R v Morrison - [2007] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MORRISON
[2007] SASC 168
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
18 May 2007
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION
Appeal against conviction - appellant convicted of murder and wounding with intent to cause grievous bodily harm - trial Judge made finding that appellant was unable to reason about the wrongness of his actions with a moderate degree of sense and composure, due to temporary intoxication but not due to a mental impairment as defined by section 269GB(1)(a) of the Criminal Law Consolidation Act 1935 (SA) - whether the Judge erred in drawing conclusions as to appellant's intent from the evidence as to the number of blows struck, their location, and the force with which they were inflicted - whether an element of each offence was that the accused was aware of or appreciated the wrongness of his conduct - Held: appeal dismissed - Judge did not err by drawing an inference from evidence of conduct of the appellant - it is not an element of either offence that the accused was aware of or appreciated the wrongness of his conduct.
Criminal Law Consolidation Act 1935 (SA) s 21, s 269A, s 269G, s 269GB, referred to.
R v Stapleton (1952) 86 CLR 358; R v O’Connor (1980) 146 CLR 64; R v Porter (1936) 55 CLR 182; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; R v Hoskin (1974) 9 SASR 531; Sherras v De Rutzen (1895) 1 QB 918; R v Turnbull (1944) 44 SR (NSW) 108, considered.

R v MORRISON
[2007] SASC 168
Court of Criminal Appeal: Gray, Sulan and White JJ
GRAY J.

This is an appeal against conviction.
The appellant was charged with the murder of Jaynee Sheridan and the attempted murder of Gwenda Barty on 22 October 2004. He was also charged in the alternative with wounding Ms Barty with the intention of causing her grievous bodily harm.
The appellant elected to be tried by judge alone. On 17 November 2006 the learned trial Judge convicted the appellant of the murder of Ms Sheridan. With respect to the charge concerning Ms Barty the Judge acquitted the appellant of the charge of attempted murder but entered a verdict of wounding with intent to cause grievous bodily harm.
At the commencement of the trial, the defence raised issues as to the appellant’s mental competence to commit the offences. Pursuant to section 269G of the Criminal Law Consolidation Act 1935 (SA), the Judge proceeded to hear and determine the objective elements of the offences. The Judge reached the conclusion that the objective element had been established beyond reasonable doubt.[1] This finding has not been challenged on appeal.
[1] R v Morrison [2006] SASC 344 at [5].
In accordance with section 269GB(1)(a) of the Criminal Law Consolidation Act, the Judge then embarked on a hearing of the appellant’s mental competence to commit the offences. In this respect the Judge concluded:[2]
I find that the accused knew the nature and quality of his actions and he was able to control his conduct. I accept the evidence that he was unable to reason about the wrongness of his actions with a moderate degree of sense and composure. However, I find that this was due to temporary intoxication and not a mental impairment as defined in the Act.
It has not been established on the balance of probabilities that the accused was, at the time of the alleged offences, mentally incompetent to commit the offences.
It follows that the presumption of mental competence has not been displaced.
[2] R v Morrison [2006] SASC 344 at [89]-[91].
There was no complaint about these findings on the hearing of the appeal.
The remaining issue to be determined related to the subjective elements of the offences. As the Judge pointed out the phrase “subjective element” is defined as meaning “voluntariness, intention, knowledge or some other mental state that is an element of the offence”.[3]
[3] Criminal Law Consolidation Act 1935 (SA), section 269A
The Judge addressed the elements of the offence of murder:[4]
In order for the accused to be found guilty of murder, it must be proved beyond reasonable doubt that he caused the death of the deceased deliberately and unlawfully while, at the same time, intending to cause death or grievous bodily harm.
[4] R v Morrison [2006] SASC 344 at [93].
The Judge identified the elements of the offence of attempted murder as follows:[5]
In the case of attempted murder, the prosecution must prove that the accused deliberately and unlawfully carried out an act or series of acts with the intention of killing the victim. Those acts must be proximate to the completed offence in the sense that they must amount to more than mere preparation for that offence.
[5] R v Morrison [2006] SASC 344 at [94].
