R v Douglass
[2006] VSCA 37
•2 March 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 235 of 2004
| THE QUEEN |
| v. |
| TERRENCE MAIN DOUGLASS |
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JUDGES: | CALLAWAY, EAMES and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 February 2006 | |
DATE OF JUDGMENT: | 2 March 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 37 | |
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Criminal law – Application to withdraw plea of guilty to murder – Application refused by trial judge – No suggested error of principle – Whether exercise of discretion to permit withdrawal of plea miscarried.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. with Mr G.J.C. Silbert | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr R.I. Gipp | Kelly & Chapman |
CALLAWAY, J.A.:
I agree with Ashley, J.A.
EAMES, J.A.:
For the reasons given by Ashley, J.A., I agree that this application should be refused.
ASHLEY, J.A.:
Statement of the case
Before the court is an application by Terrence Douglass for leave to appeal against conviction. The sole ground of the application is that the learned trial judge erred in refusing an application by Douglass to withdraw his plea of guilty to the crime of murder.
The chronology, shortly stated, was as follows. The applicant was arraigned before a jury on 18 November 2003. He pleaded not guilty. The following day, in the absence of the jury, he was re-arraigned and pleaded guilty. Then the jury was brought in and he repeated his plea of guilty. The jury was directed to bring in a guilty verdict, and it did so. Then a sentencing hearing began. That hearing resumed on 15 December 2003. It remained incomplete. On 15 March 2004, the matter was called on again. The judge was told that the applicant wished to change his plea to not guilty. New counsel was instructed. The application was made on 21 and 23 April. The applicant gave evidence in support of the application. The Crown called a number of witnesses in opposition. Documents were tendered. I will refer to some of the evidence, oral and documentary, hereafter. On 30 April the learned judge refused the application, saying that he would publish reasons later. He did so on 9 September 2004[1]. On that day, the plea having earlier concluded, his Honour also sentenced the applicant[2] to be imprisoned for 20 years with a non-parole period of 15 years.
[1]See (2004) 146 A.Crim.R. 575.
[2]See [2004] VSC 372.
No question of principle arises upon the present application. I should enlarge upon that observation. First, there was debate before the learned judge whether he had power to grant leave to withdraw a plea of guilty after that plea had resulted in a jury verdict. There was also debate whether the learned judge was able to entertain an application after a conviction. In carefully considered reasons,[3] his Honour decided that he did have power to consider and decide the application. The correctness of his Honour’s conclusions was not put in issue on this application.
[3]146 A.Crim.R. at [9]–[27].
Second, his Honour described the discretion which resides in the trial judge on an application such as this by reference to authorities including R v Middap[4], Chow v DPP[5], R v Boag,[6] and, although in the context of an appeal, R v Coffey.[7] It was not in debate that his Honour correctly identified matters bearing upon the exercise of the discretion in a particular case by reference to those authorities,
[4](1989) 43 A.Crim.R. 362 at 364.
[5](1992) 28 NSWLR 593 at 599 per Kirby P.
[6](1994) 73 A.Crim.R. 35 at 37 per Hunt C.J. at CL.
[7](2003) 6V.R. 543 at 545-6, [6] per Callaway, J.A., Buchanan and Eames JJ.A agreeing.
Third, his Honour determined that the burden of persuasion rests upon an accused who seeks to change his or her plea[8]. The correctness of that conclusion is not in doubt, and was not challenged in this Court.
[8]Citing R v Webb and Hay (1992) 64 A.Crim.R. 38, R v Boag, ibid, and R v Pinhassovitch, Court of Criminal Appeal, Victoria, 7 February1994, unreported.
Fourth, it was not suggested that in the exercise of his discretion the learned judge applied some consideration beyond those which have been recognized as bearing upon the resolution of applications to withdraw a plea of guilty.
In the event, the question to be decided by this Court is whether the applicant has demonstrated that the judge’s exercise of discretion in fact miscarried.
Resolution of the application
The learned judge, having made a number of findings of fact, expressed this ultimate conclusion:
“…I find that the applicant freely chose to plead guilty to murder, conscious of his own guilt and having been fully apprised by counsel on the legal and factual issues involved and having been in receipt of expert legal advice, properly tendered, as to the overwhelming nature of the prosecution case”.
