R v Esplin
[2009] QCA 89
•17 April 2009
SUPREME COURT OF QUEENSLAND
CITATION:
R v Esplin [2009] QCA 89
PARTIES:
R
v
ESPLIN, David Nicol
(appellant)FILE NO/S:
CA No 315 of 2008
DC No 284 of 2007DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Toowoomba
DELIVERED ON:
17 April 2009
DELIVERED AT:
Brisbane
HEARING DATE:
9 April 2009
JUDGES:
Keane and Fraser JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant challenged expert medical evidence – where appellant canvassed inconsistencies between complainant's evidence and appellant's evidence – whether verdict unreasonable or insupportable having regard to evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where appellant challenged the failure to caution jury as to adverse inferences drawn from appellant's custody – where appellant challenged the failure to preface factual summary in summing up by term "allegedly" – where appellant challenged the failure to direct jury as to medical evidence that complainant did not suffer memory loss – where appellant challenged the failure to direct jury with respect to complainant's possible motivation to fabricate evidence against appellant – where appellant challenged failure to direct jury with respect to possibility of majority verdict – whether trial judge erred in directing jury
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where appellant challenged admission of expert evidence from doctor – where doctor qualified medical professional – where evidence admitted without objection – where appellant challenged admission of pretext telephone call with complainant containing adverse admissions – where appellant challenged admission insofar as complainant not accompanied by adult during police questioning – where appellant challenged availability of complainant's notes to jury in jury room – where evidence admitted and allowed to jury room without objection – where appellant purports to challenge forensic tactics employed by counsel at trial – whether evidence improperly admitted
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where appellant complained that counsel failed to procure the attendance of witnesses on his behalf – where appellant failed to demonstrate how such evidence would advantage his case – whether failure to adduce evidence warrants appellate intervention
Evidence Act 1977 (Qld), s 93A, s 99
Police Powers and Responsibilities Act 2000 (Qld), s 415,
s 421Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1, cited
R v H [1999] 2 Qd R 283; [1998] QCA 348, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, citedCOUNSEL:
The appellant appeared on his own behalf
M J Copley SC for the respondentSOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: On 23 October 2008 the appellant was convicted upon the verdict of a jury of one count of maintaining an unlawful sexual relationship with a child under 16 years of age (count 1 on the indictment), three counts of indecently dealing with a child under 16 years of age (counts 2, 6 and 7), four counts of permitting himself to be indecently dealt with by a child under 16 years of age under his care (counts 3, 4, 8 and 9), and one count of exposing a child under 16 years of age to an indecent act (count 5).
The appellant was sentenced to seven years imprisonment in respect of the offence of maintaining an unlawful sexual relationship and to concurrent sentences of three years imprisonment in respect of each of the other offences.
The appellant seeks to appeal against all the convictions on a number of grounds. As one of those grounds involves the contention that no reasonable jury could have convicted the appellant on the evidence, it is necessary to summarise the evidence which was adduced at the trial. It is convenient to do this before discussing the grounds of appeal
The Crown case at trial
The Crown alleged that the offence of maintaining an unlawful sexual relationship occurred between 31 May 2005 and 1 January 2007. The offences the subject of counts 2 to 5 on the indictment were alleged to have occurred on one occasion during this period and the offences the subject of counts 6 to 9 were alleged to have occurred on another occasion during this period.
The complainant was a young man who was between 12 and 14 years old during the period of the alleged offending. The appellant was aged between 46 and 47 years old during this period.
According to evidence given by the complainant's doctor, the complainant has been diagnosed as suffering from Asperger's Syndrome and Oppositional Defiance Disorder.
According to evidence given by the complainant's mother, the appellant befriended the complainant in about June 2005 while the appellant was renovating a house in the street where they lived. In October 2005 the complainant's mother herself commenced a relationship with the appellant. The complainant's mother said that after October 2005, when she had to work on Thursdays, or had to go on courses, as she did in October to November 2006, she would leave the complainant with the appellant.
