Wimbridge v The Queen
[2000] WASCA 117
•5 MAY 2000
WIMBRIDGE -v- THE QUEEN [2000] WASCA 117
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 117 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:214/1999 | 2 FEBRUARY 2000 | |
| Coram: | PIDGEON J WALLWORK J MURRAY J | 5/05/00 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Leave Refused | ||
| PDF Version |
| Parties: | RONALD PATRICK WIMBRIDGE THE QUEEN |
Catchwords: | Criminal Law and Procedure Sexual penetration by a father of his daughter Convicted of two counts and acquitted of one Matter reported 4 years later Admission into evidence of uncharged acts of touching Whether relationship evidence Longman direction Whether necessary to direct it was unsafe to convict Directions as to absence of complaint, prior inconsistent statements and convictions of a defence witness Whether the verdicts were inconsistent Whether letters written by complainant and complainant's continuing association with her father made the convictions unsafe. Evidence Relationship evidence Use of evidence of uncharged acts of touching. |
Legislation: | Nil |
Case References: | Driscoll v The Queen (1977) 137 CLR 517 Hardingham v The Queen, unreported; CCA SCt of WA; Library No 940105; 3 March 1994 James v The Queen [2000] WASCA 100 Jones v The Queen (1997) 191 CLR 439 Kailis v The Queen (1991) 21 WAR 100 Kilby v The Queen (1973) 129 CLR 460 Longman v The Queen (1989) 168 CLR 79 R v Schmahl [1965] VR 745 R v Urbano (1983) 9 A Crim R 170 Broadhurst v The Queen [1964] AC 441 BRS v The Queen (1997) 191 CLR 275 Gipp v The Queen (1998) 194 CLR 106 HG v The Queen (1999) 160 ALR 554 KBT v The Queen (1997) 191 CLR 417 M v The Queen (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 Pemble v The Queen (1971) 124 CLR 107 R v Asplin [1999] WASCA 148 R v Beserick (1993) 30 NSWLR 510 R v Grech [1977] 2 VR 609 R v Kemp [1997] 1 Qd R 383 R v Kizon (1985) 18 A Crim R 59 R v McKellin [1998] 4 VR 757 R v Robertson [1998] 4 VR 30 R v Sorgenfrie (1981) 3 A Crim R 404 RM v The Queen, unreported; CCA SCt of WA; Library No 99083; 23 February 1999 Shepherd v The Queen (1990) 170 CLR 573 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WIMBRIDGE -v- THE QUEEN [2000] WASCA 117 CORAM : PIDGEON J
- WALLWORK J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal Law and Procedure - Sexual penetration by a father of his daughter - Convicted of two counts and acquitted of one - Matter reported 4 years later - Admission into evidence of uncharged acts of touching - Whether relationship evidence - Longman direction - Whether necessary to direct it was unsafe to convict - Directions as to absence of complaint, prior inconsistent statements and convictions of a defence witness - Whether the verdicts were inconsistent - Whether letters written by complainant and complainant's continuing association with her father made the convictions unsafe.
Evidence - Relationship evidence - Use of evidence of uncharged acts of touching.
(Page 2)
Legislation:
Nil
Result:
Leave Refused
Representation:
Counsel:
Applicant : Mr P F Tehan QC
Respondent : Mr R E Cock QC
Solicitors:
Applicant : A C Thorpe
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Driscoll v The Queen (1977) 137 CLR 517
Hardingham v The Queen, unreported; CCA SCt of WA; Library No 940105; 3 March 1994
James v The Queen [2000] WASCA 100
Jones v The Queen (1997) 191 CLR 439
Kailis v The Queen (1999) 21 WAR 100
Kilby v The Queen (1973) 129 CLR 460
Longman v The Queen (1989) 168 CLR 79
R v Schmahl [1965] VR 745
R v Urbano (1983) 9 A Crim R 170
Case(s) also cited:
Broadhurst v The Queen [1964] AC 441
BRS v The Queen (1997) 191 CLR 275
Gipp v The Queen (1998) 194 CLR 106
HG v The Queen (1999) 160 ALR 554
KBT v The Queen (1997) 191 CLR 417
M v The Queen (1994) 181 CLR 487
(Page 3)
MacKenzie v The Queen (1996) 190 CLR 348
Pemble v The Queen (1971) 124 CLR 107
R v Asplin [1999] WASCA 148
R v Beserick (1993) 30 NSWLR 510
R v Grech [1977] 2 VR 609
R v Kemp [1997] 1 Qd R 383
R v Kizon (1985) 18 A Crim R 59
R v McKellin [1998] 4 VR 757
R v Robertson [1998] 4 VR 30
R v Sorgenfrie (1981) 3 A Crim R 404
RM v The Queen, unreported; CCA SCt of WA; Library No 99083; 23 February 1999
Shepherd v The Queen (1990) 170 CLR 573
(Page 4)
1 PIDGEON J: The applicant is appealing against his conviction in respect of two offences of sexually penetrating his daughter. He was acquitted of a third charge of a similar nature. His daughter was born in 1975. Each of the three charges were alleged to have occurred in 1993 or 1994. They did not come to the notice of the authorities until 1997 and the applicant stood trial before his Honour Judge Charters and a jury on 28 September 1999. The grounds of appeal include the question of the admission into evidence of other alleged acts, they bring into question directions given by the trial Judge and claim that the two verdicts of guilty are unsafe, having regard to the evidence led and are inconsistent with the acquittal on the third count.
Complainant's Evidence
2 The applicant and the complainant's mother had an association prior to 1975. They were living in Bunbury and separated prior to the birth of the complainant. The applicant went to Perth and the mother, for most of the time, continued to live in Bunbury with the complainant. There was, for a period of 14 years, no contact at all between the complainant and the applicant. In 1989 the complainant wanted to meet her father and her mother contacted the applicant's mother. The applicant did not realise that there had been a daughter of his earlier association. He was surprised to hear of it and took some little time in believing of the existence of the complainant. He agreed, on the advice of his mother, that contact should be made.
