Tennant v The Queen - [2020] SASCFC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
TENNANT v THE QUEEN
[2020] SASCFC 26
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Hughes)
23 April 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE
Appeal against sentence for an offence of manslaughter by unlawful and dangerous act – whether the sentence imposed was manifestly excessive.
Held (per Bampton J, Kourakis CJ and Hughes J agreeing): Appeal dismissed – the sentence imposed by the Judge was not manifestly excessive.
Sentencing Act 2017 (SA), referred to.
R v Liddy (No 2) (2002) 84 SASR 231, applied.
R v Tennant [2019] SASC 150; Coleman v Zanker (1991) 58 SASR 7; Considine v Kirkpatrick (1971) SASR 73; Ward v The Queen [2013] NSWCCA 46; R v Peerdikoyiannis, Condo & Peabody [2011] SASCFC 82; R v Duke [2000] SASC 254; R v Lupoi (1984) A Crim R 183; R v Piotrowski (1990) 156 LSJS 254; Munda v Western Australia (2013) 249 CLR 600; Kentwell v The Queen (2014) 252 CLR 601, considered.

TENNANT v THE QUEEN
[2020] SASCFC 26
Court of Criminal Appeal: Kourakis CJ, Bampton and Hughes JJ

KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by Bampton J.
BAMPTON J: Adriana Betty Tennant was charged with murder. She pleaded guilty to manslaughter on the morning of her trial before a Judge sitting alone. The plea was not accepted and the matter proceeded to trial. Ms Tennant was found not guilty of murder but guilty of manslaughter by unlawful and dangerous act.
Ms Tennant was sentenced to 10 years imprisonment reduced to nine years on account of her guilty plea. As mandated by s 47(5)(d) of the Sentencing Act 2017 (SA) (“the Sentencing Act”), a non-parole period four-fifths the length of the head sentence of seven years, two months, and 12 days was fixed. Ms Tennant was also disqualified from holding or obtaining a driver’s licence for 12 years from the date she is released from custody.
Ms Tennant appeals with permission on ground 1, which asserts that the sentence is manifestly excessive. The following proposed grounds 2 to 12 have been referred to this Court for permission:
2.The conceptual starting point of 10 years, prior to the Discount for Plea, was such as to negate, nullify or subsume the appropriate purpose and effect of the discount.
3.The Judge erred in affording disproportionate emphasis and weight to the victim impact statements, and/or permitting to stand within them the inclusion of inappropriate and irrelevant material, to such a degree that the exercise of the sentencing discretion miscarried.
4.The Judge erred, in affording disproportionate weight to “the context in which the events that afternoon [of the offending] unfolded”, or in considering irrelevant aspects of the same, to such a degree that the exercise of the sentencing discretion miscarried.
5.The Judge erred in characterising the offending as being “in a very serious category for the crime of manslaughter by unlawful and dangerous act”, to the degree that its magnitude was explicitly or impliedly elevated over and above the inherent serious of the offence per se.
6.The Judge erred in affording disproportionate weight to the involvement of a motor vehicle and/or in equating the driving of a motor vehicle to use of a weapon.
7.The Judge erred in that the characterisation of the offence, and/or the approach to sentencing, did not properly reflect and/or went beyond the express inability of the Court to make positive findings as to the specific intention of the Appellant at the time of impact.
8.The Judge erred in the interpretation, applicability, and/or purported application of, or any principle attributable to, Munda v Western Australia (2013) 249 CLR 600, in respect of the Applicant herself, or the Applicant’s offending.
9.The Judge erred in that she gave no, or no appropriate consideration or weight to the Appellant’s lack of criminal history.
10.The Judge erred in that she gave no, or no appropriate consideration or weight to the Appellant’s prospects for rehabilitation.
11.The Judge erred in that she gave no, or no appropriate consideration or weight, to the probable impact of the sentence upon a middle-aged Aboriginal woman with a deprived and traumatic background and on-going health problems.
12.The Judge erred in that the sentence imposed does not, or does not adequately, reflect the overall personal circumstances of the Appellant, including her perceived intellectual disability.
Proposed ground 2 was not argued as a separate ground of appeal. The Court was informed that proposed ground 5 would not be argued separately to proposed ground 6, and it was conceded that proposed grounds 9 to 12 amount to particulars of ground 1.
