R v Cox
[2000] VSCA 27
•16 March 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 157 of 1999
| THE QUEEN |
| v |
| MARK ANDREW COX |
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JUDGES: | PHILLIPS, C.J., BROOKING, J.A. and HAMPEL, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 February 2000 | |
DATE OF JUDGMENT: | 16 March 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 27 | |
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CRIMINAL LAW – Appeal against sentence for causing serious injury recklessly – Applicant had pleaded guilty, no prior convictions for violence, evidence of non-violent disposition – Very serious injuries inflicted to prone and non-resistant victim – Sentence of 30 months’ imprisonment with a non-parole period of 15 months upheld – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr T. Gyorffy | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr D.M. Salek, Q.C. Mr G. Hughan | Malasecca Zayler |
PHILLIPS, C.J.:
The applicant, who is aged 29, pleaded guilty in the County Court at Melbourne on 8 June last to a count of causing serious injury recklessly which count was the second on the presentment preferred against him. He had earlier pleaded “not guilty” to a two count presentment but the learned presiding judge gave the Crown leave to delete the first count which alleged an offence of intentionally causing serious injury. The offence admitted by the applicant occurred at Melbourne on the first day of March, 1997 and carried a maximum penalty of ten years’ imprisonment. The applicant admitted three prior convictions incurred between 1992 and February, 1996 and for which he was variously fined and granted an adjournment. None of these was for an offence which involved the administration of violence to a person.
Although a plea of guilty was made, proceedings before the judge took up several days and they included the taking of viva voce evidence from a Crown witness and the calling of a number of witnesses who gave evidence on behalf of the applicant. Various exhibits, including references for the applicant, were tendered and both counsel made considerable submissions. As to the facts of the offence, some were not in dispute and others were. Those not in dispute may be summarised as follows.
The applicant and the victim were both at the Exford Hotel, which is situated in Little Bourke Street, in the early hours of 1 March. They had each been there for some time and had been consuming alcohol. The applicant later told police that as at 3:00 a.m. when he left the hotel he had consumed some eight pots of beer plus a stubby over about five hours. He said that at that time he did not consider himself intoxicated, but was “slightly drunk”. The Crown accepted that when the victim left the hotel at the same time he was drunk.
Prior to their departure, and not long after midnight, a fight occurred in the hotel in which a female bar attendant was struck in the mouth by a male. This incident upset the victim who was clearly affected by alcohol at this time. Just prior to leaving the hotel the victim became verbally aggressive to the applicant and threatened him that he and others would come and fix him up. The victim had to be physically restrained by a witness named Bertram from going over to the applicant on a number of occasions immediately after they left the hotel. This occurred over some half an hour. The victim wrongly believed that it was the applicant who had struck the bar attendant.
It was common ground that during the half hour the applicant did not respond with any sort of aggression to the victim. Eventually, the victim, Bertram and another witness called Mahamud managed to persuade the victim to go with them and the three walked off down Russell Street in a southerly direction. The applicant had still not behaved aggressively to the victim but as the group proceeded down the street he approached the victim from behind. There was disputation, to which I shall presently return, as to what first occurred when the applicant caught up with the victim, but it was common ground that a blow delivered by the applicant felled the victim to the ground. Thereafter, while the victim was prone on the ground, the applicant administered several blows to his face.
The blows administered by the applicant caused the injuries and results described in a medical report of 30 June, 1997 tendered in evidence.
“On admission to St Vincent’s Hospital he was found to have multiple facial fractures which included bilateral fractures on the zygoma, bilateral fractures of the mandible, a fracture of the naso-ethmoidal bone of the skull and a comminuted Le Forte III fracture of the maxilla. It is understood that he was unconscious for an unknown period of time after the accident and a CT scan of the brain on admission showed a fracture at the base of the skull in the temporal bone and an intracranial haemorrhage about 2cm in diameter adjacent to the fracture. He was operated on on two occasions on 3/3/97 and 7/3/97 where open reduction and internal fixation of the fractures of the mandible and maxilla were performed. He required intubation prior to and after surgery and was treated in the intensive care ward.
