R v Hemig
[2012] QCA 20
•24 February 2012
SUPREME COURT OF QUEENSLAND
CITATION:
R v Hemig [2012] QCA 20
PARTIES:
R
v
HEMIG, Nathaniel Joel
(appellant)FILE NO/S:
CA No 160 of 2011
SC No 1024 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
24 February 2012
DELIVERED AT:
Brisbane
HEARING DATE:
2 February 2012
JUDGES:
Muir, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal against conviction dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST CONVICTION – MURDER – GROUND FOR INTERFERENCE – JURY NOT PROPERLY DIRECTED – LIES – CONSCIOUSNESS OF GUILT – PROVOCATION – where the appellant was convicted of killing his mother – where the appellant told false versions of the events surrounding the killing to police and others – whether an Edwards’ direction appropriate – where the trial Judge directed the jury with respect to the appellant’s lies – where no re-direction was sought – where the jury sent a note inquiring about provocation – where the jury reached a verdict before redirection could be given – where the jury indicated they no longer wished to be redirected – where both counsel agreed that the verdict should be taken without redirection – where no redirection was given – whether trial judge should have reminded the jury of the prosecution’s onus with respect to provocation – forensic decisions of counsel
Edwards v The Queen (1973) 178 CLR 193; [1993] HCA 63, considered
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, consideredCOUNSEL:
M J Copley SC for the appellant
D L Meredith for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MUIR JA: The appellant, having initially denied killing his mother on about 16 July 2007, admitted to investigating police officers that he had killed her in her caravan in Tarragindi, Brisbane. After a nine day trial in the Supreme Court, he was convicted of her murder. He appeals against his conviction on the grounds discussed below. Before going to those grounds, it is useful to identify some of the more critical evidence before the jury.
The evidence
The appellant was 29 years of age at the time of the killing. He was in a de facto relationship and the couple had a three year old daughter.
The deceased’s body was discovered in bushland near Coominya late on the afternoon of 24 July 2007. A “piece of somewhat crushed black plastic bag covering [the deceased’s] entire face and part of [her] neck”. It had been “wrapped tightly to the face by five rounds of thick transparent cellophane tape”. The deceased, who was described by Dr Ong, the forensic pathologist who examined her body, as “medium sized with an elderly appearance” had a superficial laceration on the right forehead, a superficial laceration one centimetre in length on the right cheek below the right eye level with the bridge of the nose and related bruising of the right lower eyelid, bridge of the nose and upper cheek. Dr Ong was of the opinion that the laceration on the cheek and the related bruising were the result of a blunt impact or impacts before death.
Dr Ong also observed an abrasion on the top of the head and a subcutaneous bruise on the left side of the head, both of which, in his view, were caused before death. He considered that none of the injuries he observed could have caused the deceased’s death, but accepted that it was possible that they may have rendered her temporarily unconscious.
Dr Ong considered the pallid appearance of the lower part of the deceased’s face to be consistent with death by smothering. He detected no injuries consistent with the deceased having struggled prior to her death.
In cross-examination, Dr Ong accepted that there was a possibility that death may have occurred through “vagal inhibition” as a result of the heart being slowed, consequent upon the plastic bag being sucked into the back of the deceased’s mouth and the inside of her nose. In that event, he said, death could have occurred almost instantaneously. However, Dr Ong considered this cause of death to be unlikely. In re‑examination, he said that he saw no evidence of the plastic bag having been sucked into the mouth or nose.
The disappearance of the deceased was reported to police on 19 July 2007. Senior Constable Toohey telephoned the appellant that day. In the course of the ensuing conversation, the appellant gave him the following account. He had recently moved from Western Australia with his partner and child and had been staying in the deceased’s caravan for the past week. He and his partner had gone for a drive on the preceding Monday night, leaving the child in the deceased’s care. When they returned he saw rat bait on the floor of the caravan and remonstrated with the deceased about it. As a result of the argument which ensued, the deceased left the caravan on foot “with her bumbag” leaving her keys behind. The deceased “would do a lot of strange things” and “possibly suffered from a mental illness”. She had been writing to a person who lived in Bulgaria and could have gone overseas to visit him.
