R v AMN

[2005] NSWCCA 124

CITATION:	R v AMN [2005] NSWCCA 124
HEARING DATE(S):	5 April 2005
JUDGMENT DATE:	5 April 2005
JUDGMENT OF:	Spigelman CJ at 59; Studdert J at 1; Howie J at 61
DECISION:	Appeal dismissed.

LEGISLATION CITED:	Crimes Act, s 61M Evidence (Children) Act, s 9
CASES CITED:	M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Papakosmos v The Queen (1999) 196 CLR 297
PARTIES:	Regina v AMN
FILE NUMBER(S):	CCA 2004/3300
COUNSEL:	E. Wilkins (Crown) J. Young (Appellant)
SOLICITORS:	S. Kavanagh (Crown) Staunton & Thompson Solicitors (Appellant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0084
LOWER COURT JUDICIAL OFFICER:	Black DCJ

2004/3300

SPIGELMAN CJ
STUDDERT J
HOWIE J

Tuesday 5 April 2005

REGINA v A M N

Judgment

1 STUDDERT J: The appellant, AMN, is appealing against his conviction on a count of assault with act of indecency on a child under the age of ten years. The offence charged is an offence under s 61M(2) of the Crimes Act, and the victim of the offence is the stepdaughter of the appellant. This child was born on 16 February 1993.

2 The appellant stood trial charged with five counts of assaults with acts of indecency on his stepdaughter but he was acquitted on four of those counts. The offences charged on those four counts upon which the jury found the appellant not guilty concerned offences allegedly committed between 25 May and 11 June 2001. The fifth count on which the jury found the appellant guilty was allegedly committed between 1 August and 31 August 2001.

3 The complainant’s mother and the complainant’s father separated in 1995. Later, the complainant’s mother formed an association with the appellant and they married in March 1997. There was a child of that union born on 5 June 1998. Prior to August 2001 the family resided in a unit at Caringbah but then moved into a house at Kurnell. The offences charged in the first four counts of the indictment were allegedly committed at a time when the complainant and her stepsister slept in double bunks. Once the family moved to Kurnell the complainant slept in a white single bed. These sleeping arrangements have some significance when considering grounds 5 and 13 of the grounds of appeal.

4 No challenge is made to the sentence imposed, which sentence has now been served. The appeal is against conviction only.

Review of the evidence

5 The complainant was eight years old as at August 2001. No complaint about what her stepfather had done was made by the complainant until she spoke to her mother on 2 July 2002. Thereafter the complainant was interviewed by police in that month and again in November 2002. The complainant’s evidence in chief at trial was given by videotaped recording of the police interview of July 2002, pursuant to s 9 of the Evidence (Children) Act, 1997. The complainant was asked some further questions in her evidence in chief before the jury and was then cross examined.

6 The complainant’s account of the five indecent assaults which she asserted had taken place described misconduct of a like type on each of the five occasions. According to the complainant, on each occasion the appellant came into the room where the complainant was in bed and he pulled down her pants and rubbed something on her “minnie” (referring to the vaginal area).

7 The complainant first told her mother about what had happened after her mother and the appellant had quarrelled on an occasion in July 2002. When the complainant’s mother and the appellant spoke about the alleged misconduct, the appellant denied it.

8 He gave evidence at trial denying the misconduct alleged. He said that the complainant had a bedwetting problem, and he would often go into her room at night, remove her wet clothing, roll her over and put a dry towel under her.

9 The appellant called three witnesses who gave evidence of having known the appellant for a number of years and that the matters charged were inconsistent with the appellant as they knew him.

10 Against this short review of the evidence, I turn to consider the various grounds of appeal.

11 There are altogether thirteen grounds of appeal. It is convenient to address grounds 1 and 2 together.

Ground 1 The trial judge erred in failing to properly direct the jury in relation to the unsatisfactory quality of the evidence of complaint.

Ground 2 The trial judge erred in his directions to the jury in respect of the evidence of complaints.