Neuropsychological assessment prior to his discharge showed that his cognitive performance fell well below the average range. It was considered that his abnormalities were consistent with a moderately severe traumatic brain injury which was consistent with the findings on the CT brain scan and with extended period of post-traumatic amnesia.”
The learned sentencing judge found that the victim had suffered “enormously” as a result of the applicant’s conduct. This finding has not been challenged. Nor has her Honour’s acceptance of the correctness of part of a victim impact statement made by the victim in the following terms.
“My whole face was smashed with most of my facial structure and bones turned to pulp. As a result the bone structure around the eyes and the muscular support of the eyeballs were seriously damaged. My nose was smashed so badly I couldn’t breath through it; my jaw was broken in three places and I had bruising at the base of my skull and bleeding into the left temporal lobe of the brain. I regained consciousness about two weeks after the assault in a totally confused and panic stricken state. I was unable to open my eyes because my eyelids were stitched together, my jaws were bandaged shut and I couldn’t breathe naturally because I was on a respirator. My family kept 24 hour vigil by my bed to allay my fears and try and calm me down. I lost about three stone and contracted an unknown infection which made my temperature soar, so it was necessary for me to have a variety of broad spectrum antibiotics which gave me severe diarrhoea. I was painfully aware that I could not control my normal bodily functions such as urinating and defecating and this loss of control humiliated and frustrated me in front of my friends. Also, I was continually drooling spit and blood from my mouth and coughing up large clots of blood and mucus from my lungs as a result of being on the respirator.
I also have very clear memories of my periods in hospitalisation, for in the 18 months following the assault I had a total of five operations and continuous consultations with specialists from various medical disciplines to restore me to my present level of physical capacity. My whole life seems to revolve around my injuries – adjusting to them and seeking treatment for them. The first two operations to reconstruct what was left of my jaw, wire my teeth and insert 14 titanium plates to hang the shattered facial bones to my forehead were performed early in March 1997, five days apart. The third operation to straighten my nose and build up my palate and front gums from a bone graft off my hip was performed in November 1997. The two eye operations were done in March and July 1998. I was finally able to return to work in August 1998.
At present the protruding plates in my face are becoming more uncomfortable as the bones of my face heal, particularly when I sleep on them. I am unable to chew tough or crunchy food due to a weakened jaw and have to wear a plate in public to conceal the gap of my missing front tooth. I have lost the feeling in my upper lip and left cheek and when my nose dribbles I am not aware of it. I have a vastly diminished sense of smell which not only affects my work as a gas fitter but all aspects of my life. I have been warned not to swim as an exposed bone in my ear cavity could cause infection. I have anxiety related to my peripheral double vision, particularly in relation to heights, and I have an overall feeling of fatigue and irritability.”
The learned sentencing judge had before her a deal of material as to the facts of the applicant’s offence. It appears some seven witnesses made observations of what occurred. As is inevitable in cases of this sort where the centrepiece is a relatively short traumatic episode, the accounts of the witnesses varied. The judge heard as part of a “fact finding” exercise, viva voce evidence from a witness called Bertram. He was cross-examined by counsel for the applicant. She also had statements and committal depositions of Bertram and Mahamud and other witnesses called Petty, Woodward, Lidop, Hunt and McHugh together with a record-of-interview made by the applicant on Saturday, 1 March, 1997 at 12:15 p.m. and later. This was videotaped.
In addition to the above, the judge received the following exhibits. Exhibit A, statement of Dr Gall dated 7 July, 1998; Exhibit B, photographs; Exhibit B1, statement of witness Mahamud; Exhibit C, record-of-interview tape and Exhibit E, Victim Impact Statements. As part of the plea, counsel for the applicant called a number of witnesses including a Mr Lamberti from Odyssey House and Mr Cummins a Forensic Psychologist.
I shall return later to the detail of the eye-witness evidence, but, as I have said, it was not disputed that, having felled the victim with a blow, the applicant struck him several times in the face with his fist and that during this the victim offered no resistance. Nor was it disputed that the applicant departed the scene, both running and walking, after the commission of the offence. However, he was arrested not far away, apparently at the corner of Elizabeth and Flinders Streets.