As earlier observed, the Judge reached the conclusion that at the time of the alleged criminal conduct the appellant was temporarily intoxicated following the ingestion of amphetamines. This led the Judge to consider the effect of intoxication:[6]
As explained in The Queen v O’Connor (1980) 146 CLR 64, intoxication by drugs is relevant to each of the offences to which I have referred, as well as to the offence of wounding with intent to cause grievous bodily harm, which is an alternative to the offence of attempted murder. It is relevant in deciding whether the accused’s actions were voluntary acts in the sense that they were accompanied by an exercise of the will and whether the accused had the intention to do the physical act or acts charged: O’Connor at 69. It is also relevant as a factor to be taken into account in determining whether the specific intention for the particular offence under consideration has been established beyond reasonable doubt.
Although it is not the sole consideration, the level of the accused’s awareness and understanding of his actions at relevant times is a factor to be taken into account in determining whether he acted voluntarily and with the intent required for a particular offence.
[6] R v Morrison [2006] SASC 344 at [96]-[97].
Before coming to discuss the Judge’s reasons for his verdicts, it is convenient to outline the factual circumstances. In this respect the Judge made many findings of fact that were not challenged on appeal. In the following summary I have drawn extensively on those unchallenged findings.
Ms Sheridan was 58 years of age at the time of her death. She lived at Brahma Lodge. Ms Sheridan formed a relationship with the appellant in the months prior to her death. Various people stayed with her at different times, including the appellant. There was evidence that Ms Sheridan had run brothels and an escort agency. According to the evidence, she sold or supplied drugs, particularly amphetamines. At the time of her death, Ms Sheridan was on home detention bail.
Ms Barty had known the appellant for approximately two years before the alleged offences. She met Ms Sheridan through the appellant. She had become a close friend of Ms Sheridan. On the day before the offences, the appellant took Ms Barty’s car from Ms Sheridan’s house on two occasions without Ms Barty’s permission.
On 22 October 2004, Ms Sheridan asked Michael Young, a friend, to collect the appellant and bring him to her home. Mr Young drove his car to Findon, picked up the appellant and took him to Brahma Lodge. Mr Young did not go inside. He left the appellant at the house.
The appellant entered the house, hugged Ms Barty and apologised for having earlier taken her car. The appellant then spoke to Ms Sheridan and said words to the effect, “I suppose all the cameras are on”. Ms Sheridan had installed security cameras outside the house and in the lounge room and these were connected to a monitor in her bedroom. Ms Sheridan told the appellant that the cameras were not turned on at this time.
Ms Barty said that as she then walked towards the bathroom, she heard Ms Sheridan twice say “Put the knife down, Gerald”. When she went back to the lounge she saw the appellant and Ms Sheridan talking. Ms Sheridan told her to telephone Mr Young. Ms Barty did not see the appellant holding a knife. Ms Barty went outside and made a mobile telephone call to Mr Young.
When Ms Barty returned to the lounge, the appellant and Ms Sheridan seemed calmer. Ms Barty then went to the toilet where she took some methylamphetamine. She then said to Ms Sheridan, “I’m going to go and sit out in the car in the carport. If you need me, scream”.
Not long after she left the house, while sitting in her car, Ms Barty heard Ms Sheridan scream. She could hear her calling out, “Stop, Gerald. It’s me, Gerald”. Ms Barty ran into the house and saw Ms Sheridan on the floor with the appellant standing over her stabbing her with a knife. He was calling Ms Sheridan a “demon”.
Ms Barty screamed at the appellant. She pushed him away. Ms Sheridan crawled towards her bedroom. The appellant said to Ms Barty, “We have to go. They’re coming. Gwenda we have to leave, we have to go”.
At about this time, the appellant told Ms Barty to go and check on Ms Sheridan. She went to the bedroom and saw Ms Sheridan lying on the floor. Ms Sheridan told Ms Barty that she needed help. Ms Barty went to the telephone. The appellant asked her what she was doing. She said she was calling an ambulance and he said, “No”, grabbed the telephone and stabbed her in the back. Ms Barty fell to the floor. She told the appellant that she was going to die. He told Ms Barty that she was not going to die and to go and sit in the lounge room.
