R v M, WJ - [2004] SASC 345

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M, WJ
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)
3 November 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
Appeal against conviction - trial by Judge without jury - appellant convicted of unlawful sexual intercourse with a person under the age of 17, indecent assault and attempted unlawful sexual intercourse with a person under the age of 17 - inconsistency between victim's and mother's evidence concerning content of complaints made by victim to mother- whether the trial Judge erred in finding that the inconcistency could not be received as evidence going to victim's credibility - whether failure to properly address the inconsistencies resulted in a miscarriage of justice - whether the verdict is unsafe and unsatisfactory - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA), s 353, referred to.
R v ADW (2002) 84 SASR 178, discussed.
R v Foley [2000] 1 Qd R 290; Driscoll v The Queen (1977) 137 CLR 517, considered.

R v M, WJ
[2004] SASC 345
Court of Criminal Appeal: Doyle CJ, Besanko and White JJ

DOYLE CJ: WJM was tried by a Judge of the District Court, sitting without a jury, on four of the counts in an Information. The Judge found him not guilty on count three, and guilty on counts four, five and six.
WJM was later tried by another Judge on counts one and two, and was found not guilty.
WJM appeals against the convictions by leave.
Count three was a charge of unlawful sexual intercourse with a person under the age of 12. Counts four, five and six related to a single incident, and were respectively charges of unlawful sexual intercourse with a person under the age of 17, indecent assault and attempted unlawful sexual intercourse with a person under 17 years of age. The victim in each case was M, the daughter of D, with whom WJM was living for a time. M was born on 6 July 1978.
The grounds of appeal relate to the manner in which the Judge dealt with evidence from M’s mother D about what M said to D about WJM’s conduct, on two separate occasions, about ten years apart. On each of these occasions D confronted WJM about the statements made by M. The complaint is that the Judge dealt with this evidence incorrectly, and that the error is of sufficient significance to lead to a conclusion that there has been a miscarriage of justice.
Evidence
M was 25 years of age at trial.
M is one of four children of D. In 1987 they were living in a country town, on Sutcliffe Street. During 1986 D separated from the man with whom she was then living. D was working as a cook and often worked of an evening.
In about June or July of 1987 D met WJM. WJM moved into the house at Sutcliffe Street in 1987, but prior to moving in, as I understand the evidence, there were occasions when he stayed the night at the house. There were also occasions when he was at the house of an evening when D was at work.
At this time M was aged about eight years. She was asked whether, at Sutcliffe Street “anything unusual occur[red] between you and [WJM]”. She said “yes”. She said that she was asleep in bed, in a bedroom shared with her younger sister. She woke up and was aware of somebody lying in her bed. At first she thought it was her mother, after returning from work, but then realised that it was WJM. She said that she felt WJM remove his finger from inside her vagina, WJM told her that her mother would be home soon, and then he left the room. M was somewhat uncertain about when this happened, and was not able to say “for sure” whether it was in 1986 or 1987.
This incident was the subject of count three. The particulars allege that the offence occurred between 7 July 1986 and 31 December 1987, and it was common ground that this offence was alleged to have occurred at Sutcliffe Street.
M did not say anything to her mother, or to anyone else, the following morning. Her explanation was that it was an “uncomfortable situation”.
The effect of the evidence was that there was a single incident. But when asked whether “anything like this happened before”, M replied “No, not that I know of”.
In May of 1989 D, WJM and the other children moved into a house in Jeffries Street, in the same town. M turned 11 years of age in the middle of 1989.
M said that when they were living at Jeffries Street “on a regular basis” WJM would “mainly touch my breasts, put his finger inside me, put my hand on his penis and make me masturbate him”. She said that these incidents occurred in her bedroom, always at night-time and when she was asleep. Her younger sister was in the room when it happened. These incidents occurred at least twice a week, after starting off “less regularly”.
M did not say anything to WJM about what he was doing, and out of fear did not let him know that she had woken up during the incidents.
M was asked about the “last occasion”, when she was 11 or 12 years of age, and thought she was in grade 7. On this occasion her younger sister was sleeping in another room, and her mother was away for the night.