At the end of this quite lengthy plea proceeding, which concluded on 10 June, the learned judge reserved her decision as to sentence until 22 June. On that day she sentenced the applicant to be imprisoned for 30 months and fixed a non-parole period of 15 months. She also made a declaration as to 30 days pre-sentence detention. (The applicant had been initially remanded in custody and it should be noted that upon being brought before a Magistrate on 3 March, he made an offer to plead guilty to a count of recklessly causing serious injury.)
The applicant subsequently lodged notice of application for leave to appeal against sentence pleading certain grounds and on 2 December last the learned Registrar granted leave to substitute the following grounds:
“Ground 1
The learned sentencing judge erred in making the following findings:
(i)The preference of the accounts given by Kenneth Bertram and Abdulah Haji Mahamud to the account given by the applicant as to what occurred after Eden Crowe left the vicinity of the hotel.
(ii)The acceptance beyond reasonable doubt that the applicant was not acting in self defence when he delivered the first blow to Eden Crowe.
(iii)That the applicant attacked Eden Crowe from behind in circumstances where he was not threatening the applicant.
(iv)That the assault upon Eden Crowe was unprovoked
In that such findings were not reasonably open and that the findings, save for (ii), were not expressed to be beyond reasonable doubt as was required.
Ground 2
The learned sentencing judge failed to place sufficient weight on the applicant’s
(i) antecedents
(ii)past efforts at rehabilitation
(iii)prospects for future rehabilitation
(iv)genuine remorse.
Ground 3
That the learned sentencing judge did not give sufficient weight to the alternative sentencing dispositions available other than effective imprisonment in the Sentencing Act.
Ground 4
The sentence is manifestly excessive in all the circumstances.”
I now turn to the arguments of counsel on the application.
As to ground 1, counsel for the applicant began his submissions by referring to what he called a “critical point” in the reasons for sentence of the learned judge.
“However, in relation to this factual issue (what occurred after the victim left the vicinity of the hotel) I prefer the account given by Kenneth Bertram and Mr Mahamud than the account which you gave when you were interviewed by detectives from the Homicide Squad.
I accept beyond reasonable doubt that you were not acting in self-defence when you delivered the first blow to Eden Crowe. I find that you attacked Eden Crowe from behind in circumstances where he was not threatening you. After he fell to the ground as a result of your attack you continued to punch him a number of times to his face. During this attack he offered no resistance. You then left him.” (232)
Both Mahamud and Bertram had been drinking with the applicant and their evidence was not disputed that some time after midnight a disturbance occurred in the hotel during which a female bar attendant was punched in the mouth by a male, which incident upset the victim. Also not disputed was their evidence that the victim was affected by drink in the hotel and drunk upon their departure from it with the victim about 3:00 a.m. They further deposed that the victim, who wrongly believed the applicant was responsible for the attack on the attendant, then became verbally aggressive to the applicant. The victim had to be physically restrained by Bertram from going over to the applicant on a number of occasions while crossing Little Bourke Street. Some half an hour was taken up by this conduct during which time the applicant did not act aggressively. Finally, it was not disputed that the victim, Bertram and Mahamud headed off down Russell Street in a southerly direction and that they were followed by the applicant.
Counsel’s submissions focused on various pieces of evidence given by Mahamud and Bertram. Cross-examined, upon a Basha enquiry when a trial of the applicant was still in contemplation, Mahamud was asked:
“Q. He (the applicant) struck the person in the face?
A.Yes.
Q.When the man approached this person, did he (the victim) have his back to him, was he side on or was he facing him?
A.He’s in the back.
Q.So he had his back to him?
A.Yes.
Q.For some reason he turned round, correct?
A.Yes.
Q.You can’t say why?
A.Yes.
Q.But there was something that happened that made him turn around so that he faced the person that was approaching him, the man that had the argument with the barmaid?
A.Yes.
Q.Shortly after that he hits the man in the face?
A.Yes.
Q.Correct?
A.Yes.
Q.What happens then?
A. He fell over in the ground.” (62)
Later in his evidence Mahamud was asked:
“Q. Who grabbed the back of whose collar?
A.Mr Crowe’s – the man who bashed him, he grabbed it.
Q.Grabbed Mr Crowe’s collar?
A.Crowe’s yes.
Q.What did that cause to happen, what did you see happen?