Ms Barty said she wanted to go out and get her cigarettes and the appellant responded that there would be cigarettes in one of the drawers in the room. She said she wanted to get her own cigarettes and he said “No”. Ms Barty started to walk backwards towards the front door. The appellant lunged at her and stabbed her in the stomach. She removed the knife from her body and ran to the house next door. While the occupants of the house were attending to her, the appellant came towards her, asked if she was alright and asked why she and Ms Sheridan had been fighting.
Police and ambulance officers arrived shortly afterwards. Following a struggle, the appellant was arrested. Ms Sheridan died a short time later.
The trial Judge’s critical findings with respect to the subjective elements included the following:[7]
[7] R v Morrison [2006] SASC 344 at [98], [101]-[104], [117]-[128].
It is clear from the evidence, which I accept, that the accused picked up the large knife in order to use it as a weapon. He inflicted two deep wounds on the deceased with the knife and a further two wounds on Ms Barty.
…
As I have pointed out, there is no doubt that the accused exhibited psychotic conduct from time to time and that this was observed by some of the witnesses. I have referred to the history of hearing voices. Further, on the day before the alleged offences, the accused took Ms Barty’s car without her permission on two occasions and, on one of these occasions, he reported to the police that there were bodies in the panels of the vehicle.
Despite this, there was evidence of purposive conduct on these occasions. The accused was apparently able to drive the vehicle on each occasion and, on the second occasion, he wired the vehicle so that he could drive it without the ignition key. When Ms Barty found out that the vehicle had been taken, he disconnected the wiring so that she could use her key.
After considering the evidence of the events of the alleged offences, it is clear to my mind that the accused, despite his apparently psychotic conduct, was acting in a number of respects in a purposive manner.
I am satisfied beyond reasonable doubt that he intentionally picked up the knife and that he deliberately stabbed Ms Sheridan twice and Ms Barty twice realising that he was stabbing them. I find that he knowingly used considerable force in inflicting these wounds to the two women. ... I am satisfied that when he stabbed each woman he was aware that he was stabbing a human being.
Further instances of purposive conduct appear from the attack on Ms Barty. The accused stabbed her when he realised she was ringing up for the ambulance. He said, “No” and stabbed her on the first occasion. He then appears to have been unwilling to allow her to go outside when she said she wanted to get cigarettes from her car. He said there were cigarettes in the lounge and he stabbed her again as she was backing out through the front door.
The accused’s awareness is further demonstrated by the fact that, at one stage after the stabbing of Ms Sheridan, he asked Ms Barty how Ms Sheridan was. There is an indication of his awareness of what he had done when, subsequently, he continually asked for forgiveness.
I have made these findings on my own assessment of the evidence, but I note that Dr Raeside saw actions of this nature as indicating a level of the awareness by the accused of his physical actions.
There is a clear distinction between knowledge of the wrongness of actions on the one hand and voluntary action on the other. Nevertheless, when considering whether the accused’s actions were conscious and voluntary, I have taken into account the view of the psychiatrists that the accused was not able to reason about the wrongness of his actions with a moderate degree of calm and composure. However, despite the impairment of his judgment as to wrongness, I have no reasonable doubt about the voluntariness of his actions. I find that when he stabbed Ms Sheridan and Ms Barty he acted consciously and deliberately.
There remains the question of intention. Obviously, intention is not the same as conscious voluntary action. However, the evidence as to awareness and the purposive conduct of the accused is relevant to both issues.
I have recorded my findings that the accused consciously and deliberately stabbed both women. I am satisfied that he did so to inflict harm on them. In the case of Ms Sheridan, I am satisfied beyond reasonable doubt that he at least intended to cause her grievous bodily harm. I rely on the evidence as to the number of blows, their location and the force with which they were inflicted.
