physical health of witnesses such as the complainant’s father.
I do not accept that there will be any unfair prejudice that will flow from the taking of the complainant’s father’s evidence via audio visual link. The evidence of the complainant’s father is unlikely to be overly contentious. The jury will be directed that there may be many reasons for a person to give evidence via audio visual link and that they should not draw any adverse inference against the accused or give the evidence any greater or lesser weight by reason of the manner in which the evidence is given. There is no reason to conclude that the jury would not follow this direction.
Accordingly, I order that the witness, [redacted], give their evidence at the trial by audio-visual link from a place in the ACT that is outside the courtroom, namely the Court’s remote witness room, pursuant to s 32(1)(a) of the EMP Act.
Application for the complainant’s father to have a support person present
Relevant legislation
Section 49 of the EMP Act provides as follows:
49 Witness may have support person in court
(1) A court must, in a relevant proceeding, on application by a party who intends to call a witness, order that the witness have a person (a support person) in the court close to the witness, and within the witness’s sight, while the witness gives evidence.
(2) The court may order that a witness have more than 1 support person if it considers it is in the interests of justice.
(3) The support person must not—
(a) speak for the witness during the relevant proceeding; or
(b) otherwise interfere in the proceeding.
(4) Unless the court otherwise orders, the support person must not be, or be likely to be, a witness or party in the proceeding.
(5) If the relevant proceeding is a trial by jury, the court must tell the jury that—
(a) a witness having a support person in the court while giving evidence is a usual practice; and
(b) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the support person is present.
A “relevant proceeding” is defined in ss 43 and 46 of the EMP Act as including sexual assault proceedings in which there is a “witness with disability”. The phrase “witness with disability” is defined in s 42 to mean “a witness in a proceeding for an offence who has a mental or physical disability that affects the person’s ability to give evidence.”
Evidence
The prosecutor and the respondent relied on the same evidence adduced in support of the application for the complainant’s father to give evidence via audio visual link in support of this application.
Submissions
The prosecutor noted that as the proceedings are a “relevant proceeding”, if the Court finds the complainant’s father is a “witness with disability” and the disability affects his “ability to give evidence”, s 49 requires the Court to order the witness have a support person.
The prosecutor submitted the complainant’s father is a witness with a physical disability, being his cardiac condition. The prosecutor submitted that this condition affects the complainant’s father’s ability to give evidence, because it may be exacerbated by stress (which may occur in a courtroom environment) and if the condition is exacerbated by stress, it could prevent him from giving evidence.
The respondent opposed the prosecutor’s application for the complainant’s father to be permitted to give evidence in the presence of a support person. Ms Musgrove submitted that, without some level of certainty as to who the support person is to be and what particular support they would offer, there is no evidence of the utility of such a person. Insofar as it was foreshadowed that the support person may be a person with medical qualifications, Ms Musgrove contended that Sheriff’s officers could assist in the event that CPR was required to be administered.
Ms Musgrove further contended that the complainant’s father was not a “witness with a disability” within the meaning of s 43 of the EMP Act. Whilst accepting that the complainant’s father may have a medical condition, Ms Musgrove submitted that there was nothing to indicate that the complainant’s father would experience cardiac failure or that the stress of being involved in court proceedings would actually impact on his ability to give evidence.
Determination
The phrase “mental or physical disability” should be broadly construed, consistent with the purpose of s 43 to “improve access to justice for vulnerable witnesses” and to “reduce distress to those who are dealing with the impacts of very serious crimes”: Presentation Speech, Mr Hanson, Attorney-General, Royal Commission Criminal Justice Legislation Amendment Bill (ACT), Hansard Legislative Assembly 27 November 2018 at 4870 - 4871. Adopting a broad construction, I am satisfied that the complainant’s father’s cardiac condition amounts to a “disability” within the meaning of s 42 of the EMP Act. I am also satisfied that this condition affects the complainant’s father’s ability to give evidence to the Court. The complainant’s father’s treating doctor has stated that he has “significant concerns” that ongoing stress arising from the court proceedings may have a “serious detrimental effect” on the complainant’s father’s cardiac condition. Proper cardiac functioning is necessary for a witness to give evidence.
I am also satisfied that it is in the interests of justice for the complainant’s father to give evidence with the benefit of a support person. The presence of a support person will assist in reducing the stress of giving evidence, thereby minimising the possible impact of giving evidence on the complainant’s father’s health. The presence of a support person will not cause unfair prejudice: the support person must not speak for the witness, or otherwise interfere in the proceeding: s 49(3) of the EMP Act. The support person must not be a person who is or is likely to be a witness or party to the proceeding: s 49(4) of the EMP Act. As I have ordered that the complainant’s father may give evidence via audio visual link, the jury need not be aware of the presence of the support person in the witness room.
The prosecutor and the respondent each accepted that the Court has also inherent jurisdiction to permit a witness to give evidence in the presence of a support person. If I am wrong in concluding that the complainant’s father is a “witness with disability” within the meaning of s 43, I would make the order that the complainant’s father give evidence with a support person present pursuant to my inherent jurisdiction.
Accordingly, I order that the witness, [redacted], give their evidence at the trial with a support present, pursuant to s 49(1) of the EMP Act.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 2 February 2023 |