3 The complainant, in her evidence, said she wrote the applicant a letter in 1989 and met him for the first time in 1990. The applicant's marital history is not clear and not very relevant but it does appear that some time previously the applicant had married and, at the time the complainant made contact, he had grown up children. One was 24 at the time of the trial. The complainant and the applicant met at the home of the applicant's parents in Como. Following that, she would stay with the applicant from time to time at a number of residences he had in Perth. There was, later in 1990, an argument and they stopped speaking to one another. Each had a different account as to the reason they stopped speaking and the reason, for the purpose of this appeal, does not matter. The complainant said that neither spoke to the other until the funeral of the applicant's mother which occurred on 2 April 1992. The complainant referred to the applicant's mother as her grandmother. The complainant and her mother had moved to live in Perth in January 1991. The
(Page 5)
- complainant with her mother attended the funeral and she and the applicant commenced speaking again.
4 The complainant said everything went well until the first of the alleged offences. She said this took place in March 1993 after a party. The applicant by that time had re-married and was living in a house in St James. The complainant was living with her mother in Balcatta. She said that there was a 21st birthday party in Lathlain for her cousin's boyfriend. She said that the applicant played the guitar at the party and she returned to the applicant's house after it. Her evidence was confined to what occurred on her return to the applicant's house.
5 They returned together in the same car. The complainant said that they arrived at the applicant's place in the early hours of the following morning. When they arrived there the applicant told her that she could lie on his bed and go to sleep. She said that she went to bed in the clothes she had been wearing. She woke up and heard the applicant talking in the kitchen with another man. The applicant came into the room and started getting into the bed in which the complainant had been sleeping. She was partially awake. She said that the applicant then put his hand down her pants and put his fingers inside her vagina. Nothing was said. She said she was frightened and knew that the applicant had been drinking and she just lay there pretending to be asleep. He stopped, but did not say anything. She said next day she wrote him a letter asking him why he did it. She said she made mention that fathers do not do that sort of thing and she asked why he had done it and she did not understand. She said she visited his house a few days later and saw him take the letter from the box and read it. He put his arms around her and hugged her and said he was sorry, that he was drunk at the time and he would never do it again. The complainant said that she believed him as she knew he had been drinking and she decided to continue the association with him.
6 The next act described by the complainant was an act of touching which was not the subject of a count in the indictment. She had agreed to act as a babysitter for the two young children who had been born to the applicant and his new wife. The complainant referred to the applicant's wife as her stepmother and to the children as her sisters. She said that the applicant and his wife, every Monday, would go to the casino and she would stay the night at the applicant's house to look after the children. She said she was upstairs in bed with one of the children when she heard the applicant and his wife come home. She heard them talking downstairs. She heard the wife go into the bathroom and have a shower. The applicant came into the room in which she was sleeping and he tried
(Page 6)
- to put his hands down her pants. She pushed him away and rolled over to the side. She said she was frightened and the incident went no further than this.
7 The next incident she described was the subject of the second count on the indictment. She thought it occurred a few months after the 21st birthday party. She said that she was working for a florist in Morley. The applicant would call every couple of days at her place of work at lunchtime and talk to her employer. He would also, sometimes on these occasions, take her to lunch. On one occasion, when he came to pick her up for lunch, he told her he wanted to take her to his workshop to show her the progress he had made on a bus he was converting into a caravan. She had visited the workshop previously and knew about the bus. On this particular occasion they went to the workshop and entered the bus. She said that they went down to the back of the bus and he then pushed her onto a bed. He pulled her pants down and then pulled his pants down. He inserted his penis into her vagina. She said she was crying, struggling and was upset. She told him to take her back to work and he replied, "No." She said it lasted for a couple of minutes and she was crying. It stopped and after a couple of minutes she got up and went and sat in his car which was parked outside the sliding door of the workshop. A man then came and talked to the applicant. She said that he spoke to this man for a little while and then drove her back. On arrival at work she went straight down to the toilet.
8 The next incident she described was a second touching of her and being an act not charged on the indictment. She said that on 17 February 1994 the applicant and his wife took her on a trip to Bali and they stayed at a place in a village. She described how she became badly sunburnt lying on a beach, causing her to spend a couple of days in her room. She said one morning she told them she did not wish to go to breakfast because of her sunburn. A little later the applicant came back while she was lying on her stomach in bed. She said that he went to put his hands under her pants, she screamed at him to stop and told him to get out and he left.
9 The next incident she described was the third count on the indictment. She said it occurred in the first half of 1994 when the applicant's half sister came across from Melbourne to visit the grave of their mother. The complainant referred to this person as her aunt and I shall so describe her. The complainant described in evidence how the applicant took her aunt and herself to see one of the applicant's launches Pretty Woman. The aunt was shown over the vessel. The aunt then left
(Page 7)
- the vessel leaving the applicant and the complainant alone on the vessel. The complainant said that the applicant then pulled her into the cabin and threw her onto the bed and she remembered hitting her head on something. She said he pulled her pants down and then he pulled his own pants down. She was screaming and trying to get him off her. She had her face covered and he put his penis into her vagina. She said she was crying and yelling and he stopped. She remembered him hitting her across the head as well. She said it stopped after a few minutes and they went back to the car. She said, "Then we left and nothing was ever said and he acted like nothing had happened".
10 The applicant, in his evidence, described how his mother rang him some time in 1988 or 1989 and told him that she had been contacted by the woman he had been living with in Bunbury in 1975 and that there was a daughter who wanted to meet him. He said he was shocked and did not know he had a daughter and said, "No I don't have a daughter." He said he had an "in-depth" conversation with his mother and as a result agreed to meet the complainant. They met at his father's house. She was 14 when this occurred. He described in detail their first meeting and when asked how he felt after it he said, "Strange, but happy." She continued to visit him and on two occasions he went to Bunbury. He carried out work in the house of the complainant's mother. He described the incident that he said caused them to stop speaking, which was a different incident from that described by the complainant. The incident he described was one where he slapped his adult son for smoking cannabis. He felt they had made up just before his mother's funeral. The complainant was at the funeral.
