Lanciana v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0134

PASQUALE LANCIANA	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2023
DATE OF JUDGMENT:	6 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 78
JUDGMENT APPEALED FROM:	DPP v Lanciana (Unreported, County Court of Victoria, Judge O’Connell, 31 May 2021)

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CRIMINAL LAW – Appeal – Conviction – Armed robbery – False imprisonment – Seven counts of money laundering – Armoured van stopped at fake roadworks site to facilitate robbery of cash – Guards restrained in handcuffs at gunpoint – Alternative Crown cases of physical participation in robbery and planning or organising robbery – Whether trial judge’s refusal to give extended unanimity direction in error – Jury not required to be unanimous as to which alternative established – No direction required – Leave to appeal granted – Appeal dismissed.

Crimes Act 1958, s 323.

R v Giannetto [1997] 1 Cr App R 1, applied; R v Swindall (1846) 175 ER 95; Du Cros v Lambourne [1907] 1 KB 40; Thatcher v The Queen [1987] 1 SCR 652; R v Leivers [1999] 1 Qd R 649; R v Cramp (1999) 110 A Crim R 198; Walsh v The Queen (2002) 131 A Crim R 299; Michaels v Western Australia [2009] WASCA 174; Magnus v The Queen (2013) 41 VR 612, discussed.

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Counsel
Applicant:		Mr T Game SC with Mr PJ Smallwood
Respondent:		Ms DI Piekusis KC with Mr G Buchhorn
Solicitors
Applicant:	Sarah Pratt & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MCLEISH JA
KENNEDY JA:

On the morning of 22 June 1994, an Armaguard van carrying a large amount of cash left the Reserve Bank in Collins Street, Melbourne. At about the same time, five men dressed as road workers set up a fake roadworks site in Harcourt Parade, Richmond, near the entrance to what was then the South Eastern Freeway.
About 15 minutes later, the Armaguard van turned into Harcourt Parade and approached the fake roadworks site. One of the purported road workers used a stop sign to stop the van. Another offender started to use a loud concrete saw as a distraction. A third drove a truck behind the Armaguard van, blocking the view of cars stopped behind it.
Two offenders, one brandishing a firearm, entered the van through the rear door using a customised key. The offenders handcuffed the three Armaguard workers and placed bags over their heads. After driving the van a short distance, the offenders stopped and fled with the cash from the van.
On 9 August 1994, a company associated with the applicant purchased a block of land in Williamstown for $955,000. The purchase was arranged by a solicitor, John Anile, who was a friend of the applicant. It was agreed that the price on the contract of sale and the conveyancing documents would be $555,000 and that the remaining $400,000 would be paid in cash. During the settlement period, the applicant paid several cash instalments totalling $400,000 to the vendor, often through Mr Anile. The purchase settled on 4 July 1995. In April 1997, Mr Anile ceased the involvement he had with the purchasing company, and the applicant and persons associated with him took his place.
On 19 August 1994, a person known to the applicant (‘Witness O’) attended three city banks and at each of them exchanged $4,000 in $20 notes for $50 and $100 notes. Another person, wearing a jacket similar to one then owned by the applicant, engaged in three similar transactions three days later. The total amount exchanged was $18,000. The serial numbers of the $20 notes used in the transactions were almost exclusively from packs of notes issued to the Reserve Bank in Melbourne on 8 June 1994, at the site from which the Armaguard van had collected the cash stolen in the robbery.
The applicant was not charged until 18 November 2016. He was charged with armed robbery, false imprisonment and seven counts of money laundering (involving the purchase of the Williamstown property and the six banking transactions).
A trial commenced on 27 May 2019, but the jury was discharged after it was unable to reach a verdict. A second trial, delayed due to the COVID pandemic, commenced on 27 April 2021 and verdicts of guilty were returned on all charges on 31 May 2021.