For the reasons to be given, I would dismiss the appeal on ground 1 and refuse permission to appeal on all proposed grounds.
The circumstances of the offending and the trial Judge’s findings
On the evening of Friday 24 November 2017, Ms Tennant was driving a white Mitsubishi Triton, fitted with a bull bar and weighing almost two tonnes, (“the Mitsubishi”) along Park Terrace, Quorn. She was accompanied by her husband, Derek Tennant, who was seated in the front passenger seat. At about 8.00 pm, Ms Tennant drove the Mitsubishi past a red Holden sedan (“the Holden”) driven by Angie Dowling. In the front passenger seat of the Holden, next to Ms Dowling, was her partner, Nathan Freer. Ms Dowling and Mr Freer’s two teenage sons were seated in the rear of the vehicle. As the vehicles passed each other, Mr Tennant stuck his fingers out at the Holden driven by Ms Dowling. Ms Dowling, at the request of Mr Freer, performed a U-turn and pursued the Mitsubishi. A dashcam installed on the dashboard of the Mitsubishi recorded the incident giving rise to the charge. The dashcam recording was in evidence at trial.
After Ms Dowling began to pursue the Mitsubishi, Ms Tennant stopped in the middle of the road and braked. Ms Dowling stopped the Holden behind the Mitsubishi and Mr Freer got out of the Holden. Mr Freer threw a beer bottle at the Mitsubishi. The trial Judge, in her reasons for judgment, referred to the thud of the bottle as it hit the rear of the Mitsubishi being heard on the dashcam recording almost at the same moment that Ms Tennant began to drive off down Park Terrace. Mr Tennant then told Ms Tennant to pull over. Ms Tenant pulled off to the side of the road onto a dirt verge. Mr Tennant got out of the vehicle. Ms Tennant, who remained in the vehicle, put on the right indicator and commenced a 270 degree turn, driving the Mitsubishi directly into Mr Freer, who was brandishing a beer bottle and approaching the Mitsubishi. Mr Freer was thrown onto the bonnet of the Mitsubishi and fell beneath it. The Mitsubishi then ran over Mr Freer and crashed through a chainmesh fence, before stopping at the bottom of an embankment. Mr Freer died very shortly thereafter from multiple injuries. The Judge noted, by reference to the dashcam footage that the entire incident, from the moment Ms Tennant commenced the 270 degree turn to the moment of impact with Mr Freer, took “a period of only approximately eight seconds”.
Analysis of blood samples taken from Ms Tennant following the incident returned negative results for the presence of alcohol and drugs.
The Judge, in her reasons for judgment, said that she was satisfied that Ms Tennant steered the Mitsubishi directly into the path of Mr Freer but that she was not sure that Ms Tennant intended to do more than assault Mr Freer at that time.[1] She detailed that there had been no history of anything other than what can be described as nuisance behaviour between Ms Tennant and Mr Freer and his family prior to the events of 24 November 2017.[2] Her Honour said:[3]
There seems little doubt that the behaviour of the deceased on that particular afternoon, in throwing the beer bottle at the Mitsubishi Triton, agitated both Mr Tennant and the accused. Nevertheless, to conclude, in approximately 30 seconds between the throwing of the bottle and Mitsubishi Triton hitting the deceased, that the accused formed a murderous intent would be difficult.
Indeed, the events unfolded so rapidly that I am not convinced that the accused formed any specific intention at all other than to knock the deceased down. Furthermore, given the trajectory of the vehicle from the approximate point of impact to the tree, there remains some doubt in my mind as to whether, at some point, the accused lost control of the vehicle.
…
Insofar as it is necessary for the prosecution to prove under the second element that the driving was both voluntary and deliberate, I have found on the basis of the evidence that the accused deliberately and intentionally drove the vehicle into the path of the victim who was walking towards her.
I am also satisfied that, in the circumstances, the driving of the accused in that manner was unlawful. It was unlawful because, in effect, the accused was using her vehicle as a weapon to assault the victim. I find it proved beyond reasonable doubt that she intended to hit him and that is exactly what she did.