M was in bed asleep. She woke up and WJM was lying on the bed and had his finger inside her vagina. Then WJM placed her hand on his penis and caused her to masturbate him, for a minute or so. Then, while she was lying on her back, he knelt between her legs and tried to put his penis inside her. That was painful.
M said she was trying to pretend that she was asleep, but she started shaking badly and yelled out or cried because it hurt a lot, pushed WJM away and told him to stop it. Initially he persisted, but he did not put his penis inside her vagina. When she pushed him and told him to get off, he left the room.
A short time later WJM came back into the room and, in effect, asked M not to make any trouble for him.
Those incidents were the subject of counts four, five and six which, according to the particulars, occurred between 1 January 1990 and 31 December 1991.
It was common ground that these incidents were alleged to have occurred at Jeffries Street.
About a year later, in 1991, M spoke to her mother about WJM’s behaviour. Unfortunately, as will appear, M was not asked to give any detail of this conversation, or to explain how it arose, but merely to identify the topic. The evidence was not led by the prosecutor as evidence of a reasonably contemporaneous complaint that could be used in considering whether M had been consistent in what she said. The evidence was led only to provide context, or background, to evidence to be led from D about a subsequent conversation with WJM. That, no doubt, explains why the matter was dealt with by the prosecutor as it was.
The prosecutor asked M if she had a conversation with her mother “about what [WJM] had been doing”. She said she had. The prosecutor said he was not going to ask about the detail of the conversation, but only the topic. M then said that in 1991, about a year after the last occasion, “I told her that [WJM] had been touching me.” The prosecutor asked her if she “mentioned” that “it was sexual” and she said she did. That was all that she was asked. She was not asked at all about a later conversation with her mother about WJM’s conduct at Sutcliffe Street, a conversation of which D gave evidence in due course. I will refer to these conversations as complaints for convenience.
M said that she did not report WJM’s conduct to the police until 2003. She said that she acted then because her sister (who had previously told her that WJM had committed sexual offences with her) was still suffering from nightmares. Until then she had thought it better to “pretend it never happened”.
D gave evidence. After covering relevant background about her relationship with WJM, where the family lived and so on, her attention was directed to a conversation with M about WJM and “things that [WJM] had been doing”. She said the conversation was about a year before she married WJM, that marriage having been on 4 January 1992. She did not explain how the conversation arose. She said that M told her that WJM “had touched her sexually”, and when asked if she remembered the words M used, she said: “She said that he tried to have sex with her.” In cross-examination D said that M said it happened when M was in bed.
D immediately went to another room in the house and spoke to WJM about the matter. She said that she “asked him if he had touched her or if he had tried to get into bed with her”, and that he said that what M had said was true. He said he was very sorry, it would never happen again and he would get counselling. D did not go to the police because she loved him. She said that WJM apologised to M.
Although the timing is a little unclear, it appears that either next day or not long after this D left Whyalla with her children, intending to go to Mildura. It seems clear that some such event occurred about this time. D said that there was an occasion when she packed up and was going to leave, but could not “remember what it was for or whether it was at that time”. But other witnesses, including WJM, said it was the day after the confrontation. D said that she did not want to leave WJM, and in the end she got M to ring WJM from another country town, on the basis that D wanted to go back, and she thought that M could work things out with WJM. The end result was that D and her children returned to live with WJM.
D and WJM were married on 4 January 1992.
The prosecutor raised with D a further conversation with M “about what [WJM] had done to her”. This evidence also was led to provide a context for further alleged admissions by WJM. Initially counsel for WJM objected to the evidence, but the objection was not pursued after the prosecutor asked D to confirm that D understood the previous complaint by M to relate to conduct at Jeffries Street.
D was then asked about a conversation with WJM “in about early 2002”. She was asked whether she had a conversation with M and said:
“Yes. That’s when she told me that he had interfered with her when she was very young, when we were still in Sutcliffe Street . …
She told me that he used to go into her room at night-time and touch her.”
D said that she immediately contacted WJM by telephone, demanded that he come home and he did so. There was then an angry confrontation between D and WJM.
D’s evidence was that WJM claimed they had “already gone through all of this”, and that it was already sorted out. D said that she denied that to WJM, saying: “No, I only knew about the incident in Jeffries Street.” In other words, D said that she told WJM that while she knew about “the incident” the subject of M’s first complaint to her, she knew nothing about sexual interference earlier in their relationship when they were still living at Sutcliffe Street. D confirmed that she thought there had only been a single incident at Jeffries Street.