A.He was nearly kneeling down and he give him one punch in the face too and he fell down again.” (72/3)
In his evidence-in-chief, Bertram was asked:
“Q. Now the first punch you see, which direction is Mr Crowe facing when that first punch is thrown?
A.He was facing away from Mr Cox towards Donaldson Lane.
Q.That first punch, where did it strike?
A. In the back of Eden’s head.” (100)
In argument, counsel (as he was quite entitled to do) combined a reliance on aspects of these witnesses’ evidence with an attack on Mahamud’s credit and on both witnesses’ accuracy. Thus, it was put that Mahamud had initially been unco-operative with the police and had not made a statement until some 18 months had elapsed from the incident. He had prior convictions including some for dishonesty as to which he was not disposed to speak candidly. His evidence that the applicant had told him that he was going to “fix up “the victim about the argument concerning the bar attendant and his assertion that the applicant argued with her were implausible and contrary to the general run of the evidence. He was unable to give a reason for it but he did say that the victim was facing the applicant before the delivery of the first blow. (62)
So, too, it was said that Bertram had spoken to the victim on some six or seven occasions to get him to come away from the applicant. Bertram, it was pointed out, had given evidence of the victim’s agitation on leaving the hotel and his difficulties in attempting to calm the victim down. Ultimately, he had to drag him away from the applicant. (122) Bertram had told the committal hearing that the applicant had placed his left hand on the victim’s right shoulder and spun him around before striking the first blow in contradistinction to his account already cited. Finally, it was pointed out that Bertram had been asked, having been reminded that he was given evidence some two and a quarter years after the event:
“Q.…You can’t really say with any real degree of confidence precisely how that incident started? Do you understand what’s been put to you?
A.Yes.
Q.That’s fair, isn’t it?
A. Yes.” (114)
It was notable that these submissions assumed that the learned judge had found that the applicant had delivered the first blow to the back of the victim’s head. Counsel contended that such a finding beyond reasonable doubt was not open to the learned judge. In my opinion, her Honour made no such finding. She made no reference to a point on the victim’s body where the first blow landed. She did state that the applicant attacked the victim “from behind” but in my view that meant no more than that the applicant had overhauled the victim before the first blow was struck. Her Honour said she preferred the evidence of Bertram and Mahamud to the account given to the police on interview by the applicant. Bertram had given evidence, which was not challenged, that the applicant “caught up to Eden”. Counsel for the applicant referred without demur in cross-examination to an aspect of Bertram’s police statement which referred to the applicant having “hurriedly walked after Eden” and having “caught” him. Mahamud had given evidence that he saw the applicant “walk towards” the victim. This evidence was not challenged, and, indeed, the questions of the cross-examining counsel assumed that the applicant had “approached” the victim. In re-examination he was asked:
“Q.When you see the man walk up to Mr Crowe, before any punches are thrown?
A.Yes.
Q.Before any punches are thrown, was there any contact between Mr Crowe and the man who walked up behind him?
A. No.”
In his record-of-interview consequent upon his admissions that he had thought “I better go and have a word with him, see if we can sort this problem out”, the applicant was asked “Did – wouldn’t it be fair to say that had you not followed him up Russell Street that this incident wouldn’t have happened?” The applicant responded, in part, “I wish I had’ve just walked away.”
He had earlier said to the police “So I decided to approach the man…I followed him up Russell Street…” (301). He added that he had attracted the man’s attention.
In my opinion, the learned judge’s reference to “from behind” addresses these matters.