Senior Constable Toohey gave the following account of his discussion with the appellant on 20 July at the home of the appellant’s grandparents in Tarragindi. The appellant again informed him that he had argued with his mother on the previous Monday night and that she had left on foot. The appellant appeared to be angry and said that, as a child, he was not looked after by his mother or grandparents. He said that he had just moved over from Western Australia with his partner and child and that his grandparents would not allow him to stay inside their house. He commented again on the oddity of the deceased’s behaviour.
Senior Constable Toohey gave evidence that he spoke to the appellant over the telephone later on 20 July. The appellant told him that he had not heard from his mother. The appellant complained that his mother did not contact him whilst he was living in Western Australia and this made him angry. He again mentioned the deceased’s strange behaviour and repeated that when the deceased left the caravan she had a bumbag and no car keys.
On the afternoon of 25 July 2007, Detective Sergeant Armitt spoke to the appellant at a Slacks Creek residence and informed him that the deceased’s body had been located and that the police needed to speak to him in that regard. In the course of the ensuing conversation, which was recorded by a field tape, the appellant said that he knew his grandmother had alleged he had murdered the deceased and that his grandmother had always disapproved of him. He said that he wanted to have a lawyer present when he spoke to police. The appellant complained about the proposed seizure of his vehicle for the purpose of a forensic investigation. He said, “I just can’t get on with my life. I just can’t get away from her”. In response to a police officer’s observation that he took it that the appellant “[didn’t] get along with [his] mother too well”, he said, “She bashed the living fuck out of me when I was a kid”. He said:
“She wouldn’t tell me who [the Romanian person the deceased had been talking to] was or where he was and [then] she disappears after the argument that we had I then … found out that she is friggin missing and now I found out that she’s fucking dead. [Unintelligible] I’ve got a fucked up mother who beat the shit of me from the age of 4 and I have a fucked up mother who won’t give me an education I’ve been on the dole for the last 15 years cause I can’t get a job …
You don’t know what it has been like around that bitch you don’t know what it has been like.”
The appellant explained that after his disagreement with his mother he and his partner took blankets off the deceased’s bed, got in their car with the child, drove around for a while, then slept in the car at “the lookout”. He explained that the argument arose because ratsack was left out by the deceased in the caravan which placed his daughter at risk. He subsequently returned to the theme of not being able to escape from the deceased and his family.
He said that the deceased’s physical abuse had continued until he, at 15 years of age, threatened to beat her if she touched him again. He commented, “You don’t fucking know how hard it has been. I am fucking angry at the bitch, I’m not fucking lying she beat the shit out of me when I was 4 ½”.
The appellant gave a more detailed account of the ratsack incident, explaining that he had discovered ratsack in a lolly bowl on a counter in the caravan. He was concerned for his daughter’s safety and remonstrated with his mother by stating that she would never babysit his child again. He and his mother shouted at each other. She put her hands on him and he pushed her away, calling her a bad and abusive mother. The deceased then told him to get out and “grabbed her bumbag”. He said that he and his partner had been out that day looking for a property to purchase or rent. The deceased “pissed off down the road” and he then took blankets off the bed, put them in the back of the car and he, his partner and child slept at the Mount Cootha lookout.
Later that evening, the appellant voluntarily attended an interview with Detective Sergeant Armitt at the Logan Police Station. The appellant further described the ratsack incident and his and his mother’s departure from the caravan. When asked if he lost control of himself in the argument, he asserted that he was angry, but that he “maintained control”. When asked how it was that the child had been left with the deceased, the appellant said that he and his partner wanted to be unencumbered when inspecting properties and had trusted the deceased to take care of the child. The appellant explained that he had just pushed the deceased away from him and that he had never been physically violent to his mother. He protested his innocence.
On the morning of 1 August 2007, the appellant telephoned 000 and informed the operator that he and his partner had tried to kill themselves the night prior by overdosing on sleeping pills. He said, “[m]y mum was murdered. I just can’t take it anymore”. He went on to explain that the police were trying to say that he and his partner killed his mother, but that they had not. When an ambulance arrived at the location the appellant provided, the driver was given a diary which contained the entry:
“The end. The past few months have been bad. Really bad and we want to get some things off our chests. Firstly, I Nathaniel Hemig did not murder my mother Janis. But we found her in the caravan dead with bag on her head and panicked.