11 He then described the 21st birthday party in March 1993 which he believed was on Saturday 20 March 1993. He was required to set up the equipment for music and he anticipated that he would be drinking and should not be driving. He said that the complainant agreed to drive him there in her vehicle. The complainant arrived at 6.00 to 6.30 pm and drove him to the party. He described what occurred at the party and then said that the complainant drove him home. He described how he walked into the house and how the complainant followed him and went to the toilet. She came out a few minutes later and said she was going home. She then went out to the front door and he followed to make sure she was all right and he saw her drive off in her motor car. He then went to the casino with Mr Martin. He said it was totally untrue that he suggested to
(Page 8)
- the complainant that she sleep in a bed at his house on that night. He described previous occasions when she did sleep at night in the house, but she slept in a different room.
12 Mr Martin, who was called by the applicant, said, in evidence, that he remembered being at the applicant's place on the night of the 21st birthday party and that the complainant called and picked the applicant up at about 8.00 pm. He and the applicant agreed that on his return from the party they would go to the casino. Mr Martin remained at the applicant's house with the applicant's sons. He said the applicant returned home at about 12.30 am the following morning. He said he could not recall seeing the complainant, but he knew that the complainant dropped him off as he heard her car pull up. The applicant came into the house and he and the applicant then caught a taxi and went to the casino.
13 The applicant said that he did not receive a letter from the complainant nor did he go to the letter box when the complainant called after the day of the party. He said the only time that he hugged her and said it won't happen again was after the incident when he lost his temper and slapped his son.
14 His evidence relating to the allegation that he touched her when she was minding his children was that the complainant would babysit his children when he and his wife went to the casino. He said that the complainant never slept in bed with the children. He said the allegation was completely untrue that he returned one evening about 2.00 am, went into the bedroom and touched her.
15 His evidence in respect of the second count, being the occurrence in the bus, was that the complainant started working with a florist in Morley in May 1993 and he would call in and see her once or twice a week. He said he liked popping in and talking to her and her "bosses" and would take her to lunch. He would drive her in his car to places for lunch. He said at that time he had the use of a friend's workshop. The owner would also use the workshop. He said that the only occasion that the complainant visited the workshop was for the purpose of having some graphic stickers fixed to her car. He made an arrangement for her to bring the car on a particular day. He rang her at the florist in the morning and it was arranged that at lunch time she would bring the car to the workshop. The owner of the workshop was there when she arrived. She brought some salad rolls for lunch. Together they put on the graphic stickers. The job took about an hour. She drove back. In his evidence he referred to
(Page 9)
- the bus from time to time but said that the bus was not in the workshop on the day he fixed the stickers.
16 The applicant's evidence relating to the alleged incident in Bali was that the complainant accompanied the applicant and his wife on their trip to Bali in February 1994. The applicant paid the complainant's fare. He said they stayed three kilometres out of Kuta where he hired two identical chalets. He and his wife were in one and the complainant in the other. They were adjoining chalets and separated by a thin asbestos wall. They stayed five days and he remembered the complainant becoming sunburnt on the third or fourth day. The effect of his evidence was that there was no improper touching, but that the complainant asked him to rub cream on her back while she laid on her stomach. She was wearing a cotton dress and bikinis and took her cotton dress off. He rubbed the cream on her back and the back of her legs. He washed his hands and left the room. There was no attempt by him to touch her.
17 The applicant's evidence in respect of the final count was that on the second anniversary of his mother's death, namely 2 April 1994 his sister arrived from Melbourne to accompany the family on a visit to the grave. It was planned to meet the sister at the South Perth Yacht Club to show her a new launch he had purchased, Pretty Woman. From there they would drive to the cemetery. He drove the complainant from his place to the yacht club where he met his sister. He described how he showed his sister inside the cabin while the complainant stayed on the back deck as she had been on the vessel before. He said that the complainant never entered the cabin. When he finished showing his sister inside the cabin he and his sister went to the back deck and a former policeman, Mr Archibald, came on board and he introduced him to his sister and the complainant. They all left together and locked the cabin door. They then went to the cemetery. The sister was a crown witness and I shall refer to her evidence when considering the question of inconsistent verdicts. Mr Archibald did not give evidence.
Grounds relating to alleged acts not in the indictment.
18 Grounds 1 &2 of the appeal claim that the trial miscarried in that there was wrongly admitted into the trial evidence of sexual offences not charged in the indictment and it is claimed, further, that the trial Judge did not properly direct the jury on this evidence. The complainant referred specifically to two acts of touching one of which was said to have occurred when she was minding the children and the other at Bali. This evidence, although in the depositions, was not objected to at any stage. If
(Page 10)
- evidence of this type, arguably admissible, is not objected to, then this Court must be very hesitant in considering granting a new trial on that account. It would often be a considered decision not to object to the evidence. In the present case, the fact that the complainant claimed to be in bed with one of the very young children might be seen as being unlikely and the applicant's explanation as to applying cream may have been seen as providing a proper explanation to ground an unfounded accusation. The next probable explanation is that counsel would have seen the evidence as being admissible and in my view rightly so.
19 The principles on which evidence of this type is admissible have been quoted by this Court in a number of recent cases and there would be no point in again setting them out. They were recently considered by Anderson J in Hardingham v The Queen, unreported; CCA SCt of WA; Library No 940105; 3 March 1994 (at 3 - 7). I shall set out the following portion of his Honour's reasons which would be applicable to the circumstances of this case. His Honour said:
"Evidence of other assaults has been admitted because all of the assaults were 'a connected series of events' and evidence of the other assaults enabled the case to be presented in 'an intelligible and real fashion': R v Garner (1963) 81 WN (Pt 1) (NSW) 120 at 123. Such evidence has been described as having probative value additional to proof of propensity or predisposition because it 'tends to prove why or how on the occasion in question, the offence occurred in the circumstances alleged': Harriman v R (1989) 167 CLR 590 per McHugh J at 631. And because it shows a 'special manner of living' from which 'an inference that the specific act took place might properly be drawn': Martin v Osborne (1936) 55 CLR 367 per Evatt J at 396."
20 I consider that the two acts were clearly admissible under this head. They are part of a connected series of events and have the type of probative value referred to by Anderson J. Their prejudicial value, when compared to the other evidence properly led would not be great as they are no more than a touching which ceased when there was resistance. They could have been charged as no more than an assault. It would have been seen as "overcharging" to have put them in the indictment as assaults.