Before the first trial started, the applicant made an application for an extended unanimity direction, which was opposed by the prosecutor. Defence counsel contended that the prosecutor alleged two different modes of participation in the armed robbery and false imprisonment. By the first version, the applicant planned or organised those offences, but did not physically carry them out. By the second, he was one of the five purported road workers who carried out the offending acts. It was contended that the jury should be directed that they must, in order to return a verdict of guilt, be unanimous as to which mode of participation had been proved.
The ‘planning or organising’ basis of liability relied in particular on evidence of Witness O, to the effect that the applicant had said, in a conversation covertly recorded on 30 July 2014, that he ‘didn’t do the robbery’, he ‘just organised it’. Witness O also gave evidence of having exchanged cash at city banks at the request of the applicant in August 1994. Witness O said that the applicant stated, after a photograph of Witness O conducting one of the transactions appeared in the media in about January 1995, that the money had been stolen in ‘the Richmond robbery’ and that he had been involved in that robbery with others, one of whom he named. Witness O also said that some years later, upon being asked about the possibility of Witness O being implicated in the robbery, the applicant stated that he had been involved in the robbery with four others, whom he named.
On 1 May 2019, the judge refused the defence application for an extended unanimity direction. In his ruling, he said:
In my judgement, taking into account all of the proposed evidence the alternative modes of participation alleged here, are not so factually inconsistent or mutually exclusive as to engage the qualification described by Lamer J in Thatcher.
…
The jury will make what they will of the differences between the alleged admissions in the light of their own assessment of all of the evidence and the arguments presented by counsel. They will be directed, however, that if they are satisfied beyond reasonable doubt that the accused physically carried out the offence with the requisite mens rea, i.e. as a principal, then they should convict him.
Further, they will also be directed that they cannot convict the accused unless they are at least satisfied beyond reasonable doubt that the accused participated in the offences by planning or organising them with the requisite intent, i.e. as an accessory before the fact.
In practical terms the jury will all need to be satisfied, to adapt the language of Kennedy LJ in Giannetto at 7G, that if the accused did not himself carry out the offence, he at least helped organise it.
Once the evidence has been given at trial, I will hear counsel as to the precise wording of appropriate directions. Suffice to say for present purposes that the jury will be instructed that they will need to be satisfied beyond reasonable doubt that the accused participated in the armed robbery and the false imprisonment either as a principal or an accessory before the fact.
It follows that I accept the prosecutor’s submissions and that the application to direct the jury that they would need to be unanimous in determining the mode of participation in these offences, is refused.[1]
[1]DPP v Lanciana (Unreported, County Court of Victoria, Judge O’Connell, 1 May 2019) [34]–[40] (emphasis in original) (‘Ruling No 4’).
The sole ground upon which leave to appeal is sought is that a substantial miscarriage of justice resulted from the jury not having been given an extended unanimity direction.
The applicant accepted that, if the jury had been directed in the terms foreshadowed by the judge in his ruling, namely that they needed to be satisfied, unanimously, that if the applicant did not himself carry out the offence, he at least helped organised it, then the appeal could not succeed.
It was submitted, however, that no such direction was given and that the jury was instead presented with a dichotomy between participation (in the sense of physical presence) and planning. Senior counsel observed that the prosecutor at the second trial opened the case on the basis, consistent with the foreshadowed direction, that the applicant ‘planned [the robbery] and was there carrying it out, or at the very least, he was one of the planners and organisers’. In closing, however, the prosecutor was said to have been ambiguous. The prosecutor then told the jury that whether or not they accepted Witness O’s evidence that the applicant said that he ‘did the armed robbery — that is, participated in it’, there could be no doubt that he said in the recorded conversation with Witness O that he organised it. The prosecutor said that the applicant was ‘equally guilty whether he was present on the day’ or ‘just organised it’.
The applicant submitted that, regardless of what the jury were to make of these submissions of the prosecutor, the judge in his charge drew a radical distinction between the applicant being part of a joint criminal enterprise, on the one hand, and organising the offences but not being present, on the other. Critically, it was said, the judge did not describe the joint criminal enterprise as including its planning or organisation. Instead, he directed the jury that, if they were ‘not satisfied that the accused actually participated in the carrying out of the armed robbery and false imprisonment by being part of a joint criminal enterprise that did commit those offences’, they would ‘go on to consider this alternative allegation that he just organised it’.
