Evangelos Dailakis v The Queen
[2017] VSCA 281
•3 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0132
| EVANGELOS DAILAKIS | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGE: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 3 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 281 |
| JUDGMENT APPEALED FROM: | DPP v Dailakis (Unreported, County Court of Victoria, Judge Ryan, 17 March 2017) (Conviction) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of 38 charges of theft – Joint criminal enterprise – Prosecution alleged joint criminal enterprise involving applicant and co-accused – Jury direction as to verdict in case of joint criminal enterprise – Whether conviction unsafe – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| On the papers |
SANTAMARIA JA:
Following a trial in the County Court, the applicant and his co-accused, Timothy James Brosnan, were convicted of 38 charges of theft. Brosnan was convicted of four additional charges of theft. On 26 May 2017, the applicant was sentenced to seven years and seven months’ imprisonment with a non-parole period of five years and seven months. Brosnan was sentenced to eight years’ imprisonment with a non-parole period of six years.[1]
[1]See DPP v Brosnan [2017] VCC 668.
The applicant seeks leave to appeal against his conviction.
Factual background
The complainant company (‘the company’) is an insurance broking company in the business of selling insurance policies. Since 28 June 2008, Brosnan was employed as the company’s financial controller and administration manager. Soon after commencing his employment with the company, Brosnan established the company’s electronic bank transfer system by which the company could pay insurance underwriters via electronic funds transfer.
An electronic funds transfer required authorisation from two staff members: one to initiate the payment and the other to countersign the payment. In order to initiate or countersign an electronic funds transfer, the company’s bank issued four security ‘dongles’. Each dongle had a unique number by which its user could be identified. The dongles were assigned to four employees of the company, including to Brosnan.
The payment of insurance underwriters was the sole responsibility of Brosnan; he raised payments within the system and almost invariably gave the first authorisation for each transaction. The second authorisation came from any of the other employees within the company who had been assigned a dongle. After initiating and authorising a payment, Mr Brosnan’s practice was to summon another authorised employee into his office to give the second authorisation.
Circumstances of the offending
Between 19 August 2010 and 6 December 2011, Brosnan made a total of 42 unauthorised deposits totalling $1,910,146.92 into three different bank accounts. For all but one of the deposits, Brosnan initiated the funds transfer. Of the 42 deposits, 38 deposits totalling $1,822,783.53 were made into the account of a company named IT Solutions, which was not an insurance underwriter or otherwise a creditor of the company.[2] The applicant was a director of IT Solutions.
[2]The other four deposits, totalling $87,363.39, were made into the accounts of two other individuals. These individuals were also not insurance underwriters or creditors.
In making the unauthorised deposits to IT Solutions, Brosnan used the name of a legitimate insurance underwriter but replaced its BSB and bank account numbers with the details of the account held by IT Solutions. He thereby transferred funds into that account. Individual amounts that were transferred varied from approximately $7,500 to approximately $151,500.
Once the funds of the company were credited to IT Solutions’ account, they were transferred out of that account within days and moved through other accounts controlled by the applicant. The funds were then almost immediately withdrawn in cash or applied to clear any existing overdrawn balance. None of the funds were recovered.
The evidence at trial established that there were a number of telephone calls and text messages exchanged between Brosnan and the applicant at the time of the transactions and over a period of some 18 months during which the transactions occurred. In his sentencing remarks,[3] the trial judge said that, of all the transactions that had occurred, Brosnan fell to be sentenced on 12 continuing criminal enterprise offences, while the applicant fell to be sentenced on 11 such offences.[4]
[3]DPP v Brosnan [2016] VCC 668.
[4]Ibid [7].
Proposed ground of appeal
The sole proposed ground of appeal is that the conviction is unsafe on the basis that the trial judge erred in his direction to the jury that the jury could not find separate verdicts for the applicant and Brosnan.
In order to contextualise the proposed ground of appeal, it is necessary first to understand the prosecution’s case at trial before turning to the trial judge’s charge and subsequent direction to the jury.
