Duffy v Police
[2015] NZHC 1899
•11 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000105 [2015] NZHC 1899
BETWEEN DAMIAN JAMES DUFFY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 30 June 2015
Further submissions filed up to 7 August 2015
Counsel:
A Haskett for Appellant
S O'Connor for RespondentJudgment:
11 August 2015
JUDGMENT OF ASHER J
This judgment was delivered by me on Tuesday, 11 August 2015 at 4.30pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
A Haskett, Auckland.
Meredith Connell, Auckland.
DUFFY v NZ POLICE [2015] NZHC 1899 [11 August 2015]
Introduction
[1] On 26 March 2015 the appellant Damian Duffy was convicted by Judge N Mathers of driving with excess blood alcohol after a defended hearing. On the same day Judge Mathers fined him $650, ordered him to pay court costs of $130 and disqualified him from driving for six months.
[2] The incident which led to Mr Duffy being charged took place on 21 August
2014. Mr Duffy was stopped at a checkpoint by a police officer, Sergeant Kennedy. He underwent a passive breath test which indicated there was alcohol on his breath. He was then asked to undergo a breath screening test, which he did, which gave a reading of over 400 micrograms of alcohol per litre of breath. At that stage, at
12.46 am Sergeant Kennedy required Mr Duffy to accompany him to the nearby truck or van where such persons are processed (which I will refer to by the commonly used name of “booze bus”) for an evidential breath test.
[3] Mr Duffy underwent an evidential breath test which disclosed a reading of
568 micrograms of alcohol per litre of breath. Mr Duffy was advised of this result at
12.56 am. Sergeant Kennedy then read to him the advice under the heading “positive evidential breath test given without delay and the Bill of Rights Act 1990 blood procedure” from the standard breath and blood alcohol procedure sheet.
[4] Mr Duffy indicated that he did not wish to speak to a lawyer. The 10 minute period in which a person in Mr Duffy’s situation can elect a blood alcohol test commenced at 1.01 am. It is the Police case that shortly after the start of that period Mr Duffy stated that he wished to undergo a blood test. Sergeant Kennedy arranged for a blood test and it was administered at 1.32 am by a medical officer, Ms Maugham. That test showed a blood alcohol reading of 126 milligrams of alcohol per 100 millilitres of blood.
[5] Mr Haskett for Mr Duffy has raised a number of arguments which he says were wrongly not accepted by Judge Mathers, and which should have led to the charge being dismissed. Overall it is submitted that because there was no admissible evidence of a valid election, there was no evidence the blood specimen was “taken
under” ss 72 and 73 of the Land Transport Act 1998, and therefore that element of
the offence under s 56(2) was not met.
[6] The submissions were extensive, but as best as I can summarise them they contained the following propositions:
(a) The evidence as to the election to have a blood test taken was inadmissible.
(b) At best the evidence of the election was opinion evidence.
(c) There was insufficient evidence on which a Court could objectively find an election to provide a blood specimen.
(d) There was no final election.
(e) In any event the evidence should have been excluded in the Court’s
discretion because it was obtained unfairly.
Was the evidence inadmissible?
[7] It is necessary to go into the evidence in more detail. During the procedures Sergeant Kennedy filled in and (with some exceptions) followed the breath and blood alcohol procedure sheet that is the standard sheet printed by New Zealand Police (version POL515 08/14). He reported the place where Mr Duffy had been stopped, the result of the breath screening test, and filled in Mr Duffy’s full name and noted that he did not wish to speak to a lawyer. Mr Duffy signed the box saying that he did not wish to speak to a lawyer. Sergeant Kennedy also recorded the time that Mr Duffy was given his Bill of Rights advice.
[8] The sheet records the completion of the evidential breath test and the positive reading of 568 micrograms of alcohol per litre of breath. Mr Duffy signed the box recording that he had received advice of the evidential breath test. He signed the box saying that he did not wish to speak to a lawyer.
[9] There is then on the form Section L headed “Ten minute period to consider option of blood”. The 10 minute period was shown as commencing at 01:01 hours and finishing at 01:02 hours. Beside the words “does driver elect to undergo blood test” the word “yes” was circled. There is a place there for the driver’s signature, or for it to be noted that the driver has refused, and this was not signed or filled in. A later section relating to the blood test was filled in and it was noted, amongst other things, “co-operative throughout. Request blood test at start of 10 minute period”.
[10] There was also a blood specimen form completed. There was a section for the medical officer to complete, and in that section it was recorded by Ms Maugham that the driver’s consent was confirmed by a circling of the box stating “yes”. There was also a section for the apprehending officer to complete, and in that section Sergeant Kennedy recorded that the driver’s consent was confirmed by writing “yes” in a blank space next to a question to that effect. The appellant then signed the form and Sergeant Kennedy confirmed the driver agreed to sign by circling a box.
[11] Certain errors in the completion of the procedure sheet became apparent during the hearing:
(a) Sergeant Kennedy did not write down the end of the 10 minute period.
(b)Sergeant Kennedy did not get Mr Duffy to sign in the box showing that he elected to undergo a blood test.
[12] When cross-examined, Sergeant Kennedy accepted Mr Haskett