The charge proceeded along the lines set out above. The judge first directed the jury as to the elements of a joint criminal enterprise. He said that, because a joint criminal enterprise had plainly been carried out, the only issue for the jury’s consideration under that basis of alleged liability was ‘whether or not the prosecution have proven beyond reasonable doubt that the accused was one of the persons who carried out the road gang armed robbery and false imprisonment’. The judge summarised the point, slightly differently, by saying that the only issue in respect of the first basis of liability was whether ‘the prosecution proved beyond reasonable doubt that [the accused] was a party to the joint criminal enterprise that committed the armed robbery and false imprisonment’.
After explaining the elements of a joint criminal enterprise to the jury and identifying the only issue in dispute, in the terms set out above, the judge told the jury that if they were not satisfied beyond reasonable doubt that the applicant was a party to the joint criminal enterprise, they ‘would go on to consider the second alternative basis of liability alleged by the prosecution’. He described this as follows:
So, the alternative way in which the Crown allege[s] Mr Lanciana was involved in the offences of armed robbery and false imprisonment does not suggest that he personally committed the acts that make up those offences. Instead, the prosecution alleges that he committed those offences by assisting or encouraging others to commit the offences. That is by organising it.
Later, the judge said:
So, to very quickly summarise, the Crown says that Mr Lanciana committed charges 1 and 2 on the indictment … as a principal offender and party to a joint criminal enterprise. That is, as a person who was present and helped carry out the offences. In the alternative, the Crown says that if he was not present and did not help carry out the offences, he at least helped organise the offending, that is he at least counselled and procured the offending.
The judge concluded his charge as follows:
The prosecution, you will recall, has argued that there are two different bases upon which you can find Mr Lanciana guilty of those offences. Firstly, the prosecution has argued that Mr Lanciana’s guilty of armed robbery and false imprisonment because he carried out the offences as a principal offender; that is, as a party to the joint criminal enterprise.
Alternatively, the prosecution has argued that Mr Lanciana is guilty of armed robbery and false imprisonment because he organised the offending as a counsellor or procurer, and you will recall my directions to you about counselling or procuring.
Now, although you must all reach the same decision in relation to these offences; either guilty or not guilty, you do not need to all rely on the same basis in reaching that decision. For example, seven of you might find Mr Lanciana guilty of those offences as a principal offender while the other five of you might find Mr Lanciana guilty as a counsellor or procurer. That does not matter as long as you all reach the same verdict in relation to armed robbery and false imprisonment. In such a situation your verdict is still considered to be unanimous despite your different reasoning. What is important is that you all agree on the final decision; your verdict of guilty or not guilty in relation to those offences must be unanimous.[2]
[2](emphasis added).
The applicant submitted that the absence of a unanimity direction also infected the convictions on the money laundering charges because those charges alleged that the applicant laundered the proceeds of the armed robbery. If the jury was not properly satisfied that the applicant had committed the armed robbery, they therefore could not be satisfied that the seven transactions involved the applicant’s proceeds from that robbery.
Senior counsel’s concession that, if the judge had directed the jury as he had foreshadowed in his ruling, there would have been no need for an extended unanimity direction, was well-founded. A long line of authority establishes that, where it is alleged that an offence was committed, either by the accused in person, or by a person acting at the behest of the accused, no such direction is required.
The starting point is s 323 of the Crimes Act 1958, as it stood at the time of the present offending. It provided:
A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender.