12 Rule 4 of the Criminal Appeal Rules applies in respect of each of these two grounds. There was a delay of the order of eleven months between the commission of the offence in respect of which the jury returned the guilty verdict and the time that the complainant first complained to her mother. However, no objection was taken at the trial to the introduction of the evidence of complaint on the basis that the evidence of complaint was not fresh. Nor do I understand in the grounds here formulated that the appellant presently complains that the evidence of complaint ought to have been excluded. Rather, the grounds address what it is contended were defects in the instruction given to the jury.

13 The trial judge gave the jury the following instruction (SU 11-12):

“Now the next matter that I have to come to with you is the situation which can conveniently be described as ‘delayed complaint’. Now you have heard evidence that in about July of 2002 [G] complained to her mother, now it is argued or one of the arguments on behalf of the accused, is that delay by [G] in making her complaint to her mother and that is a person who she might reasonably been expected to complain, is inconsistent with the conduct of a truthful person who has been sexually assaulted and therefore it is argued that you should regard [G’s] evidence, at least as unreliable. Now the law about a complaint is this.
It is of course something that you should consider but I must warn you that delay in making a complaint does not necessarily indicate that the evidence of the complainant is false or unreliable. It may indicate fabrication on the part of the complainant, that is [G], but does not necessarily do so, there may be good reasons why a person who has been sexually assaulted hesitates in making a complaint and amongst those, the crown put forward her age, the fact that she says she was frightened and the general circumstances in that household which the crown describes as dysfunctional. It is up to you what you make of all that.”

14 After giving the above directions, the trial judge reminded the jury of what was put in the appellant’s defence and the sort of disadvantages that the defence laboured under by reason of the effects of delay (SU 12-14):

“The defence you will recollect say, well this was a little girl who people just did not believe about a variety of things for a number of reasons and she thought according to the defence that this would be something that really would make people sit up, take notice and hopefully believe her. Again that is a matter for you to assess and weigh up applying your own commonsense and general experience. But arising from the fact that a complaint is not made at the time, there are certain specific matters that I have to tell you about.
It is most important that you appreciate fully the effects of delay on the ability of the accused to defend himself by testing the prosecution evidence, or adducing evidence in his own case to establish a reasonable doubt about his guilt and in this regard I refer to the following specific difficulties which are suggested that the accused has to face and could have had the advantage of praying in aid, had the complaint been made at the time.
First of all there is the delay in the matter coming to the attention of the authorities and to him, so that for instance when it is said, this was the dates in the indictment are given in June, the dates are 25 May to 11 June 2001 and he does not become aware of those dates until a year or more later, at least a year or more later. Now the example Miss Fullerton gave you was, for all he knew if the allegation had been raised, say at the end of June 2001 he might have been able to say, well this cannot have happened because, either because somebody was staying or somebody was not there or there might have been some specific reason available to him illustrating that the improbability or the impossibility of such an event happening. It may be that there would have been more precise recollection as to who or was sleeping together at that time and at what times. You have heard, for instance that sometimes [D], the youngest child was there and sometimes she was not. So that is the sort of thing that if an allegation is made and I just illustrate it perhaps this way to you. Say suddenly somebody today says to you, well at a quarter to three yesterday afternoon I saw you shop lifting, you say, well that is ridiculous, I was on a jury in the Downing Centre and I have got eleven other people at least who I can refer you to, to support that and the advantage of a contemporaneous accusation you can immediately turn round and say, well I can meet that, that is not a problem for me. That is an illustration, that is something that you have to bear in mind, that can arise, it is potentially being deprived of important evidence at or near the time...”

15 No complaint was made about any of the above directions at the trial.

16 It is to be observed that the appellant was represented at the trial by most experienced senior counsel. There was good reason for the appellant not to object to the evidence of complaint. Counsel cross examined the complainant about the circumstances in which the complainant first spoke to her mother about what the appellant had done. The day before the complaint was made the complainant was asked whether she had bullied the appellant’s niece at school. This the complainant had denied, but, as the Crown has submitted, the defence case was that the complainant had been put up to making the complaint and that the complainant made it as a vehicle for obtaining the support of her mother.