21 His Honour gave a detailed direction as to how the evidence was to be used. It concisely and accurately set out the law and there is no claim
(Page 11)
- to the contrary. The claim is that his Honour referred specially to two acts whereas it is claimed that the complainant, in her evidence, alluded to other acts. His Honour commenced this aspect of his direction by saying: (AB438)
"You have heard evidence from (the complainant) that there were other incidents; that is, incidents other than those which form the basis of any of the charges within the indictment. In particular, on a Monday night, she said she was baby-sitting for…"
"On another occasion at Bali, after (the complainant) had been badly sunburnt and spent a couple of days in her room, she says Mr Wimbridge came into her room while she was lying on her stomach in bed, put his hand down her pants and (the complainant) yelled at him to get out and he left. So, I remind you, neither of those incidents has any part in any of the counts before you. The relevance of this evidence…"
23 It is claimed that the complainant referred to other incidents that were not the subject of his Honour's direction. The basis of the claim is that she said on more than one occasion that the incident she was describing was not the only occurrence. After the complainant had completed giving evidence on the first offence, she was asked, "Did anything of a sexual nature between you ever happen again?" to which she replied, "Yes." She was then asked, "Once or more than once?" and she replied, "More than once" and she then described the incident while she was babysitting. Her answer at that stage presents no difficulty because on her evidence there were further incidents. After she described the occurrence in the bus, which was the subject of the second count, she was again asked identical questions and I shall repeat them because of their importance. "Did anything sexual ever happen between you and the accused apart from these", to which her answer was "Yes." She was again asked, "Once or more than once" and she said, "More than once." She was then asked to describe the next occasion and she described the alleged occurrence at Bali. Again the question and answer present no difficulty at this stage of her evidence because her evidence described two further occurrences, namely the incident at Bali and the alleged incident on the launch, the subject of the third count. After she finished describing what occurred at Bali, and before describing what she said occurred on the
(Page 12)
- launch, this being the third count, she was again asked identical questions and I shall set them out. (AB36)
"Were there any other occasions on which there was sexual contact between the two of you?---Yes.
Once or more than once?---More than once.
Recall us the next time that you can remember?---I remember - this was in 94 as well. My auntie was here from Melbourne."
"Now, in relation to each of the three times that he put a part of his body inside you, did you tell anyone else what had happened immediately after the event?---No."
25 There followed four more questions in which she explained why she did not tell anyone else and her examination in chief concluded.
26 It is my view, at this stage of her evidence, that she was not saying that there were occurrences other than those she described. The final question was not confined to the future and was asked in a way whereby she could well understand applied to the past. Her answer was literally true. There were other occasions although they had occurred earlier.
27 It was submitted, in support of the ground, that the matter was amplified by the following cross-examination in respect of the third count, being the alleged incident in the cabin of the launch: (AB108)
"…As I understand, your evidence to the jury is that you went to the boat with Ron and met (your aunt) there. That could have been before you went to the cemetery or it could have been after you went to the cemetery. Correct?----Yes.
This was the second time on your version that Ron had raped you. Correct?----There were other times that things happened but in my statement that's second.
I beg your pardon?----In my statement, yes, that is the second time.
(Page 13)
- Right. What you told the police is that he raped you twice. Isn't that right?---I told them there were other times but I didn't know enough - - -
Other rapes, were there? You told them - - -?---There were other incidents.
Did you tell them there were other rapes?---I've told them about the other incidents, yes.
Other rapes?---I don't know.
This was the second time - - -
His Honour: I think you should define for the witness what you call, 'a rape'.
Counsel: I already have, your Honour - - -
His Honour:I know you have. You haven't got a complete answer…. Tell the witness what you regard as a rape for the purpose of that question.
Counsel:Forcible sexual intercourse which is what she has indicated she understands the word to mean about an hour and a half ago?---Yes.
His Honour: Yes.
Counsel:On both occasions he used force?---Yes."
28 I would still be of the view after examining this cross-examination, that the complainant was not intending to refer to matters she had not already described in evidence. Even if it could be seen that she was referring to other matters it was fully covered in his Honour's direction. She said specifically the other incidents were not rapes. His Honour commenced by saying generally that there were other incidents "that is, incidents other than those which form the basis of any of the charges within the indictment." His Honour then referred to the two incidents "in particular". It is I consider clear that his Honour's direction referred to all acts not the subject of a specific count.
(Page 14)
29 Ground 3 claims that the learned trial Judge erred in failing to give to the jury a full and complete direction in accordance with Longman v The Queen (1989) 168 CLR 79. His Honour gave a limited direction in this area. His Honour referred to her evidence as to reasons why she did not report the matter and discussed with the jury the question whether or not in the view of the jury this would affect the credibility of the complainant. Following this, his Honour said: (AB441)
"A further consideration in relation to the delay in making a complaint is that by this delay this accused has not been given the opportunity to test (the complainant's) evidence contemporaneously with the evidence she has related. There has been a delay of 5 or 6 years between the incidents related to you and this trial and that delay deprives Mr Wimbridge of the opportunity of dealing with the incidents by calling evidence which may earlier have been available.
For example, reference has been made by counsel to this. Forensic or medical evidence is sometimes available when an immediate report is made. There is no such evidence here. There is no evidence of medical examination or clothing - or forensic examination of clothing and Mr Wimbridge has been deprived of the opportunity to explore that area.
Consider this: while counts 1 and 3 may now have been identified reasonably closely to dates, as I have discussed with you, the incident the subject of count 2 is broadly stated to be between April 1993 and July 1994. That gives Mr Wimbridge little opportunity for calling evidence of his activities or whereabouts at the time. Furthermore, it's a matter of commonsense that over time memories diminish, and you yourselves have heard (the complainant) on a number of occasions say that she could not recall details surrounding some of the incidents she has related.
She could not recall when they happened, and in this context, bear in mind that (the complainant) could not remember such details as what she wore on the occasion of the workshop incident; that is, count 2, whether she wore a dress or jeans. This may be important because it precludes - if she doesn't know what she wore, it precludes any cross-examination
(Page 15)
- concerning the manner in which the clothing was removed for the purpose of attaining sexual penetration.