According to the applicant’s case, that finding was insupportable. The judge must have concluded that the applicant’s plea of guilty was occasioned instead by one or a combination of the following circumstances:
First, that it was the result of his being “panicked, scared, frightened”, that he did not know what to do, by reason of judicial pressure.
Second, it was “to gain a technical advantage, namely, for the trial not to proceed at that time”, he not then being prepared for trial.
In my respectful opinion, his Honour’s ultimate conclusion was not only available, the material which was before him demanded it. His carefully constructed reasons show why that is so. I go to relevant considerations.
First, the initial intimation by the applicant that he wished to change his plea was by letters to his solicitor dated 5 and 18 March 2004. They read as follows:
“I refer to a meeting I had with you in January 2004 and the discussion that took place between us regarding my changing of plea from Guilty to NOT Guilty. You expressed some reservation about this and your opinion was not to do it. I would remind you that my original plea was NOT Guilty and was only changed after the judge confused and pressured me into changing plea, I was not represented by council [sic] at this time.
I wish to change my plea and I require you to take all the steps necessary to achieve that goal.
I would like to know your response to this, and request your response in writing as a matter of urgency. “
and
“I, Terrence Douglass request Victoria Legal Aid to provide legal assistance for a change of plea application in the Supreme Court. The reasons why I want to change my plea because I am not guilty. On the day I entered my plea of guilty I was unrepresented and the judge said the trial will go on no matter what. I panicked, scared, frightened, did not know what to do. All those things bewildered by what the judge said he pressured me. [I omit a sentence which it is unnecessary to reproduce.].”
Those letters made allegations about judicial pressure which the learned judge concluded, in my opinion rightly, were inconsistent with the record of the trial so far as it disclosed the sequence of events on 18 and 19 November 2003.
The record showed that -
The applicant terminated the services of his counsel on the morning of 18 November because the latter refused to read to the court a letter composed by the applicant which was – there was oral evidence as to its contents – irrelevant.
There had been a number of disruptions to the trial since its scheduled starting date of 10 November. Each disruption had been at the instance of the applicant.
Two Chinese witnesses, as the applicant knew, had to return to China on 21 November.
The judge was of opinion – although he was not then apprised of evidence which could only have strengthened his opinion – that the applicant was attempting to manipulate the court to prevent this trial proceeding.
The judge directed that, should counsel’s services remain terminated, the trial would nonetheless proceed. Speaking to counsel, his Honour said this:
“This trial will be starting at 2.15. He will either be represented by you if he chooses to reconsider his position, or he will represent himself. This trial is not going to be adjourned any further. The moment of truth is here.”
At 2.15pm on 18 November counsel announced that the applicant would be representing himself. The learned judge then recited the following chronology, and asked that counsel correct any misstatements.
“I understand that the brief was served on 22 July 2002. The committal was listed for 24 March 2003. On that occasion Mr Crisp of counsel was briefed but was apparently sacked or had his services terminated.
On 16 June a solicitor Mr Bullard became involved in the matter. He was apparently the third solicitor to be involved. I don’t know who the second one was.
On 1 July 2003 the matter was mentioned and the accused was represented by Mr C. Newton-Browne and the trial was fixed for 5 November.
On 23 October the matter was again mentioned when the accused was represented by Mr Bourke and Mr Bullard, Mr Bourke having had an early September conference with the accused. At the end of that mention Mr Bourke and Mr Bullard withdrew from the case.
On 28 October there was a further mention, at which date 10 November was fixed for this trial.
Yet another mention occurred on 31 October when the trial was stated to be ready to proceed on 10 November with Mr Grant as counsel.
On 10 November the accused did not appear in court, the assertion being made that he had a fall in a prison van on the way to the court. He was taken to St. Vincent’s Hospital where he was apparently given a clean bill of health. In the meantime, in his absence, Mr Grant applied for an adjournment to Wednesday 12 November so as to spend Tuesday 11 November going through the material with the accused.