…
We moved and dumped her body.
We have nothing left but to certify that we are innocent of murder but guilty of moving her and we’re sorry for that. The police seek to pin … murder on us.
So death is the only escape and way to save our most precious daughter, Emma!
Please be sure we did not kill Janis Hemig but we found her dead.
Now the police can accuse us but we are innocent of murder. Innocent.
My partner lost her daughter Charlotte only a while ago and it’s just too much.”
Mr Marshall, a retired Anglican priest, said in evidence that he was approached by the appellant in St John’s Cathedral on 5 August 2007 after he had conducted a service. The appellant informed him calmly that he had snapped when he found his mother abusing his child and killed her.
On the evening of 5 August 2007, the appellant gave an interview to police at the Brisbane City Police Station, having voluntarily attended a nearby police station earlier that evening where he informed police officers that he wished to make a statement. He said in his interview that he had already spoken to a lawyer. The appellant gave Detective Sergeant Armitt and other police officers the following account. He and his partner had left the deceased babysitting their daughter. When they returned to the caravan that evening he heard his daughter crying and saw the deceased smacking her. He “entered the caravan … punched her in the face and she fell to the bed … [he] was pretty angry [and] … wasn’t thinking straight”. He could not believe what he had done and panicked. He put the body in the back of the car and took the deceased out to the Lockyer Valley Road. Everything happened very fast.
Under questioning, the appellant said the ratsack incident occurred “on another occasion”. When asked what happened after that incident, he replied, “I don’t remember. Went off the wall”. When asked what his mother did at that time, he said, “I think she stayed in the caravan”. He said that given his mother’s abusive history towards him, the smacking of his daughter “set [him] off” because seeing it made him remember what he had gone through. His recollection was that he punched his mother in the face. After she fell back on the bed, he grabbed a black plastic bag from a stack nearby and placed it over her face. The deceased struggled a little bit. She “fought back and kicked”. After she had ceased moving, he realised what he had done. He did not want the body to bleed in his car, so he opened up the plastic bag, placed it over the deceased’s head and wrapped it with tape. He said that he panicked, could not think straight and did not know what to think. He emphasised that what had happened was an accident.
The plastic bag was not, in fact, opened up and placed over the deceased’s head. Rather, it was placed over her face and secured in place by tape wrapped many times around her head. The bag covered part of the sides of the head, but not the back of the head. It may thus be thought unlikely that its intended role was to prevent blood seeping from the deceased’s head onto the boot of the appellant’s car as he claimed.
The first ground of appeal
It is now convenient to address the two grounds of appeal ultimately advanced on behalf of the appellant. The first ground is that the trial judge erred and that there was a miscarriage of justice in that the jury was not directed about the use that could be made about lies and other conduct alleged to have been told or engaged in out of a consciousness of guilt.
The appellant’s argument on this ground was to the following effect. Before addresses, the prosecutor informed the trial judge that he would not rely on lies told by the appellant as evidencing a consciousness of guilt, but merely as something the jury could use “to assess the accused’s story”. The primary judge observed that she would give the standard direction about lies going only to credit and later did so.
The appellant contended that the jury should have been directed in relation to lies in terms of the direction in the bench book modelled on observations in Edwards v The Queen[1] and Zoneff v The Queen.[2] For convenience, I will refer to such a direction as an “Edwards’ direction”. The basis of this contention was the prosecutor’s submission to the jury that the appellant had concocted a story about an allegedly provocative incident out of a consciousness of guilt. It was also contended that the prosecutor had, implicitly, so characterised the appellant’s conduct by highlighting his suicide note and suggestion that some relatives may have had a motive to kill his mother which may have been acted upon.
[1](1973) 178 CLR 193 at 210-211.
[2](2000) 200 CLR 234 at 244 [16].
Most of the passages in the evidence relied on by the appellant are those given in the prosecutor’s closing address, emphasised in the following extracts from the transcript:
“19 July Constable Toohey speaks to him on the phone and the accused tells him, … as a result of the argument Janis has then left the caravan on foot with her bumbag and has left her keys behind … Nathaniel told me that his mother would do a lot of strange things, a lot of strange, odd behaviours … and that she possibly suffered from a mental illness, also … he believed she was writing a letter to a person that lived in Bulgaria and that she could have gone overseas to see him.