Comparison of evidence with a contemporaneous account of what happened is an important forensic tool for testing a person's evidence, and differences have been highlighted between (the complainant's) evidence and her police statement, or certainly a difference; that is, whether she was awake when she says Mr Wimbridge entered her room after the 21st birthday party - whether she was awake at the time or whether he woke her, but there is no contemporaneous report of what happened after the incidents and consequently there was no opportunity given to Mr Wimbridge to test (the complainant's) evidence against such a contemporaneous report.
The evidence of (the complainant) was not supported in any way by independent evidence. As a matter of law, you may convict on her unsupported evidence but I must give you a warning. The warning I give you, and I emphasise it's a matter in which I'm required by law to warn you, is that you should scrutinise (the complainant's) evidence very carefully before you accept it as truthful and accurate of what she has related to you and before you may find Mr Wimbridge guilty of the count that you are considering.
In giving you this warning, do not suppose that I am expressing any view I hold of the evidence. That is not my function. You are the judges of the facts. It is for you to judge whether the evidence is reliable and truthful but you must do so against the warning that I have given you to scrutinise the evidence very carefully indeed before you find Mr Wimbridge guilty."
30 The submission is that his Honour should have instructed the jury that it would be dangerous to convict in these circumstances.
31 In Kailis v The Queen (1999) 21 WAR 100 Malcolm CJ at 138 considered that a direction of the type given in the present case was sufficient in the circumstances of the case then being considered, which the Chief Justice said was a very different one from Longman. Similar distinctions apply in the present case. The delay was one of 4 years or so as contrasted to one of 20 years in Longman. In the present case the complainant referred very specifically both to the date and place of the commission of the first offence. The applicant knew exactly the time and
(Page 16)
- place she was referring to and was able to call evidence relating to it. The evidence relating to the bus was not quite so specific. The applicant, however, was able to answer it on the basis that there was only one occasion when she was taken to the bus. The evidence in respect of the final count was also very specific as to the place and reasonably specific as to the time in regard to when the applicant's sister came to Western Australia to visit the mother's grave. The law in respect of this has recently been discussed by Murray J in James v The Queen [2000] WASCA 100.
32 Section 50 of the Evidence Act provides that a Judge shall not give a corroboration warning to the jury unless he or she is satisfied that a warning is justified. This is an occasion where I consider that it would not have been justified to go to the extent of saying it would be dangerous to convict on the complainant's evidence and I consider to have done so would have been unfair to the complainant in the circumstances of this case. It is very important that the trial remains balanced and in keeping the balance, the Judge must have regard to the section to which I have referred. I consider his Honour's warning was a fair and balanced one in the circumstances of this case.
Directions as to Complaint
33 Ground 4 claims that his Honour erroneously directed the jury upon the issue of delay in the complainant making the complaint.
34 The direction his Honour gave as to complaint was as follows: (AB439)
"You have heard much said by counsel and there has been evidence given of course upon the issue that there was no complaint by (the complainant) of the incidents soon after they happened, as she said they happened.
It sometimes happens in cases of complaints of a sexual nature that the complainant makes a report to someone of what is alleged to have happened soon after the incident and in those circumstances the crown is permitted to call evidence of the complaint that is then made, and the evidence of the complaint made soon after the incident is not evidence that supports the complainant's evidence given in the court because it cannot support it. It is self-serving only.
(Page 17)
- The evidence is permissible, however, to show consistency of the evidence given by the complainant in the court to the jury with what that complainant said soon after the alleged incident happened. Here, of course, there was no complaint made soon after the incident. We refer to a complaint made soon after an incident as a recent complaint. There was no recent complaint, for the incidents we all know are alleged to have occurred in 1993 and 1994.
There was no complaint of these incidents until 1997. She went to the police and gave a statement in September of 1997 and that, of course, is not a recent complaint. Counsel for Mr Wimbridge made the observation to you that there is no evidence why (the complainant) ultimately complained of these allegations. As a matter of fairness I should explain to you that the crown did not lead such evidence of why she ultimately reported these incidents and the crown would not have been permitted to lead such evidence.
Be very careful indeed not to speculate upon this question. There is no evidence and you cannot now wonder why and you may draw no conclusion either way upon the question. The fact that (the complainant) did not make a recent complaint of what she alleges happened to her does not necessarily mean that the incidents did not happen as she has described them. There may be good reasons why she made no such complaints soon after the incidents. You should bear in mind that the evidence shows an unusual and complex relationship between (the complainant) and her father.
She never met her father until she was 14 or 15 years old. Her evidence, the crown would say and as she has said, was that she was happy to have a father, perhaps she was delighted to have a father to whom she could relate. She enjoyed going out with him. He may have had an aura of some wealth and influence. He was able to take her out in a way she possibly never before experienced. It may be that she was publicly proud of him and reluctant to discard this new window to her life.
The first incident happened on a night when he had been drinking. That is the subject of the first count, when he is alleged to have put his fingers in her vagina. She was in bed fully clothed after the 21st birthday party. The next day (the
(Page 18)
- complainant) says she wrote him a note which was delivered to him a couple of days later which coincided with a visit she made and when he received and opened the letter she claims that her father apologised for the incident, hugged her and said it would not happen again. She accepted that. She did not report the other incidents. She has told you that she was afraid of her father and she was confused. She thought he could be violent. On the other hand, you have to determine the extent to which (the complainant) associated with her father after the incidents; birthday parties, his wedding at which she was a bridesmaid in 1995, funeral anniversary of Mr Wimbridge's mother, the letters she wrote to him when he was in prison in 1996.
You have the evidence of the photographs of the occasions she was with her father. Against all of this evidence you must determine whether indeed (the complainant) was afraid of her father for it is, of course, the case for Mr Wimbridge that the evidence points to an affectionate family background and these allegations have after some years then been made. You have to make a number of findings of fact from the evidence arising out of that relationship between (the complainant) and Mr Wimbridge, but in the end you may consider that (the complainant's) reasons for the delay in making the complaints are so improbable and unlikely as to throw doubt upon her credibility as a witness.