The complainant's evidence-in-chief was contained in recorded interviews with police on 29 January 2007, 7 February 2007 and 26 May 2008. These recorded interviews were tendered in evidence pursuant to s 93A of the Evidence Act 1977 (Qld). The cross-examination of the complainant was pre-recorded on 6 June 2008.
At the interview on 29 January 2007 the complainant had made notes of what he wanted to say and he "read these into the record". At trial there was no objection to the reception of the record of interview and the complainant's notes. The complainant said that the appellant began to abuse him sexually about three weeks after they first met although he could not remember what had then occurred. He said that the last occasion on which he had been subjected to sexual abuse by the appellant occurred around Christmas 2006 at the appellant's house. This last incident was the subject of counts 6 to 9 on the indictment.
In relation to this incident, the complainant said that his mother dropped him off at the appellant's house at about 11.00 am because she had to work that day. The appellant's son, Marc, was at home, but he went out for a couple of hours. After Marc left, the appellant told the complainant to go into the bedroom. The appellant knew what would occur so he went into the kitchen hoping that he would be able to leave. The appellant accompanied him and then they went into the bedroom. The appellant undressed the complainant and lay down beside him (count 6). The appellant touched the complainant and then sucked his penis until the complainant ejaculated (count 7). He then made the complainant suck his penis (count 8). He then made the complainant masturbate him until he ejaculated (count 9). The complainant said that he had been too afraid to tell the appellant that he did not want to do these things.
The complainant said that on other occasions, the details of which he could not remember, similar things had happened between himself and the appellant. He said that the medication which he took meant that he had "quite a time remembering things".
The complainant said that in 2006, on occasions when his mother was away, he stayed overnight at the appellant's house. He said that on every night he stayed with the appellant, the appellant would tell him to go to the bathroom and get undressed. The appellant undressed as well and they both got into the bath sitting at opposite ends. The appellant asked the complainant to insert a cake of soap into his backside and the complainant complied. The appellant would masturbate and then remove the soap. After they got out of the bath, the appellant dried the complainant and then sucked the complainant's penis until he ejaculated.
The complainant said that the appellant also used to take him on drives in the appellant's motor vehicle. The complainant said that he could not recall any specific occasion but the appellant would often stop the vehicle on the side of the road and suck and rub the complainant's penis until he ejaculated.
The complainant said he could recall an incident with a back massaging device which occurred at the appellant's house about 13 months before the complainant's first interview with the police. He said that he and the appellant were lying naked on a bed together and sucked each other's penis (counts 2 and 3). The appellant then took the massager from a drawer and told the complainant to insert one of its prongs into his backside. The complainant did so and the appellant told him to move it in and out (count 4). The appellant then rolled over onto his back and masturbated until he ejaculated (count 5). The complainant said that he used the back massager on the appellant in this way on three or four occasions.
The complainant also said that the appellant put his penis into the complainant's backside, but he could not remember the details of that behaviour. In the complainant's interview with the police on 26 May 2008, the complainant continued to assert that the appellant had sodomised him but he did not give any particulars of this assertion.
The complainant said that he had an argument with the appellant in which he kicked the appellant in the groin. Later that evening, he told his mother and his Baptist pastor about what had been happening between him and the appellant.
The complainant's mother said that during 2006 she noticed that there were blood stains on the complainant's underpants when she washed them. On one occasion she showed a bloody pair of underpants to her daughter. On another occasion she saw blood staining her daughter's bed after the complainant had sat on it.
The complainant's mother said that on the evening of 14 January 2007 she and the appellant were at home together in her house when the complainant came home from church. The complainant tried to tell her something, but the appellant kept interrupting. She heard the appellant scream and saw him bent over. The appellant told her that the complainant had kicked him in the groin. She fetched a packet of frozen peas for the appellant to apply to his groin because she was apprehensive that the piercing which the appellant had recently had performed on his penis might have been split open by the kick.
The complainant's sister said that in late 2006 her mother showed her some of the complainant's underpants which had blood as well as a white-grey substance on them.