On Wednesday 12 November Mr Grant announced he had read the material to the accused, the accused wished to read ten of the statements on the computer, apparently on a larger font. Accordingly, an adjournment was sought to Monday 17 November. In fact, I adjourned the matter to the Friday 14 November giving the parties Thursday the 13th to re-read any of the statements and give instructions in relation to them. Legal argument then occurred on Friday 14 November and, as fate would have it because I was unavailable to sit on Monday 17 November, being required to chair the Forensic Leave Panel, that day was also available to the accused and his legal advisers.
When the matter finally came on this morning it was not suggested by Mr Grant that he was unprepared or inadequately instructed and no good reason has been advanced for the termination of the services of the solicitor, Mr Harvey. In those circumstances I am driven to the conclusion that an effort has been made to manipulate this court to avoid this trial proceeding. I bear in mind that the accused has been aware for some time that witnesses from China are scheduled to leave Australia by 21 November. Is that schedule of events, that chronology correct?”
Counsel including the applicant’s counsel as of the morning of 18 November, agreed with that summary.
The applicant then made a number of statements about his lack of access to material which were later shown to have been substantially untrue.
Counsel then assisted the applicant, notwithstanding that his retainer had been terminated, to decide whether certain witness statements should be admitted.
Counsel announced that his instructing solicitor would assist the applicant in the jury selection process.
The applicant was arraigned and pleaded not guilty. A jury was empanelled with the assistance of the solicitor. Immediately thereafter counsel, who had been retained again, announced his appearance.
Only on 19 November did the applicant indicate, initially through counsel, his desire to change his plea. The plea of guilty was made first to the judge in the absence of the jury and then before the jury. The jury then returned a directed verdict of guilty.
To my mind, the sequence of events which I have outlined did not sensibly admit of a conclusion that there had been a changed plea in response to judicial pressure which had caused the applicant to become panicked or scared. It did closely fit with what may happen when an accused has to face the moment of truth, particularly where the Crown case is strong, as the applicant’s counsel and solicitor had advised was here the situation.
Second, the applicant had been seised, well before his plea of guilty - and contrary to evidence which he gave - with the entire content of the Crown case against him. That told against a conclusion that he pleaded guilty because he was under-prepared, and was frightened to appear for himself; or else made the decision to plead guilty without a true understanding of the case against him. Assertions which the applicant made about a lack of understanding of the Crown case were contradicted by oral evidence given by a number of his previous legal advisers, by contemporaneous notes taken by those advisers as to what occurred at conferences which they had with him, by circumstances which showed that his oral evidence was surely wrong, and by a document which he signed on 19 – not 18 - November 2003.
I will mention some of that evidence in a moment. But first I should note this conclusion reached by his Honour:
“The material before this Court reveals the unfortunate fact that, for whatever reason, the applicant has an extraordinary capacity for mendacity. Insofar as this application is concerned, wherever there is a conflict of evidence between his account of events and those of his various legal representatives, I unhesitatingly accept their version of events. Each was a credible and reliable witness and, in many instances, their recollections were supported by file notes and other documentation.”
Counsel for the applicant, before this Court, did not seek to challenge that conclusion. Rightly so. To my mind, the material which was before his Honour compelled that conclusion.
Against the background of that conclusion, I return to the question whether the applicant was seised of the entire content of the Crown case against him before he made his guilty plea.
The applicant gave evidence, in effect, that the barrister and solicitor who had acted for him leading up to the committal hearing had refused to provide him with the hand-up brief. They had not allowed him to understand that he had a right to cross-examine witnesses. His counsel had not explained to him the nature of the allegations against him.
These allegations were denied by each of the barrister and solicitor. There was evidence that the barrister had conferred with the applicant on at least two occasions before the committal hearing. The solicitor gave evidence of conferring with the applicant, and of drafting a notice seeking leave to cross-examine particular Crown witnesses. Each of the barrister and solicitor denied that the applicant had ever asked to see the hand-up brief. Counsel gave evidence that, far from the committal hearing not being contested because the applicant had not been provided with a copy of the hand-up brief, the applicant had decided to proceed by hand-up brief after an application to adjourn the committal, on the ground that media representatives were present, had been refused.
It is entirely unsurprising that his Honour accepted the evidence of the barrister and solicitor about those matters, looking only at the respective probability of the differing accounts. What is it to be supposed that the barrister and solicitor were doing when they conferred with the applicant? Idly passing the time of day? Moreover, what possible reason could the applicant’s legal advisers have had for concealing rather than revealing the evidence against him, in what was an apparently strong circumstantial case? Plainly this was a case in which the applicant’s instructions were needed.