This provision, and its predecessor, were to the same effect as s 8 of the Accessories and Abettors Act 1861 (UK). Even before that provision, unanimity was not required in R v Swindall & Osborne,[3] in which a man had been killed when struck by one of two horses and carts which two drivers had been racing. The indictment for manslaughter contained one charge of incitement, by each driver of the other, leading to both carts running over the victim, together with two counts alleging in the alternative that one driver had been present, aiding and assisting the other to drive over the victim. Pollock CB held that it was immaterial whether one or both carts had run over the deceased, as the accused had been engaged in a joint unlawful enterprise.[4] If only one cart could be shown to have run over the deceased, it therefore did not matter which of the accused was driving it. In effect, therefore, the jury did not need to be unanimous as to which of the counts was made out.
[3](1846) 175 ER 95; 2 Car & K 230.
[4]Ibid 97.
Similarly, in Du Cros v Lambourne,[5] the accused was charged with dangerous driving but alleged that he was a passenger in the vehicle. It was held that it was immaterial whether he was the driver or had aided and abetted the dangerous driving.
[5][1907] 1 KB 40.
In R v Giannetto,[6] these authorities were applied in a case of murder in which it had been alleged that the accused had either killed his wife or procured someone else to do so. The English Court of Appeal referred to the decision of the Supreme Court of Canada in Thatcher v The Queen,[7] in which the same alternative case was put by the prosecution. Section 21(1) of the Canadian Criminal Code, RSC 1970, was to the same effect as former s 323 of the Crimes Act 1958.[8] Dickson CJ stated that the provision was ‘designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant’, and to ‘alleviate the necessity for the Crown choosing between two different forms of participation in a criminal offence’.[9] He added:
Obviously, if the charge against Thatcher had been separated into different counts, he might well have been acquitted on each count notwithstanding that each and every juror was certain beyond a reasonable doubt either that Thatcher personally killed his ex-wife or that he aided and abetted someone else who killed his ex-wife. This is precisely what s 21 is designed to prevent.[10]
[6][1997] 1 Cr App R 1 (‘Giannetto’).
[7][1987] 1 SCR 652 (‘Thatcher’).
[8]Giannetto [1997] 1 Cr App 1, 6 (Kennedy LJ for the Court).
[9]Thatcher [1987] 1 SCR 652, 690, 694 (Dickson CJ for Beetz, Estey, Wilson and Le Dain JJ, Lamer J agreeing at 703, La Forest J agreeing at 704).
[10]Ibid 694.
Moreover, Dickson CJ held, the factual difference between the theories was overstated because the ‘overwhelming mass of evidence against Thatcher was consistent with either theory’.[11] The jury therefore did not need to be unanimous as to which of the alternative cases advanced by the Crown they accepted.
[11]Ibid 698–9 (emphasis in original).
Lamer J reached the same conclusion, with the qualification that, when the Crown alleges factually inconsistent theories, and evidence inculpating the accused on one theory would exculpate the accused on the other, the jury must be instructed that they must be unanimous as to the theory they adopt if they wish to convict on that evidence.[12] The Court in Giannetto embraced this observation, in following Thatcher, and suggested that the same qualification applied if the defence raises theories that are inconsistent.[13]
[12]To similar effect, La Forest J said that s 21 did not of itself justify conviction on the basis of mutually exclusive or alternative theories of culpability. Whether unanimity is required would depend on the nature of the offence, the alternative theories and the totality of the evidence: ibid 705.
[13]Giannetto [1997] 1 Cr App 1, 7 (Kennedy LJ for the Court).
The reasoning in Thatcher and Giannetto has been accepted in this State, and in New South Wales and Queensland.[14] In R v Leivers, Fitzgerald P and Moynihan JA said:
When more than one basis of criminal liability is relied on against an accused, it is, in our opinion, necessary for the jury to be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt. It will not necessarily be sufficient for some members of the jury to be satisfied that the requirements of one basis of liability are established and for other members of the jury to be satisfied that the requirements of another basis of liability are established. However, that will be sufficient if the alternate bases of criminal liability do not involve materially different issues or consequences.[15]
[14]Walsh v The Queen (2002) 131 A Crim R 299; [2002] VSCA 98 (‘Walsh’); R v Serratore (1999) 48 NSWLR 101; R v Leivers & Ballinger [1999] 1 Qd R 649 (‘Leivers’).