In his record-of-interview, the applicant told the police, “…I was acting in self-defence at the time I (first) hit him.” (412) Elsewhere in it, he gave a number of particulars of this assertion. A number of these related to threats uttered by the victim. “He was threatening to kill me” (213); “He became increasingly aggressive towards me” (238); “…His approaches towards me became more and more violent, more and more aggressive, not physically violent…” (240); “…At about this time he was telling me he wished to kill me” (242); “…He had threatened to kill me many times or three or four times” (280); “His approaches were becoming increasingly violent, increasingly crazy. He had a very crazy look in his eyes and I was becoming increasingly scared…” (280); (He said) “I’m going to fucking kill you…” (281). All these references were to aggression displayed by the victim in the vicinity of the Exford Hotel. They received support from other evidence before the judge. As to the incident constituting the offence which, according to the applicant, occurred near the Russell Cinemas, the applicant said, variously, “There were blows exchanged” (217); “…He (the victim) turned round and he still had the crazy look in his eyes and he swung at me…” (301); “…He (the victim) did make to some sort of blow at me” (310); “I’m not sure if he hit me with his left or right hand” (311); asked by a police officer if the victim had hit him, the applicant replied, “I believe he only attempted to” (312). Asked about this again, the applicant replied, “He did make an approach towards me” (314). The applicant added, “…I believe I struck him first” (315) The applicant later stated, “…He approached me after I’d attracted his attention and in a physically violent manner – he had very crazy looking eyes and I – I had hit him in the head…” (339) Still later in the interview the applicant said that the victim, “turned round and – and made an advance towards me at which point I did hit him, yes” (474); and “…I firmly believe that he made to attack me.” (545) In other answers (249), (250), (280) and (443) the applicant referred to the victim striking or attempting to strike him but it is clear that these references are to incidents in the vicinity of the hotel. The applicant’s claims that at the beginning of the incident constituting the offence the victim approached or advanced, or made or attempted a blow, received no support from Mahamud and Bertram. Mahamud denied any contact between the two men prior to the applicant hitting the victim in the face. The most that could be said about Bertram on this issue was that he conceded that he could not say with any real degree of confidence precisely how the incident started (114) There was some evidence from both men that the first blow struck the victim in the face and that the two men were facing each other at that point. Having regard to these circumstances, the variety and contradictory nature of the applicant’s accounts and his flight from the scene leaving a seriously injured man, in my opinion it was plainly open to the learned judge to “prefer” the accounts of Bertram and Mahamud to that of the applicant on the issues of whether or not the victim was threatening the applicant before the applicant’s first blow and whether or not that blow was delivered in self-defence.
The contention that the learned judge did not apply the correct burden and standard of proof to her findings was but faintly argued. Her Honour expressly stated that such burden and standard had been applied by her in relation to the issue of whether the first blow had been struck in self-defence. It is not to be supposed that she did otherwise with respect to other findings adverse to the applicant, for she had received repeated reminders as to it during submissions made on the plea. (172), (182), (188), (219) In my view there is no substance in this contention. Nor is there substance in the further contention that the judge, on these issues, failed to take account of the character evidence given on behalf of the applicant, which evidence showed a lack of violent disposition in him on occasions when he had been subjected to substantial provocation and generally. Her Honour was not asked to do this and no doubt counsel had in mind that it was common ground, whatever the start of the incident, that the applicant had severely beaten the prone victim when he was lying on the ground. (The applicant admitted to the police “I think all up I hit him four, possibly five times and I may’ve even hit him six times”. No character evidence could alter that circumstance.)
As to the other eye-witnesses, her Honour expressly excluded from her consideration the depositions of the witness McHugh. She did not refer to material coming from the others but it was before her and it warrants examination in the matter of the first blow delivered by the applicant. Petty did not see that part of the incident, nor did Woodward, Lidop and Hunt. For that reason, they provide no support for the applicant’s account of an attempted blow by the victim preceding his first blow. They do address the number of blows and the disposition of the prone victim. Petty said the victim was, “motionless and appeared to be unconscious”. He put the number of blows delivered at “at least five times”. Woodward said the prone man “appeared to be unconscious” and put the number of blows delivered at “at least ten”. Lidop said “the guy lying down was not offering any resistance” and saw at least three blows to the head. Hunt saw the victim “lying on his back motionless” and saw at least three blows. (Mahamud gave evidence of “five, six” punches after the victim went down onto the footpath. Bertram gave evidence of “probably eight to ten blows” in the same circumstances.) The learned judge found that when the victim was on the ground the applicant “continued to punch him a number of times to his face” and that “during this attack he offered no resistance”. In my opinion, a finding of a precise number of blows thus delivered would not have been possible on the state of the evidence. But in any event, it was unnecessary for a proper assessment of the applicant’s offence. On any account, a barbarous set of blows were delivered to a prone and non-resistant victim with awful consequences.
In my opinion, all of the findings the judge made as to the actual offence were open to her and I would not uphold the contention that she applied an inappropriate burden and standard of proof. In my opinion this ground fails.