17 I do not consider that there was any miscarriage of justice by reason of the introduction of the evidence of complaint made some eleven months after the commission of the alleged offence. The evidence was introduced without objection and involved a tactical decision by counsel appearing for the appellant at his trial.

18 In this context the Crown has appropriately referred to what McHugh J said in Papakosmos v The Queen (1999) 196 CLR 297 at 319:

“There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted. Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant.”

19 Not only was no complaint made at trial as to the directions which the trial judge gave to the jury on the issue of complaint, but the instruction given was immediately followed by a caution concerning the assessment of the evidence of the complainant (SU 14-15):

“…as time goes by, memory becomes less reliable and it becomes less reliable you may think for two main potential reasons. First of all details can slip away but secondly they may get embroiled, so you just do not know which way that can go and then a significant matter in this case is of course you will bear in mind the age of [G], eight at the time, she is ten now, she would have been nine last year when she made the video that you have seen and you will take that into account as to the reliability of age. So because of those difficulties additional care and caution is required in the way you approach her evidence and it is a matter for you to consider those problems carefully and then you decide what weight you give to [G’s] evidence in the case. But in this particular case because of her age, I have to go further and say to you, that because of the delay and because of her young age, it will be dangerous to convict on the evidence of [G], unless you scrutinising the evidence with great care and considering the circumstances relevant to its evaluation and paying heed to that warning I have given you, were satisfied of its truth and accuracy and I can perhaps do no better than to quote to you a passage from one of the Judges of the High Court in considering the problems where there has been a delay and where you have got a child complaining. He said this:
‘The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to remember is well documented. The longer the period between an event and its recall, the greater the margin for error. Interference with a person’s ability to remember may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly sceptical [sic] to error and is also subject to the possibility that it may not even be genuine. No matter how honest the recollection of the complaint in this case the period of delay between her formal complaint and the occurrence of the alleged events can raise a significant question as to whether her recollection can be acted upon safely.’”

20 In my opinion, grounds 1 and 2 have not been made good, and, indeed, I would refuse leave to the appellant to rely upon them.

Ground 3 The trial judge erred in failing to properly direct the jury in relation to the lack of independent evidence to corroborate the complainant’s evidence of the alleged indecent assaults

21 Counsel has today informed the Court that this ground is not being pursued. I would add, however, that his Honour did give adequate caution to the jury in a passage of the summing (SU 15-16):

“Now there is yet another piece of legislation that I have to tell you and it is because of the age of [G], I also have expressly to tell you that her evidence may be unreliable and the reasons are just those reasons that I have been referring to, it is because she is so young and because of the delay and the problems that may give rise to and there in the light of that there is a need for caution in determining whether the [sic] accept her evidence and in deciding what weight that should be given to it.”

22 In my opinion, ample warning was given to the jury as to how it should approach the assessment of the complainant’s evidence.

23 Grounds 4, 5 and 6 can conveniently be dealt with together. They are expressed in these terms in the notice of appeal:

Ground 4 The trial judge erred in permitting the prosecution to call relationship evidence

Ground 5 The trial judge erred in failing to direct the jury in respect of the relationship evidence prior to, during or immediately after the giving of such evidence

Ground 6 The trial judge erred in his directions to the jury in respect of the relationship evidence and in particular, failed to explain to the jury the use they are entitled to make of such evidence

24 Evidence was given by the complainant’s mother of an incident that occurred when the complainant was about five years of age. The complainant’s mother gave evidence that she saw the appellant sitting naked on the edge of the complainant’s bed and lying over the top of her. According to the complainant’s mother, she turned the light on in the room and asked the appellant what he was doing. He said he was trying to comfort the complainant who had been crying. The complainant’s mother did not accept that explanation.