The complainant's Baptist pastor gave evidence. He said that on the evening of
14 January 2007 he received a telephone call from the complainant who said that the appellant had molested him. The next day the pastor visited the complainant and his mother. He made a tape-recording of their conversation. This recording was tendered in evidence without objection at trial and the appellant's counsel
cross-examined the complainant by reference to this note.
On 29 January 2007 the police tape-recorded the contents of a telephone call made by the complainant to the appellant. The record of the conversation included the following statements by the appellant:
"∙ '… Listen right, right from the outset, um, I've tried to you know, only do anything if you, you wanted to'
∙'Well I thought you wanted to. I thought you wanted to explore your sexuality'
∙'Um, yeah I do think it was okay … Well, the things that we did I think were okay … because I thought you wanted to, I thought you needed to explore that side of you'
∙'… you shouldn't, you should feel no guilt about anything you did …'
∙The complainant: 'I shouldn't, but you should'.
∙The appellant: 'Well perhaps'."
On 31 January 2007 police searched two houses owned by the appellant. In one they found an implement which the complainant said was the back massager.
That day the appellant participated in a recorded interview with the police. The appellant denied that he had ever touched the complainant sexually. He said that on one occasion the complainant had grabbed the appellant's hand and placed it on the complainant's crotch. The appellant denied that the complainant had ever used the back massager on the appellant's anus, and he denied that the complainant had ever put soap into the appellant's anus. He said that on one occasion the complainant got into the bath with the appellant. He said that the complainant probably only touched his arms before the appellant told him to get out. The appellant said that the complainant knew of the appellant's piercing because the complainant had burst in on the appellant when he was in the toilet and he showed the complainant the piercing because that was the only way to get him out of the toilet. He said that sometimes he had woken up to find the complainant in his bed.
The appellant's son gave evidence that on a couple of occasions he had seen the complainant and the appellant asleep in the appellant's bed.
The appellant's brother gave evidence that some time after their mother's death in 2005 the appellant told him that he had fallen deeply in love with a boy of 14 or 15 years of age. The appellant's brother said that he told the appellant that "it was in his own interest to cease all contact with that boy and have nothing to do with him or he'd be in serious trouble".
On 5 February 2007 a doctor examined the complainant's anus. He found two lesions and some scarring at the anal opening. These injuries were at least a few weeks old, but the lesions were still visible. That suggested to the doctor either force of some magnitude or repeated trauma by penetration by a rigid, cylindrical object like a penis or a finger.
The defence case at trial
The appellant's case at trial was that the complainant had fabricated the allegations of sexual dealings between them. The appellant's counsel cross-examined the complainant on the basis that the complainant had fabricated his allegations of misconduct on the appellant's part to avenge himself on the appellant for the appellant's complaint about the assault on the evening of 14 January 2007. It was also put to the complainant that the injuries to his anus occurred because he had engaged in "self-penetration" with his finger which the appellant witnessed regularly when he came into the bathroom while the complainant was showering. It was put to the complainant that he had assaulted the appellant by inserting a cake of soap into his anus against his will and that on another occasion he had assaulted the appellant by inserting the back massager into the appellant's anus. The complainant denied these suggestions.
The complainant was also cross-examined in relation to his previous offences which included stealing $100 from his sister's bank account. The complainant admitted this offence. It was also put to the complainant that he had committed a number of other offences. The complainant denied these allegations.
The appellant gave evidence at trial. The appellant said that he was trying to behave as a father figure to the complainant when the complainant made sexual advances towards him. The appellant said in evidence that in August 2005 the complainant tried to persuade the appellant to buy him a bicycle and said that he would "do anything if you get me that bike". The appellant said that he then said to the complainant: "What? I don't like the sound of that. What do you mean exactly by that?" The appellant said that the complainant then reached over and put his hand firmly on the appellant's crotch. The appellant gave evidence that he then said to the complainant that "that's inappropriate", and that "selling sexual favours in return for stuff is just not on, mate". The appellant gave evidence that "we had a number of discussions in the next few days over that."