Her Honour concluded:[4]
Finally, an act will be considered to be dangerous for the purpose of the fourth element if a reasonable person, in the accused’s position, would have realised that her actions would have exposed the deceased to an appreciable risk of serious injury. On all of the evidence before me, I am satisfied that the driving in these circumstances was dangerous. There is no doubt in my mind that a reasonable person, in the position of the accused, would have realised that she was exposing the deceased to an appreciable risk of serious injury by driving a vehicle, which weighed almost two tonnes, directly into his path with the intention of hitting him.
[1]    R v Tennant [2019] SASC 150 at [46].
[2]    R v Tennant [2019] SASC 150 at [46].
[3]    R v Tennant [2019] SASC 150 at [46]-[47], [54]-[55].
[4]    R v Tennant [2019] SASC 150 at [56].
The evidence at trial regarding what the Judge referred to as “what can be described as nuisance behaviour between Ms Tennant and Mr Freer and his family prior to the events of 24 November 2017” was given by a police officer.
The appeal
The nub of Ms Tennant’s appeal is that the Judge erred in her characterisation of the offending and the weight afforded to the context in which it unfolded and as a result imposed a manifestly excessive sentence. The following proposed grounds argued by Ms Tennant are effectively particulars of the complaint of manifest excess.
Proposed ground 3 – victim impact statements
Ms Tennant referred to victim impact statements read to the Court prior to submissions on sentence. Ms Tennant’s counsel specifically questioned the desire expressed by two victims in their respective statements for Ms Tennant to be sentenced to life imprisonment. The Judge dismissed the concerns raised by counsel as “nonsense”.
It was submitted that, despite the maximum penalty for manslaughter being life imprisonment, it was wholly inappropriate for victims’ comments regarding penalty to be read in open court. It was argued that the disparity between any reasonable sentence for manslaughter and the suggestions of life imprisonment unacceptably interfered with the requirement that justice be seen to be done. It was submitted that it did so by diminishing the necessary separation between court and witness and created an impression of “upward pressure” upon the sentence imposed. In particular, it was contended that the comments of Ms Dowling in her statement, might reasonably be seen as inviting the Court to revisit and, to an extent, revise the findings already made in acquitting Ms Tennant of murder.
Ms Tennant argued that, in declining to rule upon the victim impact statements and/or to require redaction of the impugned comments, the Court failed to dispel uncertainty as to the degree to which inappropriate sympathy or favour towards Mr Freer’s family impacted on the length of sentence. Failing to do so, it was submitted, amounts to a process error requiring the sentencing to be revisited.
The Sentencing Act provides for victim impact statements to be tendered to a sentencing judge setting out the impact of the injury and the loss and damage on that person and the person’s family. Section 14(6) of the Sentencing Act provides that the “validity of a sentence is not affected by non‑compliance or insufficient compliance with this section”. Section 16 of the Sentencing Act provides:
(1)A statement to be provided to a court under section 14 or 15 must comply with and be provided in accordance with rules of court.
(2)Nothing prevents a statement to be provided to a court under section 14 or 15 from containing recommendations relating to the sentence to be determined by the court.
…
The purpose of victim impact statements must be kept in mind. They serve to remind sentencing judges of, and to emphasise the consequences of, the defendant’s offending. They also acknowledge the suffering of victims and provide a process which may assist in their recovery. In sentencing, the penalty imposed must be one that is appropriate in all of the circumstances, taking into account all relevant considerations of the offence and the offender. A victim’s sentencing recommendation is not one of those considerations. The views of victims as to penalty cannot therefore increase the sentence beyond that which would otherwise have been an appropriate sentence.
Any irrelevant or prejudicial material in a victim impact statement does not affect a sentence unless it is shown that the Judge had regard to it.[5] There is no indication that the Judge did so.
[5] R v Liddy (No 2) (2002) 84 SASR 231 at [63]-[65].
In response to Ms Tennant’s counsel’s objection regarding the recommendations as to penalty by Mr Freer’s mother and Ms Dowling, the Judge acknowledged her duty to sentence in accordance with the Sentencing Act. Her Honour said:[6]
If that’s your only objection and that’s an objection, I might add, that’s frequently made in victim impact statements, let me make it clear it’s the duty of the court to sentence according to the statutory parameters in the Sentencing Act. I have been a judge for nearly 20 years, I will sentence in accordance with the law in the best way I know how.