Counsel and the solicitor retained by the applicant in the period leading up to the committal were not the only legal representatives whom the applicant accused of refusing to provide him with the hand-up brief. The accusation extended to two solicitors whom he had later retained - Ms Margot Foster and Mr David Bullard. The applicant did not call Ms Foster or Mr Bullard. Regardless whether there was a point to be made than he – rather that the Crown – should have called those persons, the prospect that there should have been a wall of non–communication by a succession of solicitors strains credibility to breaking point.
Then there is the involvement of the experienced criminal barrister, Mr Grant, and the experienced criminal solicitor, Mr Harvey, to be considered. They were retained well before trial. So, for instance, the judge was told on 31 October 2003 that Mr Grant had been briefed.
The learned judge summarised the picture which emerged from the evidence of Messrs Grant and Harvey, interrelating it with certain pre-trial events, and with certain evidence given by the applicant, this way -
“50.The evidence indicates that Mr Grant, together with his instructing solicitor Mr Harvey, attended on the applicant at Port Phillip Prison on 5 November 2003. Because of the applicant’s past history with legal representatives, Mr Harvey took thorough file notes of proceedings. In a conference lasting just over two hours Mr Grant first took the applicant through the chronology of events. He explained the items of evidence relied upon by the Crown to establish its circumstantial case against the applicant and that any defence required a reasonable hypothesis consistent with innocence. Mr Grant expressed the opinion, correctly in my view, that the Crown case against the applicant was a strong one.
51.The law relating to self-defence, provocation, and unlawful and dangerous act manslaughter was explained. To the assertion by the applicant that the next door neighbour was probably responsible for the murder, Mr. Grant reiterated the strength of the circumstantial case with the likelihood of conviction if the case was defended on the basis that the applicant was not present when the victim was killed.
52.Amongst the material available to Mr. Grant was a record of advice given to the applicant by his former counsel Mr. Brian Burke that the Crown case was a cogent one and that consideration should be given to a plea of guilty with its associated sentencing discount. Mr. Grant, acting on the basis the applicant was purportedly sight impaired, left him a document written in large print containing 10 or 11 important issues about which he needed the applicant’s instructions. The applicant stated he would consider those points in conjunction with reading the material and it was arranged for counsel to attend within two days for further instruction. This evidence of Mr. Grant, which I accept, was confirmed by Mr. Harvey.
53.In the interim period, on the morning of 6 November, some 18 floppy disks containing the committal proceedings in a large font were placed in the applicant’s prison property and he was notified of the fact by Mr. Michael De Young another Victorian Legal Aid Solicitor.
54.About 2.00 pm. On 7 November, Mr. Grant and Mr. Harvey again visited the applicant. He had not accessed his disks claiming that there had been a “lock-down” on 6 November. No explanation was forthcoming as to the morning of 7 November. Further discussions ensued about the case but no further instructions were provided. The applicant assured counsel that he would read the material. The applicant had the opportunity to do so on 8 and 9 November, and offered no explanation for his claim that he had not availed himself of that opportunity. This is not surprising since he falsely claimed in evidence that he had not received the disks until 12 November.
55.On 10 November, this trial was scheduled to commence but the applicant alleged that he had had a fall in the prison van. A report from St. Vincent’s Hospital noted no objective evidence of injury albeit the applicant claimed soft tissue injury. As a result of this episode the trial was adjourned to 12 November.
56.On 11 November, the applicant was still claiming not to have read the material provided and consequently over a six hour period Mr. Grant, in the presence of Mr. Harvey, read to the applicant all 51 statements from the brief. At the end of each statement Mr. Grant outlined its significance in the Crown case. On 12 November, in accordance with the applicant’s instructions, Mr. Grant again sought an adjournment asserting the applicant’s desire to read about 12 of the statements. An adjournment was granted to 14 November, and arrangements were made with prison authorities not only to have the applicant transferred expeditiously from the Court to the prison, but to facilitate his use of a computer in the prison library.