The appellant gave evidence of an occasion when he was lying in the bath when the complainant jumped in the bath. The appellant said that he drew his legs up towards his chest and asked the complainant to get out. The complainant refused to comply and then pushed a cake of soap into the appellant's anus. On a subsequent occasion, the complainant began to use the back massager to massage the appellant's back when he inserted it into the appellant's anus. He removed the massager and then masturbated on the appellant's back. The appellant said that he was unable to move because of the pain he was in.
The appellant gave evidence that in the conversation with his brother, he told his brother only that he loved the complainant "unconditionally".
In relation to the pretext telephone call the appellant said that he spoke as he did because:
"Stupid me, I just want to protect him. I could tell from his tone of voice – well, I knew from the – the topic of conversation that he was referring to the assaults on me. And he was very worried that I would report him. And I think he – when he – first when he mentioned it, I thought well, perhaps he's going to give an apology of sorts, you know."
The grounds of appeal
The appellant contends that:
(a) no reasonable jury could have convicted him on the evidence adduced at trial;
(b) the directions given to the jury by the learned trial judge were inaccurate;
(c) evidence prejudicial to the defence case was wrongly admitted at the trial; and
(d) evidence favourable to the defence case was not adduced at trial.
I will consider these grounds in turn, but before I do so I should mention that on the hearing of the appeal the appellant sought to advance arguments based on assertions of fact for which there was no evidence in the record of the trial. The appellant claimed that the deficiencies in the evidence were caused by the failure of his legal representatives at trial to follow his instructions in relation to the presentation of his case. The Court explained to the appellant that if he wished to raise a complaint about the conduct of his legal representatives at trial, it would be necessary for him to provide the Court with evidence in support of his complaint and that if he did provide such evidence, it would be open to the respondent to seek evidence in response from the appellant's former lawyers. The Court informed the appellant that if he wished to pursue such a course he would need to apply for an adjournment to enable the necessary evidence to be prepared. The appellant did not seek an adjournment to enable him to raise the alleged inadequacy of his representation in the proper manner. On several occasions, the Court reminded the appellant that he could not advance arguments based on evidence not adduced at trial by reason of the failure of his lawyers to follow his instructions, but the appellant refrained from seeking an adjournment to seek to put his arguments on a proper footing.
Unreasonable verdict?
The issue which arises under this ground of appeal is whether it was reasonably open to the jury on the whole of the evidence to have been satisfied of the appellant's guilt beyond reasonable doubt.[1]
[1]MFA v The Queen (2002) 213 CLR 606 at 614 – 615 [25] and 624 [59].
A major focus of the appellant's oral argument was upon the evidence of the doctor who gave evidence of the nature of the complainant's anal injuries. The appellant's thesis was that this evidence demonstrated that the injuries in question could not have been inflicted by the appellant. This was said to be because on the evidence of this doctor, the injuries could only have been inflicted after 15 January 2007. The doctor said in evidence that he was unable to say how old the scars which he saw were beyond that it was at least a few weeks. The doctor agreed with a suggestion, put to him by the appellant's counsel, that the scars could in fact be much older than that. This evidence was destructive of the thesis advanced by the appellant in this Court, and, in any event, the evidence of the doctor was to the effect that earlier damage may have healed so as to be invisible.
The appellant pointed to inconsistencies in the details of the evidence of the complainant and discrepancies between the evidence of the complainant and the Crown witnesses. The appellant said that these discrepancies and inconsistencies should have caused the jury to have a doubt about the reliability of the evidence of the complainant and his mother. But the complainant was unshaken in his evidence of misconduct by the appellant. It was a matter for the jury as to whether these inconsistencies or discrepancies caused them to experience a doubt as to the reliability of the complainant and his mother. It was open to the jury to regard the complainant as having difficulty with the details of events and in discussing matters which he found embarrassing, but nevertheless as a reliable witness on the matters on which he claimed a specific recollection. The jury may, for example, have thought that the fact that the complainant made no specific complaint that he had actually been sodomised by the appellant reflected deep embarrassment on his part, or they may have thought that it demonstrated an unwillingness on the complainant's part to claim a specific recollection of an episode of abuse when he could not confidently recall the specific details. On either view, the jury were entitled not to regard the criticisms which might be made of details of the complainant's evidence as fatally impeaching his reliability in relation to those incidents of which he gave specific evidence.