The prosecution’s case at trial
A sense of the prosecution’s case at trial may be gained by examining parts of the prosecutor’s closing address to the jury. Relevantly, in his address, the prosecutor said:
Because the onus is always on the Crown to prove their case beyond reasonable doubt, one of the things that we also have to show is that there are no reasonable explanations for acts done by [Brosnan] which are consistent with innocence. So an example of this is in terms of [witness named]. Because I had been raised about an insurance claim you may recall [witness named] came from QBE Insurance and that there was a claim of damages for a chicken shop and that it had been paid to a [person named] the sum of $66,000 and that the limit of the policy was some $350,000. The reason that’s there is simply to show that if $1.8 million goes into [the applicant’s] account he can’t then suggest to you that that was because of the policy, because the policy only had $350,000 on it.
You also have the telephone calls, and the telephone calls, you heard from [witness named], when he was looking at those phone calls, and the chart that was prepared in relation to them, he had highlighted on the actual call records all of the telephone calls and SMSs which occurred at the time of the actual transactions. Now, there’s a lot more calls than that, but what the prosecution is relying on there is to show that at each of those transactions there is significant contact between these two men. It’s a situation where, again, you can’t sit there and say, as an accused, I didn’t know, I had nothing to do with this. It’s simply a case of there is constant contact, constant phone calls.
You might think that the difficulty that we have is that we don’t know what in fact was said, we don’t know what was in texts but certainly with that frequency and the fact that $1.8 million has moved through Mr Brosnan’s acts at [the company] to [the applicant’s] account, there would certainly be a lot to talk about.
…
So there’s 42 transactions for Mr Brosnan totalling a little over 1.9 million, and when you look at the evidence it shows that those transactions did occur. We do know that. We have the bank statements to confirm it. We have the evidence of the witness. We know that Mr Brosnan was the accountant. We know that Mr Brosnan was the one that set up this electronic banking account.[5]
[5]Transcript of Proceedings, DPP v Brosnan & Anor (County Court, Judge Ryan, 15 March 2017) 436–7, 439.
After running through some of the evidence given by witnesses over the course of the trial, the prosecutor said:
With fraud matters the thing that we always look at is where does the money go? You have the money going out of [the company], i.e. on the references for [witness named] accounts on 42 occasions. Thirty-eight occasions go to [the applicant’s] account ending in 4694. Once it hits that account, and you will recall that [witness named] we went through painstakingly to show where all that money then goes. It goes into that account very quickly and then comes out almost as fast, often on the same day.
It then gets moved from that account of 4694 into other accounts, moved back, different amounts here and there but ultimately what occurs is that money is pulled and then is withdrawn in large amounts in cash.[6]
[6]Ibid 445–6.
The prosecutor set out the various elements of theft. He turned to the element of dishonesty and concluded in the following terms:
Then the other question is ‘dishonestly’. Given that they needed deceit to get the transfers, that in itself should be enough for dishonestly, but it’s also a situation where Mr Brosnan knew that this money was also to be sent to insurance companies. Then you have a situation where there is nothing in terms of the charge that you need to prove that Mr Brosnan ends up with a benefit. I can’t prove whether he got anything out of this or not. I could take my instructor’s pen, steal it, throw it out the window so I don’t have it. I’ve still stolen it.
And here it’s a situation where you have so many phone calls between the two of them, so many phone calls around the times of these transactions, moneys going into [the applicant’s] account. Surely at 38 transactions totalling $1.8 million, if there was something which was other than being dishonest you would do something about it. Raise a question. You certainly wouldn’t take it knowing it’s not yours, but here you can see that the two men are working together to ultimately get a benefit. Mr Brosnan is transferring the money. It has to go somewhere.
It goes into [the applicant’s] account. He then withdraws it in cash. What happens after that we don’t know, but there is certainly no doubt that the money's been transferred. The evidence of all of the staff at MCA says it’s been done dishonestly, and ultimately when you look at each charge, and each charge has to be looked at separately, in my submission, the only finding that you could have in terms of this matter is one of guilt on each charge.[7]
[7]Ibid 448–9.