D then gave evidence that she separated from WJM not long after this conversation, in March 2002.
So it can be seen that although the evidence is a little confusing, D said that M complained first of a single incident at Jeffries Street and later, probably, of a course of conduct (“he used to go into her room”) at Sutcliffe Street. Her evidence was that WJM admitted the first allegation when raised with him, and that when the second allegation was raised with him he claimed it had already been discussed, presumably on the occasion when the first allegation was made.
As I have indicated, WJM duly gave evidence. He denied committing any of the alleged offences, and denied sexual misconduct of any kind with D’s children. He gave evidence of a normal family life until the time when his relationship with D deteriorated. He agreed that in about August 1991 D confronted him with an allegation of misconduct with M, and that there was a long argument, mainly about his relationship with D. He said he denied the allegations. He said that next day D left him, but that after a telephone conversation she returned, in the context of M admitting that she had made up the alleged misconduct. He said there was a heated argument in early 2002 about property settlement in the context of an anticipated divorce. His case was to the effect that the allegations against him had their origin in the breakdown in his relationship with D, and that M was acting to help her mother by harming WJM.
The Judge’s findings
I will direct attention mainly to the findings relating to the inconsistency between M and D about the number of incidents at Sutcliffe Street and at Jeffries Street.
The Judge directed himself appropriately on a number of relevant issues, subject to the issue raised on appeal.
He accepted M and D as truthful witnesses, despite some vagueness in M’s evidence. He rejected the contention that M and D had together fabricated a case against WJM. He found that the delay in making the allegations arose from “an unfortunate family agreement to suppress the allegation of attempted sexual intercourse”. He rejected WJM’s evidence.
The Judge found that count three was not proved beyond reasonable doubt. He was satisfied beyond reasonable doubt that the offending conduct had occurred. But he was not satisfied that it occurred between the dates alleged in the particulars. If he had been satisfied that only one such incident occurred at Sutcliffe Street, he would have entertained an application to amend the particulars to extend the period within which the offence was alleged to have occurred. But he was not so satisfied, having regard to M’s “reserved response” to the question whether “anything like this happened before”. He entered a verdict of not guilty on count three.
He entered a verdict of guilty on counts four, five and six.
I should add that the Judge provided detailed reasons for his findings. They include a detailed consideration of the credibility of M and D, and of the submissions for the defence in relation to that evidence.
The complaint on appeal
The point taken on appeal is that the manner in which the Judge dealt with the evidence relating to M’s complaints was erroneous, and was of such significance to the Judge’s conclusion, or so affected his conclusion, as to mean that there had been a miscarriage of justice and that the guilty verdicts were unsafe and unsatisfactory. The inconsistency between M’s evidence about the number of incidents and D’s evidence about the complaints was said to be fundamental to the trial.
The Judge’s consideration of the complaint evidence
It is necessary now to explore in more detail the basis for the argument advanced on appeal, before considering whether the argument should succeed.
As I have explained, M gave evidence of one incident at Sutcliffe Street, and responded equivocally to a question about whether anything like that happened before. M gave evidence of regular misconduct by WJM at Jeffries Street. She said that about one year after the last incident at Jeffries Street she told her mother that WJM “had been touching” her. She was not asked about a later complaint to her mother D relating to conduct at the previous family home at Sutcliffe Street.
On the other hand D said that in late 1990 or early 1991 M said that WJM “had touched her”, and “tried to have sex with her”. D understood this to relate to conduct at Jeffries Street, and to a single incident. That does not fit easily with M’s evidence of what happened at Jeffries Street and her complaint that WJM “had been touching” M.
Her evidence of what she said to WJM when she confronted him also suggests that she was talking about a single incident. In particular, when she later gave evidence about the second conversation with WJM she said she told WJM she knew about “the incident” at Jeffries Street, but not about anything at the previous address at Sutcliffe Street.
D’s evidence about the second complaint (relating to Sutcliffe Street) was of a complaint that WJM “used to go into her room at night-time and touch her”, suggesting a course of conduct, although M had given evidence of only one incident at that address.