It should be said immediately that any issue as to the complainant's consent to the appellant's dealings with him was irrelevant to the charges against the appellant. In any event, even if full account is taken of the obvious fact that the complainant is a very troubled young man, it was reasonably open on the totality of the evidence to accept the complainant's version of events. The evidence of the pretext phone call provides support for the conclusion that sexual activity did occur between the appellant and the complainant. The evidence of the complainant's mother and the doctor provides strong support for the conclusion that this activity included anal penetration of the complainant.
There was further powerful support for the complainant's version of events and of the nature of the relationship between the appellant and the complainant in the evidence of the appellant's brother and son. On the hearing of the appeal the appellant asserted that his brother suffered from bi-polar mental illness and was prone to delusions. But this suggestion was not put to the appellant's brother at the trial. The jury could reasonably have regarded the evidence of the brother as reliable beyond any reasonable doubt as evidence of the sexual nature of the relationship between the appellant and the complainant.
The jury were reasonably entitled to accept the evidence of the complainant, and to reject as untruthful the evidence of the appellant. The jury were entitled to regard the appellant's version of the circumstances of the complainant's anal injury as contrived and unconvincing. The appellant's guarded responses during the pretext telephone call, his explanation at trial of his answers and the disparity between the appellant's denial in his interview with the police and his evidence at trial in relation to the soap incident and the back massager incident were such that the jury were fully entitled to reject his evidence as unworthy of belief.
On the totality of the evidence, the jury were fully entitled to accept the complainant's version of events, and to reject the appellant's case that the complainant had made unwelcome sexual advances to him.
The trial judge's directions to the jury
Under this heading the appellant complains that the jury were not informed that he was in custody on remand for the offences in question only. There is no substance in this complaint. The jury were expressly told by the learned trial judge that no inference should be drawn against the appellant because he had been in custody. The jury were also told that the appellant had no criminal history and were reminded by her Honour of the point made on the appellant's behalf as to the likelihood that a person of that character would commit the acts alleged by the complainant.
The appellant also complains that in the course of the summing-up the learned trial judge did not say "allegedly" before referring to the insertion of the massage prong. But the jury would have readily understood that her Honour was merely summarising the allegations made against the appellant and was not purporting to suggest that these allegations had been proven.
The appellant complains that her Honour's reference to medical evidence concerning the symptoms suffered by the complainant as a result of his Asperger's Syndrome was apt to convey that the trial judge had concluded that the complainant was genuine in his attempts to remember what had happened to him rather than feigning difficulties with memory in order to cover up his inability to recall the story he fabricated against the appellant. The appellant's complaint is that the medical evidence was to the effect that the appellant did not suffer from true loss of memory, and the jury should have been reminded of this evidence. But the jury would have been fully aware that the complainant is a troubled young man: it was the role of the jury to make the appropriate judgment as to the effect of the complainant's problems upon his reliability as a witness. The jury were not likely to have been misled by the learned trial judge's reference to the evidence on this point, and, in any event, it would not have been to the appellant's advantage to remind the jury of the medical evidence which was to the effect that the complainant's condition did not distort his memory. Such a reminder might have put undesirable emphasis on a reason why he might reasonably be regarded as a reliable historian even though he had difficulty in talking about his memories.
The appellant's next complaint under this rubric is that the learned trial judge did not adequately instruct the jury as to the possible motivation for the complainant to fabricate his evidence against the appellant. The particular motivation to which her Honour did not refer was to pre-empt an allegation of sexual assault against him from the appellant. But this suggestion had not been put to the complainant in cross-examination. It would have been unfair of the trial judge,[2] and hardly an appropriate exercise of the trial judge's power to comment on the evidence, for her Honour to put to the jury a case which the appellant had not put to the complainant. Moreover, the terms in which the complainant might be said to have been motivated to fabricate the case against the appellant were discussed by the learned trial judge with counsel for both sides before her Honour's summing-up to the jury. Her Honour told counsel of the terms in which she proposed to direct the jury on this point, and neither side sought any further or different direction.