I now turn to ground 2 which alleged, it will be recalled, that the judge failed to place sufficient weight on the applicant’s antecedents; past efforts at rehabilitation; prospects for future rehabilitation and general remorse. In support of this ground counsel took the Court to the applicant’s lack of prior convictions for crimes of violence, his school and work records, the evidence of Mr Cummins, that the applicant is in the top 2.2% of the population in terms of his IQ, but at the bottom end of the scale in relation to aggression, the evidence of Mr Lamberti as to the applicant’s successful efforts to cease his use of alcohol and cannabis and his co-operative attendance at Odyssey House in a anger management programme. Counsel also referred to Mr Lamberti’s preparedness to continue to assist the applicant and the evidence of Miss James from Odyssey House as to the applicant’s commendable progress and motivation. The Court was reminded that abundant evidence of genuine remorse came from a variety of the witnesses called on the plea and could also be obtained from a perusal of the record-of-interview video. The applicant’s early offer to plead guilty to the very offence of which he was ultimately convicted was also called in aid. In her reasons for judgment, the learned judge referred to the applicant’s age and his early life. She said she accepted he had come from a hard working and decent family. She referred to his schooling and an unfortunate conflict with his father (no fault of the applicant) which caused him to leave home before he completed secondary education. She referred to his subsequent work record and quite long service with the witness Mr Kirchner. She said she accepted that the applicant was hard working and multi-skilled and in Mr Kirchner’s view, capable of a high quality of workmanship. She referred in detail to the evidence of Mr Lamberti and Miss James. She said she accepted their evidence. She referred in detail to the evidence of Mr Cummins and said that she accepted his opinion that the applicant had a significant elevated level of anxiety which relates to a history of trauma. She said she accepted Mr Cummins’ evidence that the applicant was remorseful and felt guilty. She said she took these matters into account in the applicant’s favour. She referred to each one of the character witnesses and said that she took their evidence into account. She referred to the five written references which had been tendered and said that she took those into account. She said that she accepted that the applicant was a person from a good family and noted respect for the applicant from his family and friends. She said that she accepted he did not normally deal with problems in a violent manner. Although it has not been contended otherwise, I should state for completeness that the judge noted the applicant’s plea, its early intimation, the applicant’s lack of prior convictions and his good conduct since the commission of the offence. She said she took these matters into account.
This ground must depend on the proposition that although the learned judge specifically referred to all these matters and said she was taking them into account, she did not do, or sufficiently do, this. This proposition can only be assessed by an examination of the face of the sentence to see if there is any evidence that it is correct. I am unable upon such an examination to find any such evidence. This ground must fail.
Ground 3 was again but faintly argued. In my opinion, it entirely lacks merit. In her reasons for sentence the learned judge stated “no sentence other than a sentence of imprisonment is appropriate.” This statement plainly reflects s.5 (4) of the Sentencing Act. What were the “alternative sentencing dispositions” referred to in the ground? Counsel for the applicant accepted on the plea that a term of imprisonment was appropriate but asked for it to be totally suspended. Doubtless he had in mind that combined custody and treatment orders and intensive correction orders involve postulation of a maximum sentence of 12 months’ imprisonment – a sentence manifestly inadequate for the applicant’s offence. A community based order would involve postulation of an even shorter sentence.
I now turn to ground 4. As counsel for the applicant conceded, it admits of little argument. As to matters personal to the applicant, there was in this case a deal of material very favourable to him. I am satisfied her Honour gave it proper consideration. But she had another obligation. That was to give proper weight in the sentencing process to the applicant’s offence. Viewed objectively, it was, in my opinion, a very bad one, and the learned judge was right to categorise it as serious. It carried a maximum penalty of ten years’ imprisonment. To succeed on this ground, it is for the applicant to show that the sentence imposed fell altogether outside the range of those properly available to the sentencing judge. I am unpersuaded that it did. This ground must fail.
In my opinion this application should be dismissed.
BROOKING, J. A.:
I agree that for the reasons given by the Chief Justice this application should be dismissed.
HAMPEL, A.J.A.:
I have had the advantage of reading the Chief Justice's judgment. I agree with his conclusions.
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