57.On 13 November, Mr. Grant and Mr. Harvey visited Port Phillip Prison at 10.30 am. They were informed that the applicant had had access to the disks from 1.30 pm. to 4.00 pm. the previous day. In conflict with this account, the applicant himself claimed problems with the computer and that he had only had the ability to read the statement of the deceased’s sister. No confirmatory evidence was called. In any event the sister’s statement, with its damning evidence about a pendant worn by the deceased and later given by the applicant to his new wife Bei Wang, was discussed by counsel and the strength of the Crown case was reiterated. Instructions were again sought as to whether, and on what basis, the trial should proceed.
58.In the event a voir dire was conducted on 14 November. In his evidence before me, the applicant agreed he was able to give Mr. Grant instructions for this purpose.
59.On Monday 17 November, the Court did not sit and the ruling on the voir dire was delivered on the morning of 18 November. It follows that the applicant had from 15 to 17 November inclusive to read the 10 statements (his figure) he desired to revisit. According to his evidence he did not do so. His only explanation was: “I did try but it’s very hard being in prison to access computers”. Given the circumstances I have outlined I do not accept that evidence. The conduct of the applicant may be seen as part of an ongoing pattern of endeavouring to frustrate the trial process.
60.Indeed his assertion is contrary to the evidence of Mr. Grant who had yet another lengthy conference with the applicant on 17 November. At that time the applicant claimed to have read 13 of the 18 floppy disks and stated he would read the balance that day. In the course of this conference Mr. Grant discussed the possible rulings on the voir dire and reviewed the evidence in detail. He requested the applicant to indicate his defence and pointed out that if he was convicted at the end of the trial he might possibly receive a gaol sentence of 21 years.
61.After the ruling was given on 18 November, the applicant, through Mr. Grant, requested a half hour adjournment. In discussions with his counsel, the applicant sought an explanation of the implications and ramifications of a guilty plea. This was provided together with a description of the plea material which would be presented to the Court. It was Mr. Grant’s opinion that after the ruling the applicant well understood the strength of the Crown case.
62.In the event, as I have indicated, Mr. Grant’s services were terminated at this point because of his refusal to read to the Court the letter containing disparaging comments about Mr. Crisp and Ms. Nicholls.
63.After Court on 18 November, the applicant having pleaded not guilty, Mr. Grant, who had been reinstated, sought further instructions. He was told only: “I did not do it. I’m not guilty.”
Counsel indicated that he would test the Crown evidence but requested instructions as to any particular parts of witness statements the applicant wished to contest. The applicant was asked to consider this overnight as well as the probability that he would be convicted of murder given the strength of the Crown case. This conversation is again supported by Mr. Harvey. It does not reveal the level of pressure deposed to by the applicant who also claimed he signed a document on the night of 18 November, in which he agreed to plead guilty. He asserted the document was not read to him and he did not really know what it contained. This evidence does not accord with the reality of the situation as revealed by the transcript of proceedings which records Mr. Grant, on 19 November, informing the Court that the applicant, having been advised late on the previous afternoon about the strengths and weaknesses of the Crown case, had considered his position overnight.
64. In his evidence before this Court Mr Grant set out in detail the matters which, according to the applicant, had exercised his mind before reaching the decision. Ultimately he remarked: ‘The guilty plea is the way to go.’ Further, Mr Grant gave evidence of carefully explaining the issues to the applicant so as to make sure he was making an informed choice. A document was prepared by Mr Harvey in large script. It included the applicant’s instructions that he wished to plead guilty and that he was aware of the implications of his decision. I am satisfied not only that it was read aloud by Mr Harvey to the applicant but that the applicant himself read it before appending his signature to it. ...”
The evidence which his Honour heard plainly justified the conclusions expressed in those paragraphs of his reasons.
It was submitted for the applicant that his asserted lack of knowledge of the content of the Crown case was attributable to him having physical disabilities, including a problem with his vision. Had the trial proceeded, it would have been a very large question whether the applicant had any significant physical disabilities. But, that issue aside, the gist of the evidence was that the applicant’s alleged special needs had been catered for – for example, by reading statements to him; and by producing documents on disk which could be read on a large font. In short, there was nothing of substance to the submission.