25 Reference to this incident was contained in the complainant’s recorded interview with the police (Q 174-176). No objection was taken at the trial to the introduction of the evidence, and there was extensive evidence given by the complainant’s mother about the incident she described. The Crown submitted, and I accept, that no objection was taken to the evidence for tactical reasons. The defence relied upon the evidence as explaining why the complainant believed that the appellant had sexually interfered with her. It was put that the complainant’s mother repeatedly alleged sexual impropriety by the appellant. The transcript records that counsel in the course of final address said to the jury (T 44, 10 June 2003):

“The child, as I submit to you, came from an atmosphere of domestic strife where it would appear very little was done effectively to shield her from allegations when she was five of the very worst kind. None of us know whether that little kid was awake or asleep when her mother went off. None of us know what has seeped into her consciousness emerging out of that night, or the repeated allegations made over successive days. The accused has given sworn testimony that whenever there was a blue on this issue would come up again, where the mother would say and you were doing this and you were doing that…”

26 Counsel acknowledged at the trial that the evidence was relevant (as is recorded at T 50 of 10 June 2003):

“FULLERTON: Your Honour, if the jury were satisfied that the accused was indecently dealing with his daughter by leaning across her, that is evidence plainly capable of going to the question of relationship or guilty passion and, indeed, that’s why there was no objection.”

27 The trial judge gave the jury the following instruction about this evidence (SU 9-10):

“Well now this raises various matters for you to consider but my purpose of dealing with it at the moment, is to explain to you, how in law it would be open to you as the prosecution urge to use it adversely against the accused and it involves this. First of all you would have to be satisfied beyond reasonable doubt that it was indecent, improper behaviour by the accused towards [G] and if you were satisfied beyond reasonable doubt about that, then you would be entitled to take that into account in deciding whether he at all times treated [G] with appropriate consideration and behaviour. It is sometimes called ‘relationship evidence’, the purpose of giving it that name is it is capable of helping you decide what the real relationship between those two was. However, if you were not so satisfied that it was an indecent act, then you cannot use it against the accused and indeed, if you were in that frame of mind you may well decide that it is appropriate to use it in his favour. It is for you to decide what you make of the attitude of the mother, whether as she says, after three days she never thought of it or mentioned it again, it is, you may think a very serious allegation to make, the accused tells you that she permanently brought it up and referred to it in the course of any arguments. I will just leave that with you, to assist you in assessing what you make of the respective witnesses about that.”

28 In my opinion, the evidence as to what the complainant’s mother alleges she saw on the occasion in question was properly admitted and the instruction which the jury was given was instruction about which counsel at the trial made no application.

29 As to ground 5, counsel for the appellant at the trial did not ask for a ruling at the time that the evidence was introduced, but it seems to me that the jury was adequately instructed in a manner that enabled it to assess the competing submissions during the course of the summing up.

30 I would refuse leave to rely upon grounds 4, 5 and 6. The substance of none of these grounds has been established.

Ground 7: The trial judge erred in failing to properly direct the jury in relation to the unsatisfactory nature of the further complaints made by the complainant to police on 14 November 2002.

31 This is another ground to which r 4 of the Criminal Appeal Rules applies.

32 When the complainant was interviewed by the police in November 2002, the complainant told the police that the appellant rubbed something on her lips which was “cold” and which “tasted salty”. She said “It smelt fishy.” At the trial, the complainant was cross examined about not having mentioned this on the occasion of the earlier interview.

33 It was submitted that the evidence about rubbing this substance on the complainant’s lips should have been excluded because it was evidence of complaint which was not fresh evidence.