In the particular circumstances the delay may be so long and so inexplicable, so unexplained, that you may conclude that the allegations she has made are false or you may have a reasonable doubt of the veracity and accuracy of her evidence. These are entirely matters for you."
35 The first submission is that his Honour should not have told the jury that as a matter of fairness the Crown could not lead evidence as to why she ultimately reported these incidents. This is contained in the bold portion of his Honour's address
36 The course the trial took was that counsel for the Crown sought leave to ask her in re-examination why she made the complaint to the police in 1997. This was refused. Counsel for the defence, in his address to the jury referred to her explanation that she was frightened. Counsel
(Page 19)
- examined this critically and asked the question "Why did she stop being frightened?". Counsel continued:
"Is there doubt about that explanation? But more importantly why did she stop being frightened? Didn't tell you. Said she was frightened.
At no stage did she say, 'Oh, well, I got over that' and decided to report it. No explanation for that whatsoever. All she said when she was being asked about why she told people in 97 was that, 'Well, I never intended to report these incidents.' That's all she said. Nothing else. These events that she described, if true, would have created absolute revulsion towards this man. Absolute revulsion. This is point 2. Assume point 1 happened."
38 The next submission is that the Judge did not in turn say directly that the failure to make the immediate complaint is a factor to take into account in assessing the credibility of the complainant. His Honour went no further than saying that in the end the jury may consider that the complainant's reasons for the delay in making the complaint is so improbable and unlikely as to throw doubt upon her credibility as a witness. His Honour was saying, in effect, that if the jury considered that the complainant had no sound reason for not complaining, then her failure to do so may throw doubt on her credibility. I consider on the facts of this case such a direction is in accord with what was said by Barwick CJ in Kilby v The Queen (1973) 129 CLR 460 at 465 when his Honour said:
"It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given."
39 It is proper for his Honour to say that if she had a good explanation for not complaining, then that would not be a factor to affect her credibility, but if there was no explanation it would be a factor. I consider that this was the effect of his Honour's observations in this area.
(Page 20)
40 It was submitted that his Honour's reference to possible reasons as to why she did not complain went into the area of speculation. I consider that his Honour's observations were consistent with the evidence and his Honour was doing no more than discussing with the jury possible interpretations open on the evidence.
Prior Inconsistent Statements
41 Ground 5 claims that his Honour erred in failing to properly direct the jury upon the issue of prior inconsistent statements. It is submitted that his Honour should have directed that statements of the complainant to the police do not constitute evidence in the trial unless the witness by her sworn evidence confirms the evidence in the statement and the jury should have been directed as to the limited use to which the statement may be put.
42 In the present case the deposition of the complainant was used by counsel for the applicant for the purpose of bringing to light possible inconsistencies between the complainant's evidence before the jury and what she said in her deposition. Although the deposition was put to the complainant, I do not consider it resulted in any material evidence before the jury which was not sworn to. The complainant, in respect of the first count of the indictment, told the jury that the applicant said to her that she could go and sleep in his bed. It was put to her in cross-examination that she did not tell that to the police and what she said to the police went no further than her going straight to bed on her arrival home as she was tired. When it was put to her that she did not tell them that her reply was, "I do not know, I may have, I do not know." She denied the proposition put to her that she merely went home and "flopped on the bed". The result of this aspect of the cross-examination is that no part of her deposition was before the jury.
43 The next instance to which counsel referred related again to the first count when she was being cross-examined on that part of her evidence when she said that she woke up and felt someone touching her and then saw the applicant lying next to her. The result of this cross-examination, at its highest, was that there was some contradiction in detail between what the complainant said in her deposition and what she said to the jury. There were inconsistencies as to when she first heard the applicant and the manner in which he came into the room. The two versions were consistent that he got into her bed. The result is that there was no unsworn evidence before the jury which would have implicated the applicant to any greater extent than the sworn evidence. The unsworn
(Page 21)
- evidence would indicate that the applicant committed the offence in a different way.
44 Counsel referred to a further alleged discrepancy relating to the Bali incident. In her evidence she said she was not sure if any part of his hand got under her pants whereas in evidence given a year earlier she said positively that he did not get his hand under her pants. I would see no significance in a discrepancy of this type. In this case a page of the evidence at the preliminary hearing was tendered at the request of the defence. This corresponded to her evidence on oath.
45 When a deposition is referred to in the trial I would see it often as a helpful direction to instruct the jury, when advising them as to what is evidence, to inform them that the evidence on which they judge the matter is the evidence from the witness box during the trial, and is not the evidence contained in the deposition and when a deposition is referred to it is for the purpose of testing the evidence in the trial. I would not see it as an essential direction unless there was significant unsworn evidence that implicated the applicant. I do not see the direction being essential in the present case and I do not consider the trial miscarried by reason of its not being given. Mr Tehan referred to authority where it was said that such direction should be given. The cases to which he referred were Driscoll v The Queen (1977) 137 CLR 517 at 535 - 537 and R v Urbano (1983) 9 A Crim R 170 at 173 - 174. These were each cases where the prosecution were permitted to declare the witness hostile and put to the witness significant passages from the witness's deposition which were not adopted by the witness. In such cases it is necessary to give the direction, but the present case was not one of those cases. Mr Tehan also referred to R v Schmahl [1965] VR 745. In that case there were significant discrepancies between evidence given at an earlier trial and the crown case. The case was decided on the basis that the defence was not properly put.
46 It was submitted, in argument, that his Honour did not instruct the jury how they were to judge the inconsistencies. In my view, a sufficient direction was contained in that portion of his Honour's summing up which I have already set out when his Honour said that the comparison of evidence with the contemporaneous account of what happened is an important forensic tool for testing a person's evidence, and referred specifically to the difference which was highlighted. It would be obvious that the jury would realise from this direction that it was matter for them to weigh up in judging the credibility of the complainant's evidence.
(Page 22)
- Counsel for the defence had addressed the jury on this aspect suggesting that the evidence be rejected on this account.