[6] Transcript of proceedings, R v Adriana Betty Tennant (Supreme Court of South Australia, SCCRM-18-410, Justice Kelly, 25 September 2019) at 3-4.
The sentencing remarks notably only detail the loss and emotional trauma spoken about by Mr Freer’s family in their victim impact statements. There is no reference to the views expressed by Mr Freer’s mother or Ms Dowling as to penalty.
I agree with the Director that there is no reason to suppose that her Honour had regard to these views as to penalty in any improper way such that the sentencing discretion miscarried.
Proposed ground 4 – nuisance behaviour between the Tennant and the Freer families
Ms Tennant referred to the evidence at trial of there being nuisance behaviour between the Tennant family and Mr Freer’s family leading to the events that result in Mr Freer’s death. It was submitted that the evidence was vague and general, but it alluded to incidents and police reports suggesting nuisance behaviour on the part of both families. Ms Tennant said that this evidence was referred to by the Judge in her judgment in neutral terms.[7] It was submitted that because of the approach at trial to restrict the detail elicited, issue was not joined by the defence as to who was at fault in respect of the history between the two families.
[7] R v Tennant [2019] SASC 150 at [22]-[23].
Ms Tennant complained that the sentencing remarks, however, suggest that the nuisance behaviour was more of a one-sided interaction involving harassment by her family of Mr Freer’s family without reciprocation. It was submitted that the Judge’s remarks appear to draw more upon the victim impact statements than upon the evidence at trial or the findings at trial. It was contended that the tenor of the following remarks appears to settle upon a stronger connection between the history and the culmination of that history than reasonably arose on the evidence:
That behaviour culminated in the events of the afternoon of Friday, 24 November 2017 at Quorn when you decided to drive a vehicle weighing nearly two tonnes directly into the path of Mr Freer. You did not make any attempt to brake or swerve at any stage prior to the impact with Mr Freer. As I said, the results of your actions were catastrophic. Using your vehicle in that way, namely as a weapon to assault Mr Freer must place your offending in a very serious category for the crime of manslaughter by unlawful and dangerous act.
Ms Tennant asserted that the Judge appeared to be reluctant to expressly observe in her remarks that it was Mr Freer and Ms Dowling who had initially given chase to her and her husband.
Ms Tennant complained that by recharacterizing the pre-incident behaviour as an aggravating feature in sentencing amounts to a process error.
In the judgment, the Judge recorded that the police officer who gave evidence of his involvement with the ongoing dispute between the families said, “there had never been any report of a violent incident or physical assault by either family or members of either family. His evidence was that the complaints were of behaviour that was all in the nature of harassment and verbal confrontations”.[8]
[8] R v Tennant [2019] SASC 150 at [22].
The Judge made clear that she did not use the evidence relating to the prior nuisance between the families for any purpose beyond the contextual purpose for which it had been led.[9] Her Honour said that she drew no adverse findings against Ms Tennant on the basis of the evidence. Rather, she indicated that the evidence caused her to entertain a reasonable doubt as to the requisite intention of Ms Tennant with respect to the charge of murder.
[9] R v Tennant [2019] SASC 150 at [23].
In sentencing, her Honour had regard to Mr Freer’s and Ms Tennant’s conduct prior to the impact as established by the evidence. The dashcam evidence recorded that, from the outset of their drive on the way home on 24 November 2017, Ms Tennant and Mr Tennant considered annoying and harassing Mr Freer and his family an amusing sport. Her Honour said:
Although I find your actions on that day were sudden and a spontaneous reaction to the action of Mr Freer, the victim, in throwing the bottle at your car, I cannot overlook the context in which the events of that afternoon unfolded. It is obvious from your remarks at the outset of your drive home that day, remarks which were recorded on the dash cam footage of your vehicle, that you and Mr Tennant considered annoying and harassing Mr Freer, Ms Dowling and their family to be an amusing sport for the pair of you. It is difficult to understand, even taking into account as I do the fact that you have an intellectual disability, how two mature-aged adults – that is you and your husband, who also played a role in the events that unfolded that afternoon – could have behaved in such an irresponsible and childish manner.
