Lloyd v The King

[2023] SASCA 106

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

LLOYD v THE KING

[2023] SASCA 106

Judgment of the Court of Appeal  

(The Honourable Justice David, the Honourable Justice Stanley and the Honourable Justice Kimber)

28 September 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS - GENERALLY

This is an application for permission to appeal against conviction.

The appellant was tried before a judge alone on two counts of aggravated indecent assault. Count 1 alleged that the appellant touched the complainant through her jeans on or near her groin. Count 2 alleged that the appellant took hold of the complainant’s hand and placed it on his jeans over his penis. The appellant was found not guilty on Count 1 but guilty on Count 2.

The appellant seeks permission to appeal the verdict of guilty on Count 2. He seeks leave to appeal on two grounds:

1.  the verdict of guilty is unreasonable and cannot be supported having regard to the evidence; and

2.  the conviction should be quashed on the ground that the trial judge’s reasons are inadequate.

Held (per the Court) granting permission to appeal but dismissing the appeal:

1.  there is no basis to conclude that the judge must have entertained a reasonable doubt about the complainant’s evidence and the appellant’s guilt; and

2.  it was not necessary for the trial judge to undertake a minute explanation of every step in his reasoning process. The appellant’s submissions go no further than a complaint that the judge failed to address a peripheral dispute. None of those matters were necessary steps to the verdict of guilty on Count 2.

Juries Act 1927 (SA) s 7(4), referred to.
DL v The Queen (2018) 266 CLR 1; Douglass v The Queen (2012) 86 ALJR 1086; Fleming v The Queen (1998) 197 CLR 250; Libke v R (2007) 235 ALR 517; Pell v The Queen (2020) 268 CLR 123; R v Keyte (2000) 78 SASR 68; R v Lloyd [2023] SADC 2; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, considered.

LLOYD v THE KING
[2023] SASCA 106

Court of Appeal – Criminal:  David JA, Stanley AJA and Kimber AJA

1. THE COURT:  This is an application for permission to appeal against conviction. 

2. The appellant was tried before a judge alone on two counts of aggravated indecent assault.  Both counts were alleged to have been committed at Oaklands Park on 28 August 2021.  At the time, the appellant was 19 years of age.  The complainant, S, was 10 years of age.  The offending was alleged to have occurred at a venue called “Intencity Games” at the Marion Shopping Centre. 

3. The appellant, who suffers from autistic spectrum disorder, was at the premises as part of an organised excursion involving a group of 10 young people who suffer from that disorder.  One of the supervisors was S’s father.  S and her younger sister attended the outing with their father.  During the course of the outing at Intencity Games the appellant and S met each other and played various electronic games together.  On two occasions they played a game called Deal or No Deal.  The Deal or No Deal machine had only one stool on which a player could sit while playing the game.  On each occasion the appellant sat on the stool and S sat in his lap or on his leg. 

4. Count 1 alleged that the appellant touched S through her jeans on or near her groin.  Count 2 alleged that the appellant took hold of S’s hand and placed it on his jeans over his penis. 

5. The appellant was found not guilty on Count 1 but guilty on Count 2.

6. The appellant seeks permission to appeal the verdict of guilty on Count 2.  He seeks leave to appeal on two grounds.  First, that the verdict of guilty is unreasonable or cannot be supported having regard to the evidence, and second, that the conviction should be quashed on the ground that the trial judge’s reasons are inadequate. 

   The reasons for the verdict of guilty on Count 2

7. The trial judge was clearly impressed by S as a witness.  Generally, he accepted her evidence beyond reasonable doubt. 

8. The appellant did not give evidence.  He had no history of criminal offending.  The judge approached deliberating upon the verdicts on each count on the assumption that the appellant was a person of good character. 

9. In returning the verdict of not guilty on Count 1 the judge was at pains to explain that this did not imply any misgivings about the honesty and reliability of S.  Further, he explained that the verdict of not guilty on Count 1 did not help him in determining the question of her credibility and reliability in relation to Count 2. 

10. In giving evidence in relation to Count 2 S described the incident in the following terms as set out in the trial judge’s reasons:[1]

    Um so then he did the same pushing up thing um and so then he like grabbed my hand and he um, very, he didn’t really push it down on his um er penis but he very lightly like, he wanted, I guess he was testing to see if I noticed.