47 There is no ground 6. Ground 6a claims that his Honour erred in failing to give adequate directions as to the evidence of the witness Martin. I mentioned that Mr Martin was called by the applicant to give evidence in respect of the first count. His evidence was that the applicant returned from the 21st birthday party to his house and that the two then went to the casino. The effect of his evidence was that the applicant did not go into the bedroom at the time the complainant said he did. Mr Martin was cross-examined by the Crown as to his convictions. These included convictions for a number of serious offences for which he served terms of imprisonment. In one case there was a term of 5 years for a conspiracy to commit a crime and in another, 2 years imprisonment for breaking and entering. There were other offences which he admitted. It was put to him that he was placed on a 2 years recognisance for breaking and entering a dwelling house and he replied that in effect he had broken into business premises, but never a dwelling house. The direction his Honour gave was: (AB433)
"You have heard evidence of the background character of the witness, Mr Barry Martin. You have heard evidence of the cross-examination of a number of convictions, his record being put to him.
Now, he is an important witness, of course, as all witnesses in this trial are important. The sole purpose of admitting the evidence of Mr Martin's background, as far as the crown is concerned, is to put before you evidence of what the crown says is his bad character and it's simply to establish, if the crown does by this evidence, that the witness is not a witness of truth. If that evidence of bad character has that effect you are entitled to discount or ignore that evidence or part of it or some of it, whatever, but do not assume that because a witness has a record of convictions he is not telling the truth, otherwise, of course, a witness who has a record could never satisfactorily give evidence in a court.
The evaluation of his evidence is a matter entirely for you. What you must be very careful about is this: you must not use that evidence of his bad character otherwise than to assess the
(Page 23)
- general credibility of that witness, Mr Martin. Under no circumstances may you use that evidence to suggest that an association by the accused with him as a person of bad character or prior convictions in some way indicates the accused himself has a propensity to commit offences or himself is of bad character. That is simply not the case and you must be meticulously careful to avoid such an association of ideas."
48 It is submitted that the direction was deficient in three respects. The first was that the jury should have been told that they could not use convictions which the witness did not unequivocally admit. I would see no merit in this contention. It would be obvious to the jury that they would not use material of this type when the witness said specifically that it was not correct. If the jury decided to take into account his convictions for the purpose of credibility, then they had before them admitted convictions of a very serious nature, far worse than those matters which the witness did not admit. It would be inconceivable that the convictions not admitted would have had any effect on the jury.
49 The second submission is that his Honour should have said to the jury that Mr Martin's convictions do not indicate that the accused himself has a propensity to commit offences of the type with which he is charged. I consider his Honour's direction, which I have set out, sufficiently covered this aspect.
50 The third submission is that it is claimed that his Honour should have told the jury that if they found that the witness Martin was a witness of little credit, it was still open to them to find the applicant not guilty of count 1. I would see such a direction as being unnecessary. The directions actually given made it clear that they could not convict of that count unless they were satisfied on the complainant's evidence that the offence occurred.
Inconsistent Verdicts
51 There is no ground 7. Ground 8 claims that the verdicts of guilty on the first two counts are inconsistent with the acquittal on the third count. The ground states, "There was no corroboration evidence or any evidence additional to that of the complainant of the alleged offences and accordingly the whole of the prosecution case depended on the evidence of the complainant being accepted. If it were not accepted on one count it would not be accepted on the other two counts."
(Page 24)
52 The test to be applied has been formulated by the High Court in Jones v The Queen (1997) 191 CLR 439. Gaudron, McHugh and Gummow JJ, when dealing with a question of inconsistency of verdicts, said that, having regard to the statements in M v The Queen (1994) 181 CLR 487 at 523, there can be no doubt that "a miscarriage of justice" also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just. Their Honours, in outlining the test for determining whether a verdict is unsafe or unsatisfactory said (page 450):
"In M, Mason CJ, Deane, Dawson and Toohey JJ said (at 493) that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'
The majority judges explained the application of the test as follows:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to
(Page 25)
- conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.' "
53 In the case they were considering, they considered that the acquittal damaged the credibility of a complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of a complainant's account of the events which were said to give rise to that count.
54 In the present case the third count was alleged to have occurred on a date unknown between 28 February 1993 and 1 July 1994. The complainant when asked to describe the offence said that the next time it occurred was "in 1994 as well". She said her aunt had come from Melbourne in the first part of the year, but she was not sure of the date. She said that her aunt came over a couple of times a year to visit "my nanna's grave". The complainant said that on the day of the offence her aunt was taken to see the applicant's boat, Pretty Woman. She said after a while the aunt left leaving the applicant and herself on the boat and at that time they were outside the cabin. The complainant said that when the aunt left the vessel, the applicant pulled her into the cabin and she described how the act occurred. She said after it ocurred she got up and walked back to the car and they left and nothing was ever said and she said, "he acted like nothing had happened". In her evidence in chief she did not connect this incident with her grandmother's death other than saying that the aunt came across to see the grave nor did she say they went to the cemetery that day.
55 She was cross-examined at length where it was suggested that they went to the vessel and then went to the grave. Ultimately she was asked to sum up the matter in cross-examination and said she remembered going to the cemetery, but was not definite if that was the same day that they went to look at the launch at South Perth. She remembered the name of the boat being Pretty Woman and she had seen it before. She said that when her aunt left the boat she did not know if her aunt was going to the cemetery and she did not say where she was going.
56 The Crown, as part of the Crown case, called the aunt. The aunt's evidence did not support the complainant as to the time the family were shown over the launch and, as it transpired later in the trial, it did not support the applicant's evidence. The aunt said in evidence that her
(Page 26)
- mother died on 2 April 1992 and she would make regular visits to Western Australia with her family on the anniversary of her death and on her mother's birthday and sometimes at Christmas in order to visit the grave. She was asked by the Crown Prosecutor whether on any of the occasions that she visited Perth she saw one or more of the applicant's boats. She said that she went twice with him to see a boat, but she did not know if it was the same boat or a different boat. She said the first time was at Christmas 1992 and she thought the other time was in 1994 and on this latter occasion, only she and her brother went. In other words the only time she visited a launch with both the applicant and the complainant was in 1992 and not 1994. The launch could not have been Pretty Woman as the applicant acquired that vessel in 1994.