It is clear the Judge sentenced Ms Tennant against the history of animosity between the families as it provided neutral context or background to the offending. As the Director submitted, to do otherwise would render the offending incomprehensible.

On my reading of the reasons for judgment and the sentencing remarks, the facts as established by her Honour’s findings underpinned the conclusion that the offending was in a very serious category of manslaughter by unlawful and dangerous act.
Proposed grounds 5 and 6 – the characterisation of the offending and the reference to the use of the motor vehicle as a weapon
It was submitted that equating Ms Tennant’s driving in this matter with the use of a weapon, while correct in a limited sense, does not justify placing the offending in a very serious category for the crime of manslaughter by unlawful and dangerous act. It was contended that unlike a person who brings a knife to an anticipated altercation, there was no finding that Ms Tennant set out to use the Mitsubishi as anything other than a means of transport in the minutes leading up to the offence. The Mitsubishi only momentarily became a weapon in the context of “[a sudden and] spontaneous reaction to the action of Mr Freer”. Ms Tennant conceded that the recordings from her dashcam were primary evidence against her but that that evidence had the tendency to exaggerate the focus of the events. It was submitted that the dashcam gives no indication of where Ms Tennant’s head was turned or where her eyes may have been averted in the seconds before the collision. The footage shows her husband near Mr Freer just before impact and that they move apart just before the Mitsubishi hits Mr Freer.
The Director submitted that an item which has a normal use other than a weapon may nevertheless be found to have been used as an offensive weapon where it has been proved beyond reasonable doubt that, on the occasion charged, it was intended by the offender to be used as a weapon of attack.[10]
[10] Coleman v Zanker (1991) 58 SASR 7 at 12; Considine v Kirkpatrick (1971) SASR 73. See also Ward v The Queen [2013] NSWCCA 46 at [216]; R v Peerdikoyiannis, Condo & Peabody [2011] SASCFC 82 at [57] with respect to the use of a motor vehicle as a weapon in relation to the offence of threatening to cause harm.
There has been no appeal against the Judge’s findings with respect to the use of the Mitsubishi and the finding that Ms Tennant deliberately drove the Mitsubishi at Mr Freer with the intention of hitting him.
As the Director submitted, the use made of the Mitsubishi is captured on the dashcam footage. It was open to the Judge to conclude from this footage that the vehicle was used as a weapon by Ms Tennant to assault Mr Freer.
Introducing a weapon into a volatile situation and using it to cause death is an aggravating feature of culpability which invariably elevates the crime to the more serious category of manslaughter.[11]
[11] R v Duke [2000] SASC 254 at [105]; R v Lupoi (1984) A Crim R 183 at 190. See also the observations of King CJ in R v Piotrowski (1990) 156 LSJS 254 at 255.
Ms Tennant stood to be sentenced for offending which included the added danger of introducing a motor vehicle as a weapon, albeit opportunistically, into what was already a highly volatile situation.
There was no error in the characterisation of to the offending.
Proposed ground 7 – findings as to intention
Ms Tennant asserted that the there was no positive finding as to particular intent to place her offending into a more serious factual category.
The Judge was not satisfied beyond reasonable doubt that Ms Tennant intended to kill or cause grievous bodily harm to Mr Freer. On that basis, Ms Tennant was acquitted of murder.
The Judge said that she could not be sure what Ms Tennant’s state of mind was at the moment of impact. In finding Ms Tennant guilty of manslaughter, her Honour made the positive findings regarding intention. Her Honour was:
·satisfied that Ms Tennant steered the Mitsubishi directly into the path of Mr Freer;
·not sure she intended to do more than assault Mr Freer at that time;[12] and
·not convinced that Ms Tennant formed any specific intention at all other than to knock Mr Freer down.
[12] R v Tennant [2019] SASC 150 at [46].
The Judge’s findings which underpinned the basis of her characterisation of the offending being in a very serious category for the crime of manslaughter by unlawful and dangerous act are:
(1)Ms Tennant deliberately and intentionally drove the vehicle into the path of Mr Freer, who was walking towards her.[13]
(2)It was proved beyond reasonable doubt that Ms Tennant intended to hit Mr Freer and proceeded to do so.[14]
(3)That the driving was unlawful and that Ms Tennant used her vehicle as a weapon to assault Mr Freer.[15]
(4)A reasonable person in the position of Ms Tennant would have realised that she was exposing Mr Freer to an appreciable risk of serious injury by driving a vehicle, which weighed almost two tonnes, directly into his path with the intention of hitting him.[16]
[13] R v Tennant [2019] SASC 150 at [54].