It is also necessary to set out, for completeness, certain remarks made by counsel for Brosnan and counsel for the applicant that indicate how each counsel perceived the prosecution’s case at trial. In her closing address to the jury, counsel for Brosnan said:
Now, ladies and gentlemen, as I said to you at the start of this case, the really critical issue as concerns Mr Brosnan, and remember that each of the accused must be considered separately, they’ve been heard together for convenience, but these are two separate cases against two separate men. The critical issue concerning Mr Brosnan is the issue of dishonesty.
His Honour’s going to give you a bit more detail about what that means in terms of the legal element but what I want to talk to you about in particular is the evidence that the prosecution is relying on to say that you can infer dishonest conduct on the part of Mr Brosnan, and it is a case where the prosecution is necessarily asking you to draw that inference. There’s no direct evidence of dishonesty. It’s something that you we'd have to decide from all the surrounding circumstances was established beyond reasonable doubt, and that's not an easy task here. Again, because there is no direct evidence
In this case finding that those transactions were dishonest, and again, as I said at the start of the case, requires you to find that Mr Brosnan was responsible for disguising those payments and knew that they were not going to the people they appeared to be going to, that’s the leap that you must take from the evidence that you have and you must be able to satisfy yourselves about beyond reasonable doubt before you can find Mr Brosnan guilty, and I say on the evidence that’s just not something that you can do.
You’ve heard [the prosecutor] refer to a couple of things that the prosecution’s relying on. I’ll just go through those with you and break them down a little bit. The first is, as [the prosecutor] said, that Mr Brosnan’s authorisation number was associated with the setting up of these transactions and either the first or, in a couple of instances, the second authorisation.
…
The second key thing the prosecution relies on to say you should infer that Mr Brosnan acted dishonestly is the contact between him and [the applicant] during the relevant periods. Again, it’s no secret that they knew each other. You’ve heard that [the applicant] was an accounting client of Mr Brosnan. You have a perfectly legitimate explanation for them being in contact with each other.
Now, the prosecution relies on there being contact around the charge dates. As you’ve seen in that summary that I went through with [witness named] yesterday and handed to you today, there was lots of other contact. There's nothing unusual about the contact on those dates. So there isn’t anything that you can draw from that because they were in almost daily contact anyway.
Something to remember here is that correlation doesn’t mean causation. We don’t know what those phone calls were about and there's no obligation, I remind you, on Mr Brosnan or [the applicant] to offer you an explanation. This is the prosecution’s case to prove. Can you really draw anything from the fact that they were in contact when they’re in contact all the time anyway?
The other thing that you’ve heard from the evidence is that [the applicant] and his company, IT Solutions, which was the owner of the bank account that the moneys were paid into, were clients of [the company]. You’ve heard that the client files where details were generally recorded, weren’t kept in any particular order, that there was access through the CBS system to those details and that anyone in [the company], or almost anyone, had access to that system. Can you exclude the possibility that someone else in the business was able to access those details and set up this scheme? As I said to you before, there’s no evidence, direct evidence, to say that it was Mr Brosnan who disguised those payments.[8]
[8]Ibid 449–55.
In his closing address to the jury, counsel for the applicant said:
The Crown case is a fairly simple one. It says that there was some agreement between Mr Brosnan and [the applicant] that Mr Brosnan would make arranged payments to get made to [the applicant’s] bank account and thereafter the parties would, in one form or another, whack up the proceeds as between then and they could continue to do this and that they could get away with this. There’s very little direct evidence that any of that has occurred. What you’re being asked to believe is that these payments emanated from the trust account of [the company] that [the applicant] was in some way connected with that appropriation, if it's an appropriation.
And further, that because of the number of phone calls which took place between [the applicant] and Mr Brosnan over a period of some 18 months or more, which is a snapshot, that that means that [the applicant] and Mr Brosnan were in collusion about this money, and only this money, and that because the money went into an account of a company of which [the applicant] was a director and was moved out, that [the applicant] was the person orchestrating that.
Now, where’s the evidence of it? Didn’t hear any. You heard there were a number of withdrawals, multiple withdrawals, of cash. Who withdrew them? Do we really know? We know the money was withdrawn, we don’t know by whom. We know the money was moved around, but we don’t know by whom. Ultimately you’re being asked to find [the applicant] guilty of being the person who actually did that. There’s no evidence of it, it’s all purely circumstantial evidence.[9]
[9]Ibid 457–8.