[15]Leivers [1999] 1 Qd R 649, 662; see also 667–8 (Pincus JA).
The language of ‘materially different issues or consequences’ was also used by the New South Wales Court of Appeal in R v Cramp,[16] and later by the Western Australian Court of Appeal in the following terms:
Where there are alternative legal formulations of liability which rest on the same or a substantially similar factual foundation and which do not involve materially different issues or consequences, the jury only has to be unanimous in the verdict; it is not necessary that all members of the jury arrive at the same verdict by the same pathway. … The principle applies to alternative offences (Cramp) and alternative bases of responsibility for a single offence (Leivers and the numerous authorities considered in Cramp at [31]–[43]).[17]
[16](1999) 110 A Crim R 198, 213 [68] (Barr J, Sully and Ireland JJ agreeing at 200 [1]); [1999] NSWCCA 324.
[17]Michaels v Western Australia [2009] WASCA 174 [10] (McLure JA, Owen JA agreeing at [1], Miller JA agreeing at [26]). See also Mouritz v Western Australia [2006] WASCA 165 [17] (Roberts-Smith JA); Bui v The Queen (2011) 215 A Crim R 93, 132 [166]–[167] (Neave JA, Redlich JA agreeing at 147 [264], Hansen JA agreeing at 147 [265]) (‘Bui’); [2011] VSCA 404; El-Waly v The Queen (2012) 46 VR 656, 666 [57] (Neave, Weinberg JJA and Bell AJA); Wilson v The Queen [2016] VSCA 62 [35] (Weinberg AP, Priest and Beach JJA).

The Court in Cramp had earlier pointed to the distinction which needs to be made in this context between ‘alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts’.[18]
[18](1999) 110 A Crim R 198, 212 [65] (Barr J, Sully and Ireland JJ agreeing at 200 [1]); [1999] NSWCCA 324.
This Court said in Walsh v The Queen after reviewing the authorities:
To sum-up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on ‘unanimity’ about one or other or more of those bases, at least if they do not ‘involve materially different issues or consequences’. (How far in cases of murder or manslaughter this qualification extends … is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend ‘upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence’. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.[19]
[19]Walsh (2002) 131 A Crim R 299, 316–7 [57] (Phillips and Buchanan JJA, Ormiston JA agreeing at 300 [1]). See also Bui (2011) 215 A Crim R 93, 129 [151] (Neave JA, Redlich JA agreeing at 147 [264], Hansen JA agreeing at 147 [265]); [2011] VSCA 404.
This passage has been cited with approval by the High Court.[20]
[20]Lane v The Queen (2018) 265 CLR 196, 209 [45] (Kiefel CJ, Bell, Keane and Edelman JJ). See also Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342, 357–8 [77]–[80] (Allsop CJ, Wigney and Abraham JJ) and the cases cited in Magnus v The Queen (2013) 41 VR 612, 620 [33] (Buchanan, Ashley and Redlich JJA) (‘Magnus’).
The underlying principle to be applied was explained by this Court in Magnus v The Queen in the following terms:
The protective common law principle of jury unanimity reflects the fundamental thesis of the criminal law, that a person accused of a crime should be given the benefit of any reasonable doubt. The principle rests upon the elementary proposition that the accused is only to be convicted upon the basis of the particular act, matter or thing alleged as the foundation of the charge. It remains of critical importance that the jury’s collective mind is focused on the precise elements of the accusations brought against the accused. For this reason, the High Court and other Australian courts have insisted that the rule requiring unanimity in the jury’s verdict must reflect the satisfaction of the whole jury that the prosecution has established the essential ingredients of each offence charged. This rule is so fundamental as to be generally assumed without the need for authority. What is essential is that, to return a verdict of guilty, the members of the jury must be unanimous in their conclusion that each of the material ingredients of the offences charged, as alleged in the indictment and as proved in the way the case has been conducted, has been proved beyond reasonable doubt. In this way the law addresses ‘the requirement for certainty as to the offence charged, which requirement also underlies the rule against duplicitous counts’.[21]
[21]Magnus (2013) 41 VR 612, 622–3 [43] (Buchanan, Ashley and Redlich JJA) (citations omitted).