[14] R v Tennant [2019] SASC 150 at [55].
[15] R v Tennant [2019] SASC 150 at [55].
[16] R v Tennant [2019] SASC 150 at [56].
As submitted by the Director, the seriousness of Ms Tennant’s conduct was highlighted by the following matters:
(1)She made no attempt to brake or swerve at any stage prior to impact with Mr Freer.
(2)She put herself in a position to confront and antagonise Mr Freer and his family at the time of the incident by not taking a direct route home.
(3)Knowing that Mr Freer was angry and had thrown a bottle at her vehicle, she pulled over facilitating a further confrontation with Mr Freer and his family. There were other options available to her at this point.
(4)The offending took place in front of Mr Freer’s partner and his two children.
(5)The remarks of Ms Tennant captured on the dashcam footage prior to the offending indicated that she and her husband considered annoying and harassing Mr Freer and his family an amusing sport.
The findings detailed by the Judge in the reasons for judgment lead to the conclusion that Ms Tennant’s offending was in a very serious category of manslaughter by unlawful and dangerous act.
Proposed ground 8 – the application of Munda v Western Australia
Ms Tennant argues that the Judge incorrectly applied the principles articulated by the High Court in Munda v Western Australia.[17]
[17] (2013) 249 CLR 600.
Munda concerned the sentencing of an Aboriginal man who beat his partner to death. Amongst other matters, the High Court considered the relevance of an offender’s aboriginality, history of systemic deprivation, disadvantage, and substance abuse in the sentencing process.
The High Court held that, while it was relevant to take into consideration circumstances of severe social disadvantage, the same sentencing principles must be applied in every case irrespective of an offender’s identity or his or her membership of an ethnic or other group. The High Court also stated that a failure to impose a just punishment for violent offending may be seen as a failure by the State to vindicate the human dignity of the victim.[18]
[18] (2013) 249 CLR 600 at [55].
The Judge correctly applied the principles in Munda’s case in sentencing Ms Tennant. Her Honour detailed Ms Tennant’s personal circumstances and identified that the sentence also needed to afford due recognition to the human dignity of the victim and the interests of the community in the punishment of violent offending.
Proposed grounds 9 to 12 – disproportionate weight attributed to personal circumstances
Ms Tennant argued that the Judge erred in giving no, or inappropriate, weight to her background, antecedents, and personal circumstances.
In addition to the submissions made by Ms Tennant’s counsel, the Judge was provided with the report of Dr Balfour which extensively detailed Ms Tennant’s background and personal circumstances. Her Honour made specific reference to Ms Tennant’s aboriginality, her family history, her deprived and traumatic background, the significant abuse and neglect she had suffered as a child. Reference was also made to Ms Tennant’s relationship history, the domestic violence perpetrated against her, her education and employment history, her level of intellectual functioning and history of alcohol abuse. Whilst specific reference was not made to Ms Tennant’s on-going health problems, Mr Balfour’s report detailed her complex health issues all of which appear to be adequately managed.
In sentencing, her Honour had proper regard and consideration to the personal circumstances of Ms Tennant, and the sentence reflected this.
Conclusion
It was open to the Judge on the facts of this matter to conclude that Ms Tennant’s conduct was in a very serious category of manslaughter by unlawful and dangerous act.
The Judge had appropriate regard to all relevant factors, including all matters personal to Ms Tennant in arriving at the starting point of 10 years imprisonment. The sentence imposed was neither “outside the permissible range of sentences for the offender and the offence”[19] nor has any error of fact or law been identified.
[19] Kentwell v The Queen (2014) 252 CLR 601 at [35] (French CJ, Hayne, Bell, and Keane JJ).
I would dismiss the appeal on ground 1 and refuse permission to appeal on all proposed grounds.
HUGHES J: I agree with the reasons given by Bampton J. The appeal should be dismissed.