Third, the document which the applicant signed – not on 18, but on 19, November – bespoke an informed and free choice on the applicant’s part to plead guilty to murder.
“I Terrence Main Douglass instruct my solicitor Mr P. Harvey and my barrister Mr Sean Grant that I am pleading guilty to the murder of Jia Hong Hu (otherwise known as Jenny).
Mr Grant and Mr Harvey have attended upon me at Port Phillip Prison for many hours over five visits since they took over the conduct of my case in early November 2003. Mr Grant has explained to me carefully and in detail the strength and weakness of the Crown case against me.
I fully understand that the case against me is an overwhelming strong case.
I have also been informed by Mr Grant the full benefits I will receive such as reduction in sentence if I plead guilty to murder.
After having the pros and cons of the Crown case explained to me and after careful and deliberate consideration and much thought I instruct my legal advisers Mr Grant and Mr Harvey that I am pleading guilty to murder.
I fully understand the decision I am making and I make the decision to plead guilty to murder of my own free will.
I have had this document read out aloud to me by Mr Harvey and I have read it myself.
I agree with the contents of the document.
Sign: Douglass
Date: 19/11/03/”
It was suggested that the document might be viewed as the solicitor’s creation, and that not much store should be set on the applicant having signed it. I do not agree. I think that the learned judge rightly perceived it to reflect the applicant’s instructions at the time. In so concluding, I have considered not simply the text of the document, but also that it was generated after extensive consultations between the applicant and his legal advisers over a period of weeks, during which period the strength of the Crown case had been stated and re-stated, the applicant had had access to the statements in the Crown brief, and the applicant had been repeatedly but unsuccessfully pressed to give instructions which would permit more than a formal challenge to the Crown case.
Fourth, any suggestion that the plea of guilty was a mistake by the applicant in ignorance of the true situation, or that it was the consequence of judicial pressure, was gainsaid by the fact that the application to withdraw the plea was not made until months after 19 November 2003 – during which period the parties had been back to court, and the applicant had conferred with his counsel and instructing solicitor.
Fifth - it is associated with the point last-mentioned – the applicant gave evidence that in December 2003 he had instructed his solicitor that he wished to change his plea; and that his solicitor in effect, had talked him out of it. That suggestion was not put to Mr Harvey when he gave evidence. Moreover, it did not sit comfortably, as to time, with the allegation raised by the applicant’s letter to the solicitor dated 5 March 2004.
The judge was not satisfied that any such conversation had ever occurred. He concluded that the matter of a changed plea was first discussed in March 2004, at a time when the applicant knew that the adjourned plea hearing was listed. That, I think, was an available conclusion, notwithstanding that Mr Harvey’s evidence was silent about the particular subject-matter.
Sixth, the submission made below and on the hearing of the present application, that the plea of guilty was the consequence of a desire to gain a tactical advantage – that is, to prevent the trial proceeding – made little sense unless one could postulate that the applicant was aware of the possibility that later in the piece he could apply to change his plea again, and would probably succeed in such an application. No evidence was given as could enable such a conclusion. Further, and despite the applicant’s past encounters with the criminal justice system, it would be speculation to infer such an awareness on his part, and so to ascribe such a motive to his plea of guilty on 19 November.
Seventh – it is associated with the point last-mentioned – neither the learned judge’s conclusion, expressed on 19 November, that the applicant had been making an effort to manipulate the court to avoid the trial proceeding, nor his findings that the applicant had “an extraordinary capacity for mendacity”, and that his conduct on 17 November might “be seen as part of an ongoing pattern of endeavouring to frustrate the trial process”, denied a conclusion that the applicant had freely chosen to plead guilty to murder, conscious of his own guilt.
I recognise, of course, that the applicant was charged with a very serious crime. It was a large decision to plead guilty, however strong was the Crown case. The applicant was not a young man, and the plea of guilty – even with a discount for that plea – must inevitably have led to a long period of incarceration. Those practical considerations emphasize the care that the judge needed to take when once the applicant applied to change his plea to one of not guilty. His Honour obviously did address the application with much care. His reasons show as much; just as they show that the material adduced on the application, and the logic of the competing contentions, overwhelmingly favoured the ultimate conclusion which he reached.
I would refuse the application.
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