You may have thought that is a blatantly false attempt to divert blame. He tells Constable Toohey that she took the bumbag with her … that’s never been found. You may have thought that was an attempt to distance himself but all the time he knows full well that his mother was lying dead in bushland at Coominya.
… Toohey then goes over to see Mrs Silcock and the accused turns up.
… I then spoke to Nathaniel. Once again Nathaniel provided us with a version that he had an argument with his mother that Monday night and then that she’s left on foot.
…
Well, again, members of the jury, what he is saying to Constable Toohey is all a pretence. Then we move forward … to 24 July and Mrs Hemig’s body is located. On the 25th Detective Armitt speaks to the accused and for the very first time the accused is told that his mother is deceased … he is told, ‘She is deceased. We have actually located your mother’. He says, ‘Where?’ ‘She’s been located deceased so we need to speak to you in relation to that, okay?’, and the accused replies, ‘Why? Am I implicated in something?’ … he sets off to disparage his grandmother who he thinks has suggested that he was involved.
…
He has vehemently denied and trying to disparage the person who might be saying, well, you need to look at Nathaniel. You may have thought he is also trying already to find excuses as to why they might find scientific traces of the deceased in his car.
He says things like, ‘We took the blankets … She’s been in the car. That’s if you find any DNA that’s why, but we didn’t kill her.’ You may have thought he was hiding and ducking from what he had, in fact, done.
He says … on the 25th – ‘I don’t know anything about that, how the body was found and I’ve always maintained that I’ve done nothing …
Members of the jury, it’s all a lie. The story that he last saw his mother leaving after the ratsack argument is all just a lie and there’s malice to his story. He tells the police – … on the 25th, ‘You’ve also got to consider … my aunt and my uncle. My aunt are executors of the estate ... my grandmother’s estate. Whilst my mother lives there, my brother lives there they can’t get the house’ … he was actually trying to point the police to investigate the relatives. So not only is he denying falsely any involvement in the killing he’s actually trying to divert the investigation to others.
…
… up to that point just a complete lie. … but the lies don’t stop there.
On the 31st the police executed another warrant in relation to the car. … next day the accused rings Triple-0. … what he says is clearly trying to manipulate the police investigation. …
Even in the context of a suicide attempt he is still lying and trying to hide his actual involvement. … he was obviously worried about the police investigation, the fact that they were examining the car again, the fact that they took the carpet. He’s obviously worried that there will be traces found on that carpet that will implicate him.
He leaves what purports to be a suicide note. … another attempt to manipulate the investigation to hide his actual involve[ment].
…it says, … ‘I Nathaniel Hemig did not murder my mother Janis but we found her in the caravan dead … We moved and dumped her body.’ He’s had to shift. He’s worried about the presence of something that will … link him to the murder in the car so he’s had to shift. He tried to come up with another story.
… the pressure you may have thought was really on the accused … you may have thought he needed a story that would actually explain away the scientific evidence that might be found … So he goes to Father Marshall and then to the police and he tells the story about the circumstance of the killing but, in my submission, it still isn’t the truth …
... even at the 5th of August the accused is not telling the truth. He is not prepared to tell the full truth because that would implicate him in the murder.
…
… recall the ratsack incident … he knows that couldn’t justify him killing her and so he comes up with another argument which is, ‘Oh, I saw her hitting and in the context of my history I lost control.’”
Virtually the entirety of the prosecutor’s address extracted above pursued the theme that the appellant lied with a view to distracting or diverting investigations into the deceased’s death in order to distance himself from involvement in the killing. As counsel for the respondent pointed out, the appellant ultimately admitted killing the deceased and, by inference, that he had lied and otherwise dissembled concerning the killing and the related conduct of himself, the deceased and others. A bench book direction in this regard would have been quite unnecessary. Once the killing was admitted by the appellant it became obvious that he had lied about his involvement, that the lies concerned “some circumstance or event connected with the offence” and that the lies were told because the appellant knew that the truth of the matter would implicate him in the killing. It would have been pointless for the judge to give directions pertaining to the blindingly obvious.