34 No objection was taken to the introduction of this evidence in the course of the trial.

35 The trial judge gave the jury instruction about this evidence at SU 10-11:

“Now the other particular area of evidence, that is other than the touching and rubbing of the vaginal area relied upon by the crown which has been introduced is [G’s] evidence about an occasion she cannot particularly specify but which she says occurred at Caringbah when she says the accused rubbed a substance on her lips, which she says tasted salty and smelt fishy. Now again my purpose in dealing with this, is to explain how as the crown urge, it would be open to you to use it adversely to the accused. First of all you have to be satisfied that it happened beyond reasonable doubt, now you will recollect that this came out in the course of the audio tape, not in connection with the original video interview. That it arose as far as the audio tape was concerned because [G] said it came to her while she was thinking about things and she told her mother who passed on that information. She says that she cannot be sure, except that it was at Caringbah which particular incident it related to. The crown alleged that that was semen, they call it ejaculate but you may think semen is what they are getting at, well that is a matter entirely for you members of the jury, there is no other evidence about it. If you were satisfied beyond reasonable doubt that it happened, if you were satisfied beyond reasonable doubt that it was semen, well then you would be able to use that in support of the allegation that the accused was behaving indecently in the ways, particularly alleged in the charges towards his step-daughter, because clearly if you were so satisfied that would not be appropriate behaviour by a step-father towards a step-daughter, or indeed by anybody towards a child. If you were not so satisfied then it would be totally wrong to use it in anyway adversely against the accused. If for instance you were not satisfied beyond reasonable doubt that it was semen it would be inappropriate to give it any further weight. If you were not satisfied beyond reasonable doubt that it happened, why then it may be that you would then say, well that supports my view of accepting what the accused and his witnesses said, it is up to you how you approach these things.”

36 No objection was taken to the above instruction and no further directions were sought.

37 To my mind, no miscarriage of justice in the introduction of the evidence or the instruction concerning it has been established, and I would refuse leave to rely upon ground 7.

Ground 8: The verdict of the jury in relation to count 5 in the indictment is unreasonable and cannot be supported having regard to the evidence the verdicts of not guilty in respect of counts 1, 2, 3 and 4.

Ground 13: The verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported, having regard to the evidence.

38 These two grounds can conveniently be dealt with together.

39 The ultimate issue to be determined when considering these two grounds is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: see M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606.

40 It does not necessarily follow that because the jury found the appellant not guilty on each of the counts 1, 2, 3 and 4 that it was unreasonable for the jury to have convicted the appellant on count 5. Indeed, it seems to me that there was good reason for the jury to distinguish count 5 from the four earlier counts, having regard to the time at which those earlier offences were alleged to have been committed and the circumstances in which they were allegedly committed.

41 There was evidence to establish that in the period from 25 May 2001 to 11 June 2001 the two children were sleeping on double bunks that had been purchased in December 2000. The complainant slept on the lower bunk. The evidence of the complainant’s mother was that she was five feet one to five feet two inches tall, that she could “probably just sit under it [referring to the upper bunk]” (T 17, 5 June 2003). The evidence was that the appellant was a tall man, whose height was “about six foot five, six foot seven” (T 17, 5 June 2003). According to the complainant, when the appellant committed the offences he put one knee on the bed, tucked one foot under him with his bottom sitting on his foot and with his other leg on the ground (T 16-17, complainant’s cross examination, 4 June 2003). That description of the appellant’s posture related to all four alleged incidents whilst the family was living at Caringbah. The jury could understandably have concluded that the offences could not have occurred whilst the complainant was sleeping in the bottom bunk at Caringbah.

42 Equally, however, it would not have been unreasonable for the jury to have concluded that the complainant was mistaken about the dates of those incidents at Caringbah. The complainant did tell the police to begin with that her stepsister was a baby in a cot when the first four offences were committed, and when this was the arrangement the complainant slept alone in a bed in another room. Hence the jury may not have rejected the complainant’s account of the earlier incidents but considered that she was mistaken about the date of their occurrence.

43 The jury was instructed that the Crown had to prove that the offences charged in counts 1, 2, 3 and 4 were committed in the time frame expressed in the indictment (SU 19-20):

“Well members of the jury, just so as to make it clear the point here is as I was telling you the defence case is that having regard to the evidence of these assaults being tied in with [D’s] birthday, that raises the issue about the bed fairly and squarely and therefore it would not really be appropriate, well I tell you it would not be appropriate to say oh well it happened some other time, because it is such a fundamental issue in the case, tied in as it is with date and circumstances, that it would be inappropriate for you to say well never mind that he did it some other time, some other place, because that would be a case that has not been canvassed before you. The allegation here as it happened just before [D’s] birthday in the circumstances alleged. If you were not satisfied beyond reasonable doubt about that then the verdict should be not guilty.”