The same reasoning applies to the charges relating to Ms Barty. There is evidence of the purposive conduct of the accused in his actions and the remarks made by him prior to stabbing her. I am satisfied that the accused intended to cause her grievous bodily harm. I have a reasonable doubt as to whether the accused intended to kill Ms Barty. The accused’s actions in relation to her appear to be a reaction to her use of the telephone and her attempt to leave the house. No other motive is evident.
In assessing whether the accused was acting consciously and voluntarily and, further, whether he acted with the specific intent relevant to particular offences, I have taken into account the degree of methylamphetamine intoxication and the apparently psychotic state of mind resulting from it. However, the evidence as a whole requires the findings which I have made.
These findings led to the recording of the convictions for the murder of Ms Sheridan and for the wounding of Ms Barty with the intention of causing grievous bodily harm.
Issues arising on the appeal
The primary issue on appeal concerned the subjective elements of the offences. It was said that an element of each offence was that the accused was aware of or appreciated the wrongness of his conduct. However, before discussing this complaint it is convenient to address a discrete complaint raised by counsel for the appellant. He sought to challenge the Judge’s reliance on drawing conclusions as to the appellant’s intent from the evidence as to the number of blows struck, their location, and the force with which they were inflicted.[8]
[8] R v Morrison [2006] SASC 344 at [126] (footnotes omitted).
Counsel submitted that the Judge was doing no more than “presuming intent” from that conduct. In that respect, counsel drew attention to observations of Dixon CJ and Webb and Kitto JJ in Stapleton:[9]
The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous. For it either does no more than state a self evident proposition of fact or it produces an illegitimate transfer of the burden of proof of a real issue of intent to the person denying the allegation.
[9] R v Stapleton (1952) 86 CLR 358 at 365.
I reject the submission that the Judge was giving effect to a maxim or presumption. The Judge identified evidence of conduct of the appellant from which he drew an inference as to intention. This course was entirely unexceptional. There was no transfer or reversal of the burden of proof.
Turning to the primary issue, counsel for the appellant submitted that an error of law had been made by the trial Judge. It was argued that in the circumstances of the present case the prosecution had to establish beyond reasonable doubt with respect to the offences of murder and of wounding with intent that the appellant was aware of or had an appreciation of the wrongness of his conduct – this awareness or appreciation of wrongness was said to be an element of each offence.
Counsel submitted that in O’Connor,[10] the members of the High Court had identified an awareness or appreciation of wrongness as an element of the offence of murder. Attention was drawn to the finding of the Judge in the present case, which was earlier referred to, that the appellant “was unable to reason about the wrongness of his actions with a modest degree of sense and composure”. It was said that this element of the offences – awareness or appreciation of wrongness – had not been proved beyond a reasonable doubt. Accordingly it was contended that the appellant was entitled to be acquitted of the charge of murder and of the charge of wounding with intent.
[10] R v O’Connor (1980) 146 CLR 64.
To support his submission, counsel for the appellant drew attention to a passage in O’Connor in the judgment of Barwick CJ:[11]
For my part, I am unable to accept that the voluntary nature of the taking of the alcohol or other drug, whether or not it be an act of a wanton or reckless kind, supplies the mens rea for the commission of a crime which in the case supposed may have been done involuntarily or without the requisite intent.
[11] R v O’Connor (1980) 146 CLR 64 at 85.
Counsel also drew attention to the observations of Stephen J:[12]
If the conventional division into actus reus and mens rea is to be adhered to, the relevant mental element in crime will not be found exclusively in the mens rea, since there will be no actus reus if the conduct of which it consists was involuntary: only voluntary conduct can constitute the actus reus. Then, superadded to this requirement that the conduct should be voluntary, is the requirement that there should be shown to exist that mental element which is involved in the concept of mens rea. Its precise content may differ from crime to crime. It has been described as the possession of a criminal intention or, as Sir Frederick Jordan put it in R v Turnbull, knowledge on the part of the accused “that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing”. Recklessness will also serve to supply it.
[12] R v O’Connor (1980) 146 CLR 64 at 97 (footnotes omitted).