The picture painted by the prosecutor in his address to the jury was of a person who, having fabricated accounts of events which had been demonstrated to be plainly false, could not be believed when he put forward further accounts.
It is only the last two paragraphs of the above transcript extracts which are capable of being regarded as implicitly asserting that the appellant believed that to tell the truth about the circumstances of the incident would implicate him in the commission of the offence of murder. Counsel for the appellant argued that the prosecutor’s address had so tied his allegations of lying to a consciousness of guilt on the part of the appellant that the primary judge was obliged to give an Edwards’ direction. However, the primary purpose of such direction is to ensure that a jury does not engage in impermissible reasoning where it is contended that a lie is evidence of guilt.[3] That was not the case here. The potential for the impermissible reasoning which an Edwards’ direction seeks to remove was removed by a direction as to the use which could be made of a finding that the appellant had lied.
[3]Zoneff v The Queen (2000) 200 CLR 234 at 244 [16]-[17].
The trial judge’s direction on lies was:
“You have heard submissions from the prosecution which attribute lies to Mr Hemig. You will make up your own mind about whether he was telling lies and if so, whether he was doing that deliberately. If you conclude that the defendant deliberately told lies, that is relevant only to his credibility. It is for you to decide whether those lies affect his credibility.
However, you should bear in mind this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that that is evidence of guilt. The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, for example, to bolster a true defence, to protect someone else, to conceal disgraceful conduct or out of panic or confusion. So people lie for a number of reasons. If you think that there is or may be some innocent explanation for his lies then you should take no notice of them.”
The direction was clear. It was favourable to the appellant because it excluded the ability of the jury to reason that if the appellant was lying about the alleged smacking incident he did so out of a consciousness of guilt. Even without the direction, it would have been unlikely that the jury would have focussed on anything other than the apparent implausibility of the appellant’s final explanation of the trigger for his killing of the deceased. As I have said, the thrust of the prosecutor’s argument was that the appellant simply could not be believed. He initially advanced an obviously false account of his involvement. He then put forward and elaborated on the ratsack incident as the cause of the argument with the deceased which led to her departure from the caravan. Finally, he came up with the smacking incident as the trigger for the killing. In those circumstances, there was no need for the trial judge to give the direction now sought by the appellant.
Defence counsel did not seek a redirection. That was unsurprising. It would not have been forensically sound to have the summing up deal with the subject of the appellant’s lies at any greater length or with any more specificity than was strictly necessary. That would have served to highlight, after defence counsel’s address, the inconsistencies in, and the implausibility of, critical parts of the appellant’s evidence. There was no miscarriage of justice as alleged.
This ground of appeal must be rejected.
The second ground of appeal
The second ground relied on is that “a miscarriage of justice occurred in that the jury was not given further directions about provocation”.
There was no complaint about the primary judge’s initial directions in relation to provocation. While the jury was deliberating, they sent a note to the judge which enquired:
“The jury would like to know whether, in considering the issue of provocation, we are permitted to consider an alternative conduct by Janice Hemig other than that relied upon by Nathaniel Hemig as the act which causes provocation.
In other words, if we do not accept the defendant’s evidence with regard to the cause for provocation, are we permitted to consider, using inference, another cause or, must we dismiss provocation.”
The jury originally retired at 10.58 am and returned at 11.05 am for redirections. When the jury retired at 11.06 am, the judge advised that a verdict would not be taken before 2.30 pm. The above note from the jury was received at 3.30 pm, but due to difficulty in contacting defence counsel, the Court did not reconvene to consider it until 4.00 pm. Before the redirection discussed between the judge and counsel could be given, the jury sent another message advising that the note could be disregarded as a verdict had been reached. Both counsel agreed that the verdict should be taken without any further redirection and defence counsel informed the Court that he had sought and obtained the appellant’s instructions to that effect.
It was argued on behalf of the appellant that the jury’s query showed that the jury was not mindful of the fundamental principle that the respondent bore the onus of negativing provocation. It was further submitted that the possibility existed that the guilty verdict was arrived at because the jury did not accept the appellant’s claim that he was provoked and that the jury should have been reminded of the prosecution’s onus. The failure to give the further direction resulted in a miscarriage of justice.