D’s evidence suggests that in the first conversation with WJM, relating to Jeffries Street, she challenged him about a single incident, which he admitted. For example, she said that WJM said “he had been drinking” – a response appropriate to a single allegation. Her evidence of the second confrontation is unclear, but D’s version of the second complaint was “that he used to go into her room at night-time”, suggesting she confronted WJM about a course of conduct at Sutcliffe Street.
In short, M’s evidence appeared to be about a single incident at Sutcliffe Street and a course of conduct at Jeffries Street. D’s evidence was arguably about a course of conduct at Sutcliffe Street and a single incident at Jeffries Street.
This is all in the context of M’s evidence about her first complaint to her mother being very brief, M not having been invited to elaborate, and in the context of M not being asked anything about the second complaint to her mother.
The submission on appeal is that the Judge’s reasoning in relation to this inconsistency is flawed, and that the flaw gives rise to a miscarriage of justice. The submission is not that it was not open to the Judge to accept M’s evidence as proof of the offences.
To be more specific, the submission is that in rejecting a submission by the defence that the inconsistencies between the evidence of M and D were a “fundamental problem” for the prosecution, the Judge erred.
Ms Powell QC, counsel for WJM at trial and on appeal, identified the inconsistency to the Judge in those terms. Her submission was that the inconsistency was so significant that the Judge could not accept the evidence of M.
She made the further point that M’s first complaint on her own evidence was that “[WJM] had been touching me”, and yet her evidence of the incident to which this apparently related, the “last incident” was of conduct amounting to unlawful sexual intercourse, indecent assault (which would be called touching), and attempted unlawful sexual intercourse. As well, D’s evidence about this first complaint was that M had said “he tried to have sex”. That was inconsistent with the terms of the complaint deposed to by M.
A further submission to the Judge was that D’s evidence about the admissions by WJM had to be considered with great care, because the allegation she said she put to him was inconsistent with the prosecution case at trial.
The Judge recorded that evidence of the complaints was not led as proof of the truth of their content, or to establish consistency on the part of M. It was only led to explain why, at a particular time, D confronted WJM and how she acquired knowledge of the matters she put to WJM.
The Judge then said it was “unfair” to M to treat the evidence by D as evidence of “prior inconsistent statements” because they had not been put to M for her response.
He then said that he did not have to resolve “this difficulty”, because in any event the submission that the inconsistency was a “fundamental problem” was only “marginally compelling”. In context this expression must mean that the submission was not persuasive.
The Judge said that it was not surprising that M’s first complaint might have been of a single incident, because the last incident involved a painful attempt of unlawful sexual intercourse. M might well have focussed on that in her complaint. Also, D had not asked M to elaborate, but had immediately confronted WJM. It was understandable that M would be reluctant to disclose the whole course of conduct at Jeffries Street.

However, as Ms Powell said, M said she complained in the first complaint that WJM “had been touching” her, implying a course of conduct and not including a reference to sexual intercourse. Her own evidence of what she said to D did not fit with the Judge’s explanation.
In relation to the second complaint, the Judge said that D was mainly concerned with the fact that the complaint related to the earlier address of Sutcliffe Street. That is, D’s focus was on the fact that in the second complaint she was learning of misconduct earlier in the relationship than the first complaint, conduct of which she had been ignorant until then.
However, Ms Powell argued that this could not explain the difference between the single incident at Sutcliffe Street described by M and a complaint (according to D) of a course of conduct.
The Judge also said that the inconsistency could not be given the weight attributed to it by the defence, having regard to the “hesitant way” in which both counsel treated the relevant evidence.
Earlier in his reasons at [67] the Judge said that D’s evidence of WJM’s response to her accusations corroborated much of M’s evidence. Ms Powell argues that the Judge overlooked the fact that D’s evidence was of admissions that did not fit with M’s evidence.
In relation to counts four, five and six, the Judge said at [105] that the evidence of M and D had “a cohesive consistency about it”. He said that the evidence of WJM’s admissions was “important”. He referred in particular to the “aborted” separation by D from WJM, which he said fitted the prosecution evidence better than WJM’s evidence that this departure was simply due to a problem in the relationship. He also regarded the evidence about D ringing WJM after the second complaint, and demanding that he come home, as fitting the prosecution case better than WJM’s evidence.