    She continued:

    … I looked down at where my hand was and then I looked up and I don’t really remember if I took my hand away or not.  I think, I think he let go which is when I kinda just like my put my hand back in my lap …….um but I thought I was kinda frozen and he kinda, I think he smiled at me a bit, he was, like, he was trying to make it look like nothing really happened.  So we finished the game and so then I won, and well you can’t really win that game, um so then I kinda stuck with my dad for most of the rest of the night and I was quite tired as well because it was from 6.00 to 8.00.

    [1]     R v Lloyd [2023] SADC 2 at [37]-[38].

11. A critical aspect of the evidence in relation to Count 2 from the appellant’s perspective was CCTV footage for a period of three minutes and 49 seconds[2] which depicts the appellant and S playing the Deal or No Deal machine at the time Count 2 was alleged to have been committed.  Before the trial judge, defence counsel submitted that the CCTV footage did not show the appellant moving S’s hand onto his penis.  The judge accepted this submission.  However, he found that the particulars of the offending alleged could easily have occurred with the appellant’s left hand moving S’s left hand when the view of the activity afforded by the CCTV vision was obscured by their bodies.  Accordingly, he found that the fact no movement of S’s hand onto the appellant’s penis could be seen on the CCTV footage did not cause him to doubt the evidence of S concerning the facts of the charge. 

    [2]     From 20.53.19 to 20.57.08.

12. The judge held that there was nothing unlikely about the scenario described by S and the absence of any vision on the CCTV footage inculpating the appellant did not cause him to entertain any doubt about S’s reliability and honesty in describing the incident alleged in Count 2.  He found that unlike Count 1, the movement that was alleged in Count 2 could not have been accidental or unintentional.  The complainant either remembered it happening or concocted the allegation.  The judge excluded the latter as a reasonable possibility. The judge found the offence had occurred because he accepted S’s evidence beyond reasonable doubt.

    Was the verdict unreasonable or could it not be supported having regard to the evidence?

13. Central to this ground is an attack on the evidence of S.  The first foundation for this submission is the proposition that the CCTV evidence is inconsistent with S’s evidence that she turned her head and looked down to see her hand having been placed on the appellant’s groin.  On the hearing of the appeal the Court viewed the relevant excerpt of the CCTV footage for the period in which it was alleged the appellant had committed the actus reus of the charge on Count 2. 

14. At trial it was not part of the prosecution case that the CCTV footage depicted the actus reus of the offence occurring.  Rather, it was the appellant’s contention that the CCTV footage was inconsistent with S’s account of the facts alleged to prove the offence because it did not depict her looking to her left to see the appellant’s hand holding her left hand on his penis through his jeans, as she had claimed in her evidence.  It was the appellant’s case that the probative weight of the CCTV footage was such that the judge should have found that was reasonably possible in relation to Count 2.   In our view there are two answers to this submission. 

15. First, having viewed the relevant CCTV footage, it is not sufficiently clear that it contradicts S’s evidence that she looked down and to her left when she felt her hand on the appellant’s groin.  In our view the CCTV footage is entirely equivocal on this factual question.  We cannot be satisfied that the judge should have found that her evidence was inconsistent with the objective evidence of the CCTV footage.  The angle from which the footage was taken, the distance over which the footage was taken and the quality of the footage’s resolution is such that we cannot accept the proposition that there is an inconsistency between S’s evidence and the evidence of the CCTV.  The footage does not contradict S’s evidence that while she was sitting on the appellant’s leg playing the game she looked down and to her left to see the appellant placing her hand on his penis. 

16. Second, in any event, S agreed that she turned her head to look down in order to observe the appellant holding her hand on his groin.[3]  It was suggested to her by defence counsel that she turned her head “a bit” in addition to looking down. It was contended that her acquiescence in this proposition established an inconsistency between her evidence and a statement she had given during the course of a police interview.  This single “inconsistency” did not go to the crux of her testimony of the actus reus. It was evidence of a related but peripheral occurrence given by an 11-year old girl some fifteen months after the relevant events.  In our view this was not a matter of sufficient weight that it ought to have caused the trial judge to form a reasonable doubt regarding the reliability of S’s account of the critical events constituting the actus reus of the charge on Count 2. 

    [3]     T27-28, 33-34.

17. There is no reason to consider that the “inconsistency” must have caused the judge, as the trier of fact, to entertain a reasonable doubt as to her reliability in relation to the facts constituting the actus reus.    