44 Hence the jury was instructed it was not good enough for the Crown to prove that those earlier offences were committed; it must prove that they were committed in the time frame charged.

45 So it is that the finding of not guilty on counts 1, 2, 3 and 4 does not necessarily mean that the jury disbelieved the complainant when she asserted that there were four earlier indecent assaults.

46 The jury was instructed that it had to consider each charge separately (SU 7). The verdicts returned indicate that the jury did precisely that.

47 The trial judge instructed the jury in adequate terms as to the need for caution in evaluating the evidence of the complainant. When it came to considering the fifth count, the evidence was that by the time of the happening of the event last described by the complainant, the complainant was again sleeping in a single bed so that the space restrictions earlier operating no longer applied. It seems to me that it was open to the jury, after considering all the evidence in point, to be satisfied beyond reasonable doubt as to the guilt of the appellant on the fifth count.

48 Hence I conclude that these grounds fail.

Ground 9: The trial judge erred in failing to direct the jury to consider its verdict on each count separately and not to use the evidence in respect to one count as evidence in respect to other counts

49 It has been submitted that the trial judge should have cautioned the jury against using evidence in relation to one charge in proof of other charges. It was submitted that there was a need for a clear direction to guard against the risk of impermissible prejudice in this way. It is submitted that the judge failed to give the jury any direction about considering the charges separately, and that the jury may have relied upon the evidence in respect of any of the charges that the appellant was acquitted of to support the conviction on the fifth count.

50 I do not consider there is substance in this submission. I referred earlier to the fact that the jury was instructed to consider each count separately. The instruction was in these terms (SU 7):

“Now the next area that I come to are the specific offences alleged in the indictment and you have a copy of that. Now as you appreciate there are five separate charges in the indictment and each one of them has to be considered separately and a separate verdict in due course will be asked for in respect of each of these matters.”

51 That instruction was given in the context that the Crown had recently reviewed the evidence on the various counts. In my opinion, the instruction given was sufficient in the context, bearing in mind that the instruction was given just after the completion of the addresses.

52 No objection was taken to the above direction nor was the trial judge asked to add to it in any way. Rule 4 again applies. In my opinion, the instruction given was adequate in the circumstances of this case and there is no substance in this ground. Again, I would refuse leave to rely upon this ground.

Ground 10: The trial judge erred in permitting the prosecution to introduce evidence of the appellant masturbating.

Ground 11: The trial judge erred in permitting the prosecution to introduce evidence in respect to the appellant’s use of pornographic videos.

53 It is to be observed that no objection was taken to the evidence in relation to these grounds at the time of the introduction of the evidence at the trial.

54 The complainant gave evidence that she heard a clicking noise at the time of commission of the offences and that evidence was consistent with evidence given by the complainant’s mother that the complainant made such a noise when he masturbated. It seems to me that the evidence was relevant and admissible.

55 Evidence was introduced as to the appellant watching pornographic videos. This was relevant to the first count, because the complainant gave evidence that immediately after the offence the subject of the first count she went into the lounge room and saw a pornographic video being played on the television. Counsel for the defence invited the jury to consider that the complainant was exposed to sexual matters at home and it was because of this she was able to describe sexual incidents such as those the subject of the charges. Again, it seems to me, that the evidence concerning the pornographic videos was relevant and there was no miscarriage of justice associated with the introduction of the evidence to which these grounds relate.

56 Rule 4 applies to grounds 10 and 11, and I would refuse the appellant leave to rely upon either of these grounds.

Ground 12: The trial judge erred in failing to give any directions to the jury in respect to the relationship evidence introduced by the prosecution between Dayna and the appellant.

57 This ground has not been argued in Court, and it does not seem that there was any evidence introduced at the trial concerning this subject mater. Therefore, there is no substance in this ground.

58 For the above reasons, I am of the opinion that this appeal should be dismissed.

59 SPIGELMAN CJ: I agree.

60 HOWIE J: I also agree.

61 SPIGELMAN CJ: The orders of the Court will be as proposed by Mr Justice Studdert.

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