[2]Nicholls v The Queen (2005) 219 CLR 196 at 267 – 268 [188] – [189].
The appellant's final complaint under this heading relates to the absence of direction about the possibility of a majority verdict. There is no substance in this complaint. The jury had no difficult reaching a unanimous verdict. There is no reason to think that such a direction was necessary to ensure that the appellant received a fair trial.
Evidence wrongly admitted
The appellant contends that the medical evidence of the anal examination of the complainant should not have been admitted because the doctor who gave that evidence was not qualified to do so. This complaint is without foundation. The witness in question was a duly qualified medical professional in respect of whose expertise no objection was taken at trial. The only qualification upon his expertise was that he said that he was not an expert in the effects of the use of sexual aids such as dildos or vibrators. That qualification does not affect the admissibility or reliability of the doctor's evidence.
The appellant contends that the pretext telephone call should not have been admitted into evidence. But this evidence was clearly admissible as containing admissions by the appellant of matters adverse to his interest. As Gummow and Callinan JJ said in Nicholls v The Queen:[3]
"The rationale for the reception of the admissions is a simple one (Slatterie v Pooley (1840) 6 M & W 664 at 669 [151 ER 579 at 581], per Parke B): 'what a party himself admits to be true, may reasonably be presumed to be so.'"
[3](2005) 219 CLR 196 at 266 [184] (citation footnoted in original).
The appellant contends that the evidence of this telephone call should not have been admitted because the complainant was not accompanied by an adult at the time. There is no substance in this objection. The appellant confuses the position in this case with that which might obtain under s 415 and s 421 of the Police Powers and Responsibilities Act 2000 (Qld) if the evidence in question was to be adduced against the complainant. The evidence of the pretext telephone call was being tendered against the appellant not the complainant.
The appellant complains that notes made by the complainant were admitted into evidence and were taken into the jury room. These notes were admissible in evidence pursuant to s 93A of the Evidence Act.[4] Further, these notes were tendered without objection. Nor was there any objection to the jury having these notes in the jury room where the learned trial judge indicated that it was her intention to allow the notes to go into the jury room. The learned trial judge had a discretion under
s 99 of the Evidence Act to direct that the notes be withheld from the jury during their deliberations but, having regard to the absence of reason to think that counsel for the appellant did not consent to the notes being given to the jury during their deliberations, it cannot now be said that her Honour erred in the exercise of her discretion.[5]
[4]See Gately v The Queen (2007) 232 CLR 208 at [97], [105].
[5]See R v H [1999] 2 Qd R 283 at 290 – 291 [18].
There is no reason why the appellant should not be bound by the conduct of his case at trial. The course taken by the appellant's counsel at trial is readily understandable as a matter of forensic tactics.[6] It was a not unreasonable forensic judgment on the part of the appellant's counsel at trial that the jury should be allowed to see the full extent of the complainant's difficulties in giving his version of events bearing in mind that the essence of the defence case was that the complainant was fabricating his allegations against the appellant. It is impossible to conceive that the defence case was actually prejudiced by this forensic decision on the part of his counsel.
[6]See TKWJ v The Queen (2002) 212 CLR 124 at [16], [26] – [27], [95] and [108].
Failure to call favourable evidence
Under this heading the appellant complains that his legal representatives at trial failed to procure the attendance of various people such as the principal of the complainant's school, a friend of the complainant, and the employer of the complainant's mother.
The appellant furnished no basis for the assertion that any of these people could have given evidence which might have disadvantaged the Crown case or advanced the appellant's case. The appellant was informed during the course of oral argument that there was no evidence that any of these people could have given evidence at trial which would have advantaged his case. The appellant did not seek an opportunity to attempt to furnish such evidence.
Conclusion and orders
In my respectful opinion, there is no merit in any of the grounds of appeal agitated by the appellant.
The appeal should be dismissed.
FRASER JA: I agree with the reasons of Keane JA and with the order his Honour proposes.
WILSON J: I agree that the appeal should be dismissed, for the reasons given by Keane JA.
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