18. The appellant submits that given the judge had a reasonable doubt about the reliability of S’s evidence concerning the commission of the actus reus for Count 1, despite him stating to the contrary in his reasons for verdict, that doubt was relevant to an assessment of the accuracy of S’s evidence concerning Count 2.  The appellant submits that given the similarity of the circumstances in which the actus reus for each count was alleged to have been committed, the judge’s doubt about the accuracy of S’s evidence concerning the actus reus for Count 1 diminished the likelihood that her evidence about the commission of the actus reus for Count 2 was accurate and reliable.  Accordingly, the judge should have had a reasonable doubt in relation to the offence alleged on Count 2. 

19. In considering this submission it is necessary to consider part of the judge’s reasons for his verdict of not guilty on Count 1.  His Honour said:[4]

    The manner in which the complainant dealt with this issue [Count 1] confirms my impression that she was doing her best to be honest and accurate.  Certainly, she was not giving her evidence in an excessive or exaggerated manner, and I accept her evidence on this topic beyond a reasonable doubt.

    Because the evidence suggests that the defendant was in the process of the act of lifting the complainant on to his lap, an entirely innocent act (unless it carried with it a sexually inappropriate intention which cannot be proved), then I am not satisfied either that the actus reus occurred or, if it did occur, that it was other than accidental and thus not accompanied by any mens rea. This is also because the complainant appears only to become aware of it through being told by the defendant.

    For both reasons I cannot be satisfied beyond reasonable doubt that Count 1 is made out and I return a verdict of not guilty. The verdict of not guilty does not imply that I have any misgivings about the honesty and reliability of the complainant and thus it does not help me in determining the question of her credibility and/or reliability in relation to Count 2.

    [4]     R v Lloyd [2023] SADC 2 at [33]-[35]

20. At issue is the proposition that as the judge could not be satisfied beyond reasonable doubt that the actus reus of Count 1 occurred, which necessarily turned on his Honour entertaining a reasonable doubt about the reliability of S’s evidence on this count, the close relationship between the two counts should have caused him to entertain a reasonable doubt about the reliability of her evidence on Count 2. 

21. We do not accept that the judge ought to have had a doubt about S’s evidence on Count 2 because he was not satisfied beyond reasonable doubt in relation to Count 1 that the actus reus occurred.  It was open to the judge to accept, as he did, S’s evidence as honest and reliable in relation to Count 2. 

22. Count 2 was a separate and discrete incident.  It was qualitatively different from the allegation in Count 1.  Unlike Count 1 there was no possibility that what S alleged on Count 2 could have occurred accidentally.  It either occurred or S had concocted the allegation.  As the judge explained, he was satisfied beyond reasonable doubt that she was telling the truth.  This was the basis for his satisfaction beyond reasonable doubt that the appellant had committed the offence charged on Count 2.[5]

    [5]     R v Lloyd [2023] SADC 2 at [44]-[45].

23. Like the trial judge, we do not consider that the commission of the offence in the circumstances in which it was alleged to have been committed was inherently unlikely.  While it can be seen from the CCTV footage that there were other people milling about in the game room, they are to the rear of where the appellant and S are playing the game.  The appellant’s body would have obscured the view of everyone in the room to the rear of where he and S were playing the game so as effectively to conceal the placement of her hand on his penis.  This involved a small bodily movement of the hand which lasted only an imprecise but short time.  To that extent the offending was surreptitious rather than brazen. 

24. For the sake of completeness, we should also address briefly a submission put by defence counsel concerning evidence that after the occasion of the alleged offending S and her mother had viewed a film, Moxie.  The film concerned a group of high school girls standing up to boys who had sexually harassed or assaulted them.  Defence counsel submitted it was a reasonable possibility that what S said in the interview had been unconsciously contaminated by watching the film.  We do not accept this submission.  The evidence of S and her mother does not establish that S saw the film before she had reported the allegations to her parents and went to the police.  

25. The appellant sought to rely upon a passage from the reasons in Pell v The Queen[6] where the Court said:[7]

    Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the appellant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.

    [6] [2020] HCA 12, (2020) 268 CLR 123.

    [7]     Pell v The Queen [2020] HCA 12 at [119], (2020) 268 CLR 123, 164-165.

26. The High Court’s analysis does not assist the appellant in this case.  While the High Court proceeded on the assumption that the jury assessed the complainant’s evidence as thoroughly credible and reliable, the issue the High Court identified was whether notwithstanding that assumption the compounding improbabilities caused by the unchallenged opportunity evidence required the jury, acting rationally, to have entertained a doubt as to guilt.  Unlike the case in Pell, in this matter, for the reasons we have explained, there are not the compounding improbabilities from unchallenged evidence which should have caused the judge to have entertained a doubt as to the appellant’s guilt. 