The Court went on to identify how the ‘essential ingredients’ of the offence are to be identified for this purpose:
What elements in the particular case are essential to criminal liability and thus require unanimity is, as Elias CJ observed in R v Mead ‘a practical question, not a technical one’. The essential points upon which the jury must agree extend beyond the statutory elements. What must be agreed turns not only upon the legal elements of the offence but also upon the factual elements essential to the case advanced for the prosecution and defence. Not only must there be unanimity as to the actus reus of the offence, but the elements must be ‘anchored to the facts relied upon by the prosecution as the basis of liability and put in contention by the defence. Without such agreement there is no common foundation for the verdict.’ The jury verdict will not be acceptable if ‘based upon quite disparate findings relating to the very foundations upon which the verdict rests’.[22]
[22]Ibid 623–4 [46] (citations omitted).
The issue in the present application for leave to appeal is whether the manner in which the judge directed the jury causes the case to fall outside the line of authority associated with Giannetto. In other words, does the fact that the judge directed the jury in terms of a joint criminal enterprise involving the physical robbery, and an alternative case of planning or organising that offending, rather than inviting the jury to decide whether it was satisfied that the applicant had at least planned or organised the robbery, mean that the jury was required to be unanimous as to either of the identified alternative bases of liability?
In our opinion the answer is ‘no’. When the substance of the matter is considered, the only evidence which did not support each of the alternative bases of liability was the evidence of Witness O as to the three confessions. The first two confessions went to involvement in the physical robbery, whereas the third, recorded, conversation supported only the planning or organising basis of liability. Any difference among members of the jury as to this evidence would not have amounted to ‘quite disparate findings relating to the very foundations’ of the verdict. Instead, as in the Giannetto line of cases, any such difference would simply have meant that the jury was satisfied on the whole of the evidence that the applicant had planned the robbery or committed it in person. At its heart, this is just another way of saying that he ‘at least’ planned it.
This is consistent with the effect of former s 323 of the Crimes Act, as Dickson CJ explained in Thatcher: the distinction between participation as a principal and as an accessory was made legally irrelevant. The case is of the first kind identified in Walsh, namely where alternative legal bases of guilt are proposed by the Crown depending substantially upon the same facts, and not involving ‘materially different issues or consequences’. As such, no unanimity was required as to which legal basis applied.
The manner in which the issue was handled at trial reinforces the above conclusion. The direction that the judge proposed giving in his ruling, made before the first trial, was not simply overlooked when the time came to charge the jury in the second trial. In discussions with counsel, the judge indicated that he considered a clear distinction between planning, on the one hand, and physical presence as part of a joint enterprise, on the other, would be easier for the jury to understand. The prosecutor was concerned that the jury not think that the joint enterprise did not involve planning, but ultimately accepted that this could be dealt with separately if the jury asked a question.
At no stage in the second trial was any direction sought along the lines the judge had foreshadowed before the first trial, nor was exception taken to the way in which the judge directed the jury as to unanimity. This is significant to the ‘practical’ assessment as to what were the essential ingredients of the offences charged.[23]
[23]See, eg, Bui (2011) 215 A Crim R 93, 133 [171] (Neave JA, Redlich JA agreeing at 147 [264], Hansen JA agreeing at 147 [265]); [2011] VSCA 404.
For these reasons, as in Wilson v The Queen, the ‘essential facts that underpinned each of the bases upon which the Crown put its case on the … charge were of sufficient similarity not to require any unanimity direction of the kind which the applicant now seeks’.[24]
[24][2016] VSCA 62 [35] (Weinberg AP, Priest and Beach JJA).
Leave to appeal should be granted, but the appeal should be dismissed.

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[2023] VSCA 78

6 April 2023