Consideration of the criticisms
I agree with Ms Powell’s submission that the defence was entitled to rely on the inconsistency between M’s evidence about WJM’s conduct and her complaints, and D’s evidence about the complaints. The fact that the evidence of the complaints was led from M merely to explain D’s response does not mean that the evidence of D cannot be used to weaken M’s evidence, or D’s evidence.
The evidence by D about M’s complaints is evidence of statements by M inconsistent with her evidence about WJM’s conduct. The defence was entitled to rely on those inconsistencies to attack M’s credit.
The fact that the inconsistencies were not put to M was something to be taken into account in assessing the weight to be given to the inconsistencies. It was open to Ms Powell to have M recalled for further cross-examination. She did not do that. The consequence is not that the inconsistency should be ignored, it is that the failure to put the inconsistency to M that has to be taken into account: R v Foley [2000] 1 Qd R 290 at [20].
I consider that the Judge erred in deciding that D’s evidence could not be used as evidence of statements by M inconsistent with her evidence at trial.
It does not follow that the appeal should be allowed. A miscarriage of justice must be shown. An error in approaching the assessment of the complainant’s credit is not of itself a reason to reverse the verdict.
It was appropriate for the Judge to consider, as he did, the significance of any inconsistency between M’s evidence at trial and evidence of what she said to D about WJM’s conduct. To my mind that is the correct starting point. The first issue is whether there is an inconsistency, the next issue is whether there is an explanation that makes the inconsistency innocuous, the final issue is the significance of the inconsistency: see Driscoll v The Queen (1977) 137 CLR 517 at 536-537 Gibbs J. The second and third issues will often present as a single issue.
As to the apparent significance of any inconsistency, I agree with the Judge that it would not be at all surprising if M’s first complaint to D had been in terms of a single incident. It would not be surprising if she focussed on the attempt at intercourse, and said nothing about the long course of conduct that led up to it. Neither M nor D were cross-examined in a manner that tends to exclude that fairly obvious explanation for M putting her complaint that way, and for D thinking that there had been a single incident at Jeffries Street. There was no suggestion in D’s evidence that she asked M to elaborate on or to explain the first complaint.
That does not dispose of the inconsistency between M’s evidence at trial of her first complaint (“[WJM] had been touching me”) and her evidence about WJM’s conduct at Jeffries Street. That also is a matter to be considered. But, once again, M was not asked anything about this, even though it was apparent on her evidence in chief. And the prosecutor had asked her to confine herself to “the topic of your conversation”. The Judge did not refer to this aspect of the matter. However, in the circumstances that seems a subsidiary issue, and the Judge may well have thought it did not require separate consideration.
As to the second complaint, the Judge seems to have attributed the inconsistency between WJM’s evidence at trial that there had been a single incident at Sutcliffe Street, and D’s evidence that M “told me that he used to go into her room at night-time and touch her”, to D being distracted by the realisation that there had been past misconduct by WJM of which she had been unaware. It was open to the Judge to take that approach. Once again, there was no cross-examination of D that would tend to exclude that possibility.
When one bears in mind the very brief nature of D’s evidence about the complaints, and the likely impact on her of hearing these complaints, it would not be surprising if there was some misunderstanding as between her and M.
There is also the fact that D’s evidence of WJM’s admissions, when she tackled him about the first complaint, is evidence of what seemed to be admissions to a single incident. The Judge did not refer to this aspect of the matter. Indeed, he said that D’s evidence of WJM’s admissions corroborated much of M’s evidence. I agree that it did, but only if one was satisfied that this aspect of the evidence was not significant, and was satisfied that in a confrontation between D and WJM there might have been no reason for either of them to explore the number of times that misconduct had occurred. I consider it was open to the Judge to take this approach, and more broadly to take the approach that in considering what happened when D tackled WJM, the number of incidents about which M had complained was far from being the main issue.
The Judge identified other aspects of the evidence that led him to accept the evidence of M and D in preference to that of WJM. His reliance on these matters was not criticised by Ms Powell. They were matters on which the Judge was entitled to rely.