27. The question for this Court is whether it was open to the trial judge to be satisfied of guilt beyond reasonable doubt on Count 2, which is to say whether he must, as distinct from might, have entertained a doubt about the appellant’s guilt.[8] 

    [8]     Libke v R [2007] HCA 30 at [113], (2007) 235 ALR 517, 546 per Hayne J, Gleeson CJ and Heydon J agreeing; approved in Pell v The Queen [2020] HCA 12 at [44]-[45], (2020) 268 CLR 123, 147.

28. Considering the evidence as a whole does not satisfy us that the verdict of guilty on Count 2 is either unreasonable or cannot be supported having regard to the evidence.  The evidence of the CCTV footage of the movement of S’s head and her failure to exhibit any sign of surprise or distress did not require the conclusion that the trial judge should necessarily have entertained a reasonable doubt about the appellant’s guilt on Count 2.  In the end the evidence of the CCTV footage was entirely equivocal. There was no basis for the judge to have entertained a reasonable doubt on the evidence that the appellant had committed the offence charged on Count 2 notwithstanding his verdict of not guilty on Count 1. The judge was persuaded by the evidence of S that the commission of the offence charged on Count 2 was proved beyond reasonable doubt.  There is no basis to conclude that the judge must have entertained a reasonable doubt about S’s evidence and the appellant’s guilt.  We would dismiss Ground 1. 

    Inadequate reasons? 

29. Section 7(4) of the Juries Act 1927 (SA) provides:

    If a criminal trial proceeds without a jury under this section, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.

30. In R v Keyte[9] Doyle CJ, with whom Williams and Wicks JJ agreed, held that s 7(4) impliedly requires a judge to give reasons for a verdict following upon the trial of a charge by judge alone.[10]  The failure to give adequate reasons is an error of law.[11]  Unlike similar provisions in other jurisdictions, s 7 does not prescribe requirements for the contents of the reasons for judgment.[12] 

    [9] [2000] SASC 382, (2000) 78 SASR 68.

    [10]   R v Keyte [2000] SASC 382 at [51], (2000) 78 SASR 68, 79.

    [11]   Fleming v The Queen [1998] HCA 68 at [22], (1998) 197 CLR 250, 260; Douglass v The Queen [2012] HCA 34 at [14], (2012) 86 ALJR 1086, 1090; R v Keyte [2000] SASC 382 at [51], (2000) 78 SASR 68, 79.

    [12]   Douglass v The Queen [2012] HCA 34 at [8], (2012) 86 ALJR 1086, 1088-1089.

31. The principles applicable to the statutory obligation imposed on a judge to provide reasons are well settled. 

1. In DL v The Queen[13] Kiefel CJ, Keane and Edelman JJ, in considering an appeal from a criminal conviction, said that:[14] 

   The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

   … Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

   “Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”

   [Citations omitted].

   [13] [2018] HCA 26, (2018) 266 CLR 1.

   [14]   DL v The Queen [2018] HCA 26 at [32]-[33], (2018) 266 CLR 1, 12-13.

2. In Whisprun Pty Ltd v Dixon[15] Gleeson CJ, McHugh and Gummow JJ said, albeit in the context of a civil trial, that a judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue.  Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.[16] 

   [15] [2003] HCA 48, (2003) 200 ALR 447.

   [16]   Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62], (2003) 200 ALR 447, 464.

3. The appellant contends that the judge’s reasons were inadequate because he failed to deal at all with the important submissions by defence counsel, first, that what could be seen on the video when the offence was allegedly committed was inconsistent with S’s evidence that she turned her head and looked down to see her hand was on top of the appellant’s penis; second, that S’s evidence of seeing the appellant place her hand on his penis could not have occurred without S turning her head more than she admitted; and third, following this she did not show any surprise or distress, but instead continued playing the game enthusiastically until its completion. 

4. The three topics forming the basis of this submission were not compelling propositions that the judge was required to address. 

5. First, contrary to the defence case at trial, the evidence of the CCTV footage does not disclose any “inconsistency” between what was depicted in the footage and S’s evidence that she turned her head and looked down to see her hand on the appellant’s penis.  For the reasons explained earlier, the factual foundation for this submission is absent.  The CCTV footage does not show that S did not turn her head to her left and look down.