When pressed, counsel for the appellant conceded that the above passages do not refer to an awareness or appreciation of wrongness as being an element of the offence of murder. However, counsel submitted that it was necessarily implicit in the above passages that an awareness of or appreciation of wrongness was an element of the offence of murder.
Counsel for the appellant also drew attention to observations in Porter[13] and Stapleton,[14] said to illustrate that an element of the offences was an awareness of wrongness. However, those decisions were concerned with the criteria to be established with respect to the defence of insanity. Neither authority suggests that awareness or appreciation of wrongness is an element of either offence of which the appellant in the present case has been convicted. Neither authority supports the proposition that for the appellant to be convicted of either crime, the prosecution had to prove that the appellant was aware of or appreciated the wrongness of his conduct.
[13] R v Porter (1936) 55 CLR 182.
[14] R v Stapleton (1952) 86 CLR 358.
In the present case, the prosecution had to prove beyond reasonable doubt that the appellant knew that he was doing the criminal acts with which he was charged, that he knew all the facts constituting the ingredients to make the acts criminal, and that those acts were involved in what he was doing.
The prosecution was required to prove that the act or acts of the appellant that caused the death of Ms Sheridan were conscious and voluntary acts. Any act of the appellant that was unconscious, or involuntary, could not amount to a crime. The crime consisted of the doing of a deliberate act or acts. In this respect the Judge made findings that the conduct of the appellant, with respect to his victims, was both conscious and deliberate. Again, these findings were not challenged on appeal.
The crime of murder required the prosecution to prove that the act or acts that caused the death were undertaken with a particular guilty mind. In the present case the prosecution needed to prove that the appellant had a relevant guilty mind – one in which the appellant intended either to kill Ms Sheridan or to cause her grievous bodily harm.
It was not necessary that the guilty mind be directed against the person killed, or indeed, against any particular person. In the present case such a guilty mind existed if the appellant intended to kill or do grievous bodily harm to any other human being at the time when he did the act that caused the death of Ms Sheridan.
“Grievous bodily harm” means really serious bodily harm. It is not a defence to murder where an accused intends to inflict really serious bodily harm but does not intend to kill. If the appellant’s intention was either to kill or to cause really serious bodily harm then he had the necessary guilty mind to constitute this element of the crime of murder.
In summary, the prosecution had to prove two quite separate states of mind on the part of the appellant - that his conduct was conscious and voluntary, and that he intended to kill or do grievous bodily harm. Finally, in order to constitute the crime of murder the killing had to be done without lawful justification or excuse. The Judge was correct to conclude that the prosecution established these matters beyond a reasonable doubt.
In respect to the attack on Ms Barty, the Judge was satisfied beyond reasonable doubt that the appellant intended to inflict harm on her and that he intended at least to cause her grievous bodily harm. To adopt an expression used by the Judge, he was satisfied beyond reasonable doubt on the evidence before him that the appellant engaged in relevantly purposive conduct.
The Judge was correct to conclude beyond reasonable doubt that the appellant stabbed Ms Barty intending to cause Ms Barty grievous bodily harm.
The submission of counsel for the appellant that it was necessary for the prosecution to go further and prove that the appellant was aware of or appreciated the wrongness of his conduct should be rejected. This is not an element of the offence of murder. It is not an element of the offence of wounding with intent.
Conclusion
For the foregoing reasons this appeal should be dismissed.
SULAN J: I agree with the reasons of Gray J. I would dismiss the appeal.
WHITE J There were two propositions advanced by the appellant which are central to this appeal against conviction.
The first is that an essential element in the offence of murder, and in the offence of wounding with intent to do grievous bodily harm, is knowledge or awareness by the accused, at the time of his conduct, of the wrongfulness of that conduct. The second is that, this being so, the judge’s finding in the trial of the accused’s mental competence to commit the offences that the accused could not reason with a moderate degree of sense and composure about the wrongness of his actions meant that the necessary element of knowledge could not be established in this case.
I would reject the first of these propositions. In a trial for the offence of murder, it is not necessary for the prosecution to prove that the accused knew, at the time of the act resulting in death, that it was wrong to kill. In a trial of the offence of wounding with intent to do grievous bodily harm, it is not necessary for the prosecution to prove that at the time of the infliction of the wound, the accused knew that it was wrong to wound. The consequence of this is that the second proposition advanced by the appellant also fails.