Counsel for the respondent argued that the question did not indicate any want of understanding on the part of the jury as to the onus of proof. Rather, it was contended, the jury were doing no more than enquiring whether, if they did not accept the version put forward by the appellant, they could consider whether the appellant had been provoked by something else.
It was submitted that the jury must have decided that the query did not need answering because:
· the jury discounted any other provocative acts; or
· the jury were satisfied that whatever occurred did not cause the appellant to lose control; or
· the jury were satisfied that whatever occurred would not cause an ordinary person in the position of the appellant to act as he did; or
· the jury were satisfied that even if the appellant lost control, he was not acting “…in the heat of passion” at the time he killed his mother.
The primary judge gave detailed and conventional directions on provocation. There was and is no complaint about them. The primary judge’s more specific directions in relation to provocation were:
“Mr Di Carlo asked you to consider that the smacking cumulatively on the Ratsak incident and cumulatively on Mr Hemig’s history of abuse and neglect was sufficient.
In this regard you can consider the history of abuse and neglect which was corroborated by everyone as well as his very real sense of a justified grievance in the way Mrs Hemig failed to ensure he was educated, socialised and cared for. There is no evidence he was brought up in a loving environment.
The clear and really uncontested evidence is that he was raised by an angry and paranoid mother with very strong religious beliefs.
You take that into consideration. In considering, however, whether the alleged provocative conduct caused the defendant to lose control, you must consider the gravity or level of seriousness of the alleged provocation so far as the defendant is concerned, that is, from this particular defendant’s perspective.
This involves assessing the nature and seriousness for the defendant of the things the deceased said and did just before the fatal attack.
In this regard, you can consider the history of abuse and what effect hearing his mother smacking his daughter and her crying would have had on him.”
After giving these directions, the primary judge emphasised on a number of occasions that the onus rested with the prosecution to disprove the exculpating circumstance of provocation. How that could be done was explained carefully. The prosecutor had also informed the jury that the prosecution had the onus of proof in this regard. In my view, the prosecution’s submission that the jury’s query did not reveal any misunderstanding about the onus of proof should be accepted. Having regard to the directions and the content of the addresses, any such misunderstanding was unlikely. Moreover, as appears from later discussion, it is difficult to construe the query as directly or indirectly casting doubt on the jury’s grasp of the directions in relation to onus of proof.
In my respectful opinion, the desirable course was for the redirection to have been given, notwithstanding the jury’s intimation that their note should be disregarded. That would have avoided any possibility that the verdict may have been reached as a result of a mistaken understanding of what conduct could be taken into account with respect to the issue of provocation. However, any possibility that the failure to give the redirection may have resulted in a miscarriage of justice was avoided by defence counsel’s election, after due consideration, to agree that the verdict should be taken.
Viewed objectively, defence counsel’s decision was readily explicable as a choice likely to confer a forensic advantage on the appellant. The only conduct of the deceased capable of supporting the exculpating circumstance of provocation was relied on by defence counsel and referred to by the trial judge in her summing up. It was the smacking incident following on from the earlier ratsack incident viewed against the history of the deceased’s abuse and neglect of the appellant and “…his very real sense of a justified grievance in the way [the deceased] failed to ensure he was educated, socialised and cared for”. It may be thought that the summing up in this regard was, if anything, favourable to the appellant.
Having regard to defence counsel’s address, the summing up, and the evidence before the jury, it is impossible to see how any relevant “alternative conduct by [the deceased] other than that relied on by [the appellant] as the act which causes provocation” could be ascertained other than by a process of impermissible speculation. That, in itself, establishes that failure to give a redirection could not have given rise to a miscarriage of justice.
It was clearly to the advantage of the defence that it be left open to the jury to arrive at a verdict on a speculative basis and any redirection would have removed or limited that possibility. It is frequently observed that criminal trials are adversarial in nature and parties, as a general rule, are bound by the conduct of their counsel. There are no circumstances identified by the appellant that would cause the failure to give the redirection contended for by the appellant a miscarriage of justice notwithstanding defence counsel’s election.
Conclusion
For the above reasons, I would order that the appeal be dismissed.
FRASER JA: I agree with the reasons for judgment of Muir JA and the order proposed by his Honour.
CHESTERMAN JA: I agree with the order proposed by Muir JA for the reasons given by his Honour.
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