6. Whether S turned her head to her left and looked down was not a factual issue bearing upon the elements of the offence in Count 2.  Whether S did or did not do so was an issue which only went to her credit and reliability.  That is why the evidence is said to demonstrate an “inconsistency”.  It was not an issue central to the elements of the offence charged on Count 2.  It only received a fleeting reference in defence counsel’s closing address.[17]   What was critical was whether the appellant placed her hand on his penis.  The judge found he did.  He explained that he did so on the basis that he accepted her evidence on this issue beyond reasonable doubt.  Those reasons, while succinct, are adequate to inform the appellant of the basis of the guilty verdict, and permit this Court to perform its appellate function. 

   [17]   T 134.20-28.

7. Second, for similar reasons, the appellant’s submission that S could not have seen him take her hand and place it on his penis without turning her head to the left and looking downwards, to an extent she did not admit, was not an issue that the judge was required to address. The turning of S’s head raises two issues: inconsistency and the extent of the turning of the head to enable S to see the appellant taking her hand and placing it on his penis. Both these issues depended on the capacity of the evidence of the CCTV footage to contradict S’s evidence. But the CCTV footage was equivocal. The extent to which she did or did not turn her head was not proved from viewing that evidence. The resolution of the issue of the turning of S’s head was not essential to the verdict of guilty on Count 2. It was not necessary for the judge to address it because it was a submission lacking a foundation. The CCTV footage proved nothing. There was nothing inadequate in the judge’s reasons in failing to expressly address a submission that S did not turn her head to the extent necessary to see what she said she saw because it depended on the absence of evidence of her turning her head to that extent. But the underlying premise of the submission is absent because of the equivocal nature of the CCTV footage.

8. Third, the judge’s failure to address the absence of surprise or distress on the part of S following the alleged indecent assault did not constitute a failure to provide adequate reasons.  Her evidence was not that she reacted to what happened with surprise or distress. Rather, she said that after the appellant released her hand she continued to play the game. 

9. The defence submission at trial was that her failure to react in either way should have caused the judge to entertain a reasonable doubt that the appellant had committed the offence alleged in Count 2.  We do not accept this submission.  It amounts to a suggestion that S’s behaviour was so implausible the judge should have had a reasonable doubt concerning her evidence of the charged offence on Count 2.  This was not a proposition put to S in cross-examination.  It is not implausible that she did not react demonstratively in the circumstances alleged.  Her failure to react with surprise or distress was consistent with the account she gave in the police interview of feeling confused and unsure how to react in circumstances where she was focussed on playing the game and the touching alleged was momentary.  In her police interview she said:[18]

   [18]   Exhibit P2 (Record of Interview) transcript marked as MFI P1.

   QSo tell me more about the part when he put your hand on his penis.

   ASo um it was kind of, it wasn’t I would say quick but it was a very soft er thing and then he took it up and then he let go and then I bring it back um so I wouldn’t describe it as quick or slow, I would say it was um, um, so when he was pushing me up he then, he pushed me up, I think this is how it went it’s kind of a blur. 

   QMm hmm.

   AHe pushed me up, he grabbed my hand and then he put it like on his penis um and so then um we both looked down and then we both looked up, um well I’m not sure if he looked down, but I looked down.

   QMm hmm.

   ATo see where my hand was like to, cause I guess I noticed it was kind of weird where my hand was and it was like kind of squishy.

   QMm hmm.

   AUm and so then I was kinda like playing the game and then I felt it and I’m like, and then he let go and then I put my hand back. 

10. In our view the trial judge’s failure to address these submissions did not render his reasons for decision inadequate to justify the verdict on Count 2.  What was required was that the judge explain his conclusion on significant factual or evidential disputes that were a necessary step to his verdict.  The adequacy of reasons depended upon an assessment of the issues in the case, including the extent to which they were relied upon by defence counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[19]   It was not necessary for him to undertake a minute explanation of every step in his reasoning process.  The appellant’s submissions go no further than a complaint that the judge failed to address a peripheral dispute.  None of these matters were necessary steps to the verdict of guilty on Count 2. 

    [19]   DL v The Queen [2018] HCA 26 at [33], (2018) 266 CLR 1, 12-13.

11. Whether viewed in isolation or considered as a whole, the particulars of the appellant’s ground of appeal complaining of the inadequacy of the judge’s reasons for the verdict of guilty on Count 2 must be rejected.  We dismiss Ground 2. 

    The proviso

12. The parties put submissions in relation to the application of the proviso in the event that the court found that the judge’s reasons were inadequate. In the circumstances it is unnecessary to address the application of the proviso.

    Conclusion

13. We grant permission to appeal but dismiss the appeal.