57 Counsel for the defence addressed the jury on the basis that the aunt had made a mistake as to the date and that she supported the applicant's account. His Honour addressed the jury on the assumption that if the aunt was mistaken as to the year, then the description she gave when the family were on the vessel did not support the complainant's case inasmuch as the two were seen at the car when the aunt left, whereas on the complainant's case they would still have been on the vessel.
58 I consider that the convictions on the other two counts can be explained on the basis that the jury did not believe the applicant's evidence generally by reason of the first two convictions. The jury had been instructed to look at the complainant's evidence with great care and to treat each matter separately. The jury were then required to assess the position that a witness called by the Crown to support the complainant's evidence as to the date a vessel was visited and the identity of the vessel said no visit was made by her with the complainant on the date in question. Her evidence was the visit described by both the complainant and applicant was at an earlier time and prior to the applicant acquiring the vessel Pretty Woman. His Honour referred to the fact that the aunt's evidence did not support the complainant. It did not do so because the aunt's evidence showed that the only time that they were on a launch together was at a much earlier time. I consider the aunt's evidence as to time would be a likely cause for the jury not to convict having regard to the directions they received and it is not an indication that the complainant's overall credibility was diminished.
Unsafe Verdict Generally
59 The final ground (ground 9) claims that the verdict generally was unsafe and unsatisfactory as the evidence of the complainant together with
(Page 27)
- the evidence called by the defendant must have left the jury in a reasonable doubt. I have set out the tests to be applied. In this case the evidence of the complainant, if accepted, would establish the charges. It is submitted, however, that there are factors present to show that the evidence could not be true and which would raise a doubt which the jury should have experienced.
60 I shall refer, firstly, to a number of factors raised by Mr Tehan, which I consider would not lead to this conclusion and I shall then examine a matter that, at first sight, may point to such a conclusion. Mr Tehan refers to alleged inconsistencies between the complainant's evidence and the prior statements. There was no inconsistency on the fact that the acts occurred as outlined by the complainant at the places referred to by her. There were some inconsistencies as to detail. These were before the jury and it would be a jury question whether or not to accept the complainant's evidence in the light of these inconsistencies. Mr Martin did not support the complainant's account but it would be clearly open to the jury not to accept Mr Martin's evidence.
61 The complainant, in cross-examination, was asked to give a description of items, such as speakers, she saw inside the bus and this did not correspond to evidence referred to by the applicant. The applicant's evidence indicated that this was a description of the bus as it was some considerable time earlier. This again was before the jury. The complainant had seen the bus from time to time and if the account the complainant gave were true, then the shock of events would have been considerable making it likely that she could mistake detail. As she had visited the bus before there may have been a mistake in the sequence. These were matters for the jury to weigh up.
62 I shall now consider the matter I regard as the most important matter in this area. The evidence showed that when the complainant was 13 or 14 years of age she had an intense desire to meet her father whom she had never seen. Her mother contacted the applicant's mother who on the face of it would appear to have been a dominant member of the applicant's family. When the complainant made contact, not only was she happy, but she wanted to be a member of that family. She called the applicant's mother her grandmother and the applicant's sons, her brothers. The death of the applicant's mother played a significant part in the family and the family made a point of celebrating the anniversaries and of visiting the grave. This would be done on the birthday of the mother and on the anniversary of her death and it would seem on other occasions including Christmas. One of the ceremonies was to release a large number of
(Page 28)
- balloons from the grave so that they went skywards. There were a large number of pictures taken which showed that the complainant shared in the grief at the grave and also shared in the happiness of other family gatherings. The photographs showed she was very happy in Bali. This was after some of the alleged events. After the final incident the complainant did not completely break contact, although on her evidence contact lessened considerably. In August 1996 the applicant was sentenced to a term of 5 years imprisonment for conspiracy to commit arson. The complainant wrote some moving and endearing letters to the applicant which it is submitted are inconsistent with what the complainant said occurred. One of the things she said was that his being in jail was like not having a father again. The complainant was cross-examined at length about this and gave explanations in her re-examination. Reference was also made to the fact that she did not report the matter.
63 The complainant gave the jury a number of reasons in respect of these matters. She said she did not report the matter initially because she was afraid of the applicant. This would have ceased by the time he went to prison. However, a year still elapsed before she did report it. Her explanation was she wanted to keep it to herself and did not want people to know about what occurred. She tried to put it out of her mind.
64 The circumstances in which she did ultimately report it were not before the jury by reason of his Honour's ruling, but were in her deposition. This showed that when she was in the presence of the aunt, one of the nieces was talking to her and started to press her and ask her if the applicant had done anything to her and she then said that she had and later explained what happened.
65 Her evidence to the jury was that he was her father and that she loved him. She was prepared to overlook the first happening as it was committed whilst he was under the influence of liquor. It was a penetration with the finger. She said that her feelings altered after the second occurrence, but she still regarded him as her father. She said in respect of the letters: (AB182)
"Well he was due out of jail very soon so I wasn't about to rub him the wrong way, if you like to say. He was due out of jail not long after those letters were written and I wasn't about to get off side with him and so I just continued on like nothing had ever happened."
(Page 29)
66 I consider these matters must be looked at very carefully. I consider, however, that the answer is that they were fully before the jury. She was cross-examined at length on all aspects of her life once she met the applicant and she was cross-examined again at length in respect of the letters she wrote. The jury then heard her explanation in re-examination as to how she felt and why she wrote the letters. The jury still believed her and I consider it must be said that it was open to them to do this. The jury had the benefit of both the complainant's account and the applicant's account. I consider in these circumstances it was open to the jury to accept the complainant's evidence. I do not consider that it can be said that the jury ought to have experienced a doubt and, accordingly, I do not consider the verdict was unsafe.
67 I would refuse leave.
68 WALLWORK J: I have had the advantage of reading the reasons published by Pidgeon J with which I agree. There is nothing I wish to add.
69 MURRAY J: I have had the advantage of reading the reasons published by Pidgeon J. I agree with them in their entirety. There is nothing I could usefully add.
28
1