The trial judge’s charge and direction to the jury
I now turn to examine the trial judge’s charge in so far as it relates to the verdicts that the jury could have returned in the case. Shortly after the trial judge began his charge, he said:
As you know, in this case it is alleged by the prosecution that Mr Brosnan has committed 42 acts of theft and [the applicant] 38 acts of theft, and that in respect of those 38 acts of theft that they acted together, and I will come to deal with that aspect of them acting together later.
Each accused has pleaded not guilty and so it is for you and you alone to decide whether either one or both of them are guilty or not guilty of these crimes.[10]
[10]Transcript of Proceedings, DPP v Brosnan & Anor (County Court, Judge Ryan, 16 March 2017) 475–6.
The trial judge also foreshadowed to the jury that they will receive two separate directions: the first concerning the elements of theft; and the second concerning the elements of a joint criminal enterprise.[11]
[11]Ibid 488.
Having addressed the elements of theft, the trial judge moved to the concept of a joint criminal enterprise.[12] He summarised what he considered to be the prosecution’s case in that regard:
Simply put, the Crown case against – because they had an agreement between themselves to do this, one to transfer out, one to be the banker, simply put. Each accused has been charged with the offence of theft. The prosecution has alleged that they committed the thefts together.[13]
[12]Ibid 494.
[13]Ibid 494–5.
The trial judge explained the concept of a joint criminal enterprise and began to outline its elements as follows:
The law says that if two or more people are part of a joint criminal enterprise to commit an offence, the they will be equally guilty of that offence, regardless of the role they played. This is one of the situations in which the law holds a person responsible for the actions of other people.
In order to find the accused guilty of committing a theft by a joint criminal enterprise, the prosecution must prove the following four elements: (1), the accused made an agreement with each other to pursue a joint criminal enterprise and that that agreement remained in existence when the offence of theft was committed; (2) …[14]
[14]Ibid 495.
Before outlining the second element, the trial judge paused to make the following observation:
… and these are ‘ands’ just like with theft, and the theft and the joint criminal enterprise dovetail together like that, ladies and gentlemen, because the basis upon which the case is put against each of these two men is they did so by agreement.[15]
[15]Ibid.
The trial judge continued:
The second element is they, each accused, participated in the joint criminal enterprise in some way; (3), that in accordance with the agreement the parties between them performed all the acts necessary to commit the theft; (4), that the accused had the state of mind necessary to commit theft at the time of entering the agreement.
Before you can find each accused guilty of theft by joint criminal enterprise, you must be satisfied that the prosecution has proven all of these four elements beyond reasonable doubt.[16]
[16]Ibid 495–6.
The trial judge described what he considered would be the proper verdict if the jury were satisfied beyond reasonable doubt that there was a joint criminal enterprise. He said:
But if you were so satisfied beyond reasonable doubt that there was a joint criminal enterprise, that these four elements have been made out when you are considering the counts, then the proper verdict would be that each man is guilty, so long as the elements of theft are made out, all right? You cannot have a not guilty and a guilty because the Crown put their case on the basis of an agreement. No agreement; not guilty. Find an agreement and if the elements of theft are made out, the appropriate verdict is guilty.[17]
[17]Ibid 496.
The trial judge then explained in detail the elements of a joint criminal enterprise.[18] After doing so, the jury retired for a short break, during which the trial judge invited counsel to take any exception to his charge. No exception was initially taken.[19] After a short adjournment, counsel for Brosnan raised an issue with respect to the trial judge’s description of the proper verdict if the jury were satisfied beyond reasonable doubt that there was a joint criminal enterprise. The following exchange took place:
[18]Ibid 496–507.
[19]Ibid 509.
Counsel:The issues [sic] is this, going into this case and the way that it was opened, I hadn’t understood that the only necessary way out of the case was ‘all or none’. We understand there’s an allegation of joint criminal enterprise but I hadn’t understood that that was the only possible outcome in that they must necessarily find both not guilty or guilty. The way that Mr Brosnan’s case has been run, of course, focuses solely on his part in it, as it must necessarily do, but that one possible outcome was that he had nothing, personally, to do with it but there may have been some other scheme in place that he was not involved in, that did involve [the applicant]. But that’s the way his case has been put.