Leaving aside forms of the offence of murder which are not presently relevant, the elements of the offence may be stated quite shortly.
“Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm.”[15]
The mental state to be proved does not include knowledge of the wrongfulness of killing or of inflicting grievous bodily harm.
[15] Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661-2 per Wilson, Dawson and Toohey JJ.
The offence of wounding with intent to do grievous bodily harm is a statutory offence. Section 21 of the Criminal Law Consolidation Act 1935 (SA) in the form in force on 22 October 2004 provided as follows:
Any person who unlawfully and maliciously, by any means –
(a)     wounds any person;
(b)     causes any grievous bodily harm to any person;
(c)     shoots at any person;
(d)     attempts to discharge loaded arms of any kind at any person,
with intent to –
(e)     maim, disfigure, disable, or do other grievous bodily harm to, any person;
(f)    resist, or prevent the lawful apprehension or detainer of, any person,
shall be guilty of an offence and liable to be imprisoned for life.
Section 21 contains a statement of the mental element to be proved, ie, an actual intention to injure a person in one of the specified ways, or an actual intention to resist or prevent the arrest or retention of any person. Reckless indifference to one or other of these consequences is insufficient.[16] Knowledge of the wrongfulness of the conduct comprising the offence is not specified as an element of a s 21 offence. Nor is there an applicable common law presumption that knowledge of wrongfulness, unless displaced by clear words, is an element of the offence.
[16] R v Hoskin (1974) 9 SASR 531.
In a well-known passage in Sherras v De Rutzen[17] Wright J said:
There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.[18]
This passage is commonly cited in support of a submission that a mental element of some kind is, in the absence of an indication of displacement, to be presumed in relation to every offence. It is not authority for the proposition that knowledge of wrongfulness is to be presumed as an element of an offence in every case.
[17] (1895) 1 QB 918.
[18] Ibid at 921.
In support of the proposition that the appellant’s knowledge of wrongfulness of the killing and wounding had to be proved, Mr Braithwaite, who appeared for the appellant, referred to two authorities. The first was R v Porter[19] in which the directions to the jury by Dixon J concerning the elements of an insanity defence are reported. It is not necessary to cite the well-known passage. It is plain that when Dixon J invited the jury to consider whether the accused could know whether his act was wrong if he could not reason with a moderate degree of sense and composure, he was doing so in the context of a direction concerning insanity, and that he was not addressing the elements of the direction of murder.
[19] (1936) 55 CLR 182.
The second authority was R v O’Connor[20] in which Stephen J said:
If the conventional division in to actus reus and mens rea is to be adhered to, the relevant mental element in crime will not be found exclusively in the mens rea, since there will be no actus reus if the conduct of which it consists was involuntary : only voluntary conduct can constitute the actus reus. Then, superadded to this requirement that the conduct should be voluntary, is the requirement that there should be shown to exist that mental element which is involved in the concept of mens rea. Its precise content may differ from crime to crime. It has been described as the possession of a criminal intention or, as Sir Frederick Jordan put it in R v Turnbull (1944) 44 SR (NSW) 108 at 109, knowledge on the part of the accused “that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing”. Recklessness will also serve to supply it.[21]
[20] (1980) 146 CLR 64.
[21] Ibid at 97.
Mr Braithwaite emphasised the reference in this passage to the knowledge of the accused and submitted that it was a reference to knowledge of wrongfulness. It is evident, however, that neither Jordan CJ nor Stephen J were referring to awareness by the accused of the wrongfulness of his act. This is made plain by the passage in the judgment of Jordan CJ in Turnbull which immediately follows that quoted by Stephen J:
If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged.[22]
In my view, neither authority supports the proposition for which the appellant contends.
[22] (1944) 44 SR (NSW) 108 at 109.
In relation to the other submissions of the appellant, I do not wish to add to the reasons of Gray J.
In my opinion, the appeal against conviction should be dismissed.