In particular, the Judge was entitled to conclude that the evidence about the short lived separation between WJM and D in 1991 tended to support the prosecution case. The same applies to D’s evidence about the circumstances of the confrontation in about March 2002.
In the end the challenge to the Judge’s verdicts comes down to the fact that in deciding that the inconsistencies between M’s evidence at trial about WJM’s conduct and her evidence and that of D about her complaints, the Judge did not identify and deal with all aspects of the inconsistencies. The same applies in relation to the Judge’s consideration of D’s evidence of admissions by WJM. But that has to be balanced against the fact that the Judge dealt with a number of aspects of the inconsistencies, and clearly was persuaded by other matters upon which he was entitled to rely. The Judge wrongly treated the failure to cross-examine M as precluding the use of the inconsistencies to impugn her evidence. But as to that my view is that if one accepts that the inconsistencies were explicable in a manner that did not provide a basis for them to reflect on M’s credit (as the Judge actually decided), there is nothing of significance in the point.
I return to the fact that this is an appeal against a verdict delivered by a Judge sitting without a jury. In R v ADW [2002] SASC 331; (2002) 84 SASR 178 I considered at some length the role of this Court sitting as a court of appeal in relation to a verdict entered by a Judge after a trial without a jury. I will not repeat what I said there, but I refer to and adopt what I said at [12] – [43].
In the present case it cannot be said that the verdict was unreasonable or cannot be supported having regard to the evidence. Nor has there been a wrong decision on a question of law. If the Judge’s decision about the effect of the failure to cross-examine M about the inconsistent statements is a relevant decision on a question of law, I am satisfied that that error of law could not have given rise to a miscarriage of justice, because the Judge in any event concluded that the matters relied upon had no tendency to impugn M’s credit.
That leaves the question of whether there has been a miscarriage of justice, as a result of the Judge’s failure to explore fully the issue of the inconsistencies in the prosecution evidence.
As I pointed out in ADW at [24], an appeal under s 353 of the Criminal Law Consolidation Act 1935 (SA) is not an appeal by way of re-hearing. On such an appeal it is not for this Court to substitute its own findings of facts for those of the trial Judge. The question is whether the trial Judge has made an error that leads to a miscarriage of justice. Again, as I pointed out in ADW the Court’s power in considering whether there has been a miscarriage of justice is a wide one: at [28]. In particular, it is not necessary to demonstrate that the verdict, on its merits, is flawed: ADW at [39].
The ultimate question is whether the failure of the Judge to consider all aspects of what I will call the inconsistency argument has given rise to a miscarriage of justice. The matter can be put in three different ways. First, has it resulted in the Judge failing to consider a significant aspect of the defence case? Second, is there a real risk of the Judge having been led into error in his ultimate conclusion by his failure to consider the relevant matters? Third, if the Judge had summed up to the jury along the lines of his reasons, raising only the matters that he identified in his reasons, would the Court conclude that the jury had been misdirected?
I agree that the inconsistencies were a significant aspect of the defence case. But I am satisfied, in the end, that the Judge has considered the substance of the defence case on this issue. Ms Powell rightly identified aspects of the argument to which the Judge has not referred, but assessing the Judge’s reasons as a whole I consider that he has sufficiently dealt with this aspect of the defence case.
As to the second question, I do not agree that the matters that the Judge failed to deal with are of such significance that there is a real risk of the Judge’s ultimate conclusion being flawed. Once again, reviewing the Judge’s reasons as a whole I am satisfied that his conclusion could not have been affected by the aspects of the argument to which he did not refer.
As to the third question, bearing in mind that it is not necessary for a judge to spell out to the jury all aspects of the factual issues that they have to decide, I am not persuaded that a direction to the jury that brought to the jury’s attention the matters that the Judge dealt with, and did not refer to the aspects of the submissions that he overlooked, would be an erroneous direction on the facts.
Conclusion
For all those reasons I consider that the omissions in the Judge’s reasons are not sufficient to lead to the conclusion that the verdict should be set aside. The appeal should be dismissed.
BESANKO J: I agree that this appeal should be dismissed. I agree with the reasons of the Chief Justice.
WHITE J: I agree with the order by the Chief Justice and with his reasons. There is nothing which I wish to add.