Judge:All right. If it is, it’s lost on me. But in any event, the circumstances [sic] is this, the Crown’s case is 38 counts were committed by way of a joint criminal enterprise. The only two persons of that joint criminal enterprise are you, Mr Brosnan and [the applicant]. If that enterprise is not proved, not guilty, both. If it is proved and the elements of theft are made out count by count, guilt for both.
Counsel:Your Honour, as I said, I don’t take it any further than that. Just to point out that that’s – I hadn’t understood that was the way the case was being run, was that they were the only two possible binary outcomes.
Judge:But how could it be any other way … when two men are jointly charged with a crime, they can only be charged by way of a form of complicity. The form of complicity here is joint criminal enterprise, it had to be. As there are only two participants to the agreement on the Crown case, if there is no agreement proved, the Crown case falls away, not guilty. If the agreement is proved and the elements of theft are made out count by count, then as a matter of logic, the verdicts must be in respect of each accused, guilty.
Counsel:I hear what Your Honour says about the nature of the charges, I don’t take it any further.
Judge:But I don't understand what you’re saying to me. Are you saying to me that’s not right and, if so, why not?
Counsel: Again, I’m sort of thinking on my feet, Your Honour.
Judge: That's what you’re paid for.
Counsel:The only difficulty is whether it may have been possible for, for example, [the applicant] to have been found guilty of theft, not by way of a joint criminal enterprise but because the elements are complete as concerns his actions.
Judge: But that’s not how the case is put against you.
Counsel: Your Honour, as I said, I take it no further.
Judge:It will work like this, if I found another way to convict [the applicant] other than the Crown put its case, any conviction based on that would end up across the road and wouldn’t last more than one turn of a revolving door because I’ve changed the case against [the applicant], a case not put against them by the Crown. In the same say is if I changed, rearranged the deckchairs on the Titanic in respect of Mr Brosnan and created a case that has not been put against you by the Crown, you would be entitled to be screaming from the rafters at me and it’d be right.[20]
[20]Ibid 511–3.
The trial judge then asked the prosecutor and counsel for the applicant whether any exception was taken to ‘how the Crown case is put and how the effect of the joint criminal enterprise operates on verdicts in this case’.[21] No such exception was taken.[22]
[21]Ibid 513.
[22]Ibid.
Once the jury returned following a short break, the trial judge proceeded with the balance of his charge. Relevantly, he said:
As you know, there are two men on trial here and therefore there are two separate trials being conducted in respect of each of them. They are being heard together for convenience. I want to remind you that you must be careful not to allow convenience to override justice. The accused and the prosecution are entitled to have the case against each accused considered separately.
You must consider the case against each accused separately, in light only of the evidence that applies to that accused. You must ask yourselves in relation to each accused whether the evidence relating to that accused has satisfied you beyond reasonable doubt that he is guilty of the offence that you are then considering. If the answer is yes, then you should find him guilty. If the answer is no, then you should find him not guilty.
You will note that I said you must consider the case against each accused in light only of the evidence which applies to that accused. This is because some of the evidence you have heard in this case is only relevant against one accused or another. In particular, a piece of evidence is only relevant to one accused, you may only use it when deciding whether or not that accused is guilty. You must not consider it in respect of the other accused. Just pardon me for a moment.
As an example, the fact that Mr Brosnan created the entries in the transfer and was a first signatory to all the charges save one is admissible against Mr Brosnan and not against [the applicant]. And [the applicant’s] dealing with the funds in the accounts is admissible against him. However … should you find beyond reasonable doubt that these actions occurred pursuant to a joint criminal enterprise – that is the agreement as I have defined to you – then each of Mr Brosnan and [the applicant] are reliable [sic] for each other’s actions.
So whilst you consider the evidence in respect of each accused separately, because the case put against [the applicant] and Mr Brosnan in respect of the 38 counts where they are charged jointly is predicated upon there being an agreement to enter into a joint criminal enterprise, you understand that if you find that each act – Mr Brosnan’s act of transfer and [the applicant’s] act of dealing with funds – if you find those acts occurred, occurred pursuant to a joint criminal enterprise then of course that evidence is admissible against each – one another because that is demonstrating the acts that were performed by one in respect of that agreement and vice versa.
Now, you have got 42 counts to consider in respect of Mr Brosnan and 38 counts in respect of Mr Brosnan and [the applicant] jointly. Likewise, all of those charges are being heard together for convenience’s sake in one trial. You have got to be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately, so you look at each transaction separately. But you do so in light of the surrounding circumstances that has been relied upon – or the surrounding evidence of those transactions.
Now, each charge must be considered separately in light only of the evidence which applies to it. You must ask yourselves in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular crime. If the answer is yes, then you should find the accused guilty of that charge. If the answer is no, then you should find the accused not guilty.
You will note that I have said that you must consider each charge in light only of the evidence which applies to it. This is because some of the evidence that you have heard in this case is only relevant to one charge or another. If a particular piece of evidence is only relevant to one charge, you may only use it when deciding whether or not the accused is guilty of that charge. You must not consider it in relation to any other charges.[23]
[23]Ibid 515–8.
Having explained the need for the jury to reach a unanimous verdict on each charge, the trial judge concluded:
Now, as I have indicated, the Crown put its case against each accused on the basis of a joint criminal enterprise in respect of the 38 counts where each accused are charged jointly. That is, they must prove that arrangement existed beyond reasonable doubt in respect of the charge that you are considering, that is the individual charge as you are considering it.
Now, if you are satisfied beyond reasonable doubt that the joint criminal enterprise has been made out, when considering, let us say, Count 1, and you were satisfied that the elements of theft were made out, then your proper verdict would be that of guilty in respect of both accused.
But if you were not satisfied that they acted pursuant to a joint criminal enterprise in respect of the charge that you were then considering, then your verdict would be not guilty in respect to both accused because you have not found the agreement and the agreement is the foundational plank of the Crown case.[24]
[24]Ibid 519–20.
Shortly thereafter, the jury retired to consider its verdict. At that point the trial judge again asked counsel whether there were any exceptions to his charge. There were none.[25] After a temporary adjournment, the trial judge returned to the bench with a note from the jury in the following terms:
Confirmation: In the event the jury cannot find a joint criminal enterprise then a verdict of not guilty is arrived at by definition for both accused on all 38 counts.[26]
After reading the note, the trial judge remarked, ‘and the answer to that question is “yes”’, to which the prosecutor replied, ‘Correct’.[27] The jury returned from its deliberation briefly, and the trial judge told them that the answer to their question is ‘yes’.[28] The jury once again retired to consider its verdict.
[25]Ibid 524.
[26]Ibid 525.
[27]Ibid.
[28]Ibid 526.
The applicant’s submissions
The applicant contends that it was entirely open to the jury to find separate verdicts for each co-accused. He observes that the question reveals that the jurors had turned their mind to the possibility of separate verdicts. The applicant argues that the trial judge’s direction ‘hindered the unfettered right of the jury to make findings as they thought appropriate’ and was wrong in law, rendering the findings of the jury unsafe in all of the circumstances.
The applicant also contends that the trial judge’s direction ‘prevented the jury from judging each defendant solely on the evidence which was legally admissible against him’.[29] The applicant says that it is an accepted principle of law that, in a trial involving two or more accused, the jury must separately consider the evidence against each accused and be free to make separate findings against each accused.
[29]The applicant cited R v McKittrick [1982] VR 637 in support of this proposition.
Analysis
Where the prosecution propounds a case on the basis of joint criminal enterprise, it is open to a jury to convict one of the defendants and acquit the other.[30] It seems to me that it is arguable that the jury’s question (which was itself obscure) is consistent with the jury having contemplated such a possibility and that the trial judge’s direction to the jury that they were required to find a common verdict may have deprived the applicant of an opportunity of a verdict different from that of his co-accused.
[30]Osland v The Queen (1998) 197 CLR 316; McEwan v The Queen (2013) 41 VR 330, 337–8 (Redlich and Coghlan JJA and Dixon AJA).
Whether, as a practical matter, the answer worked any unfairness to the applicant can be considered on the appeal.
Conclusion
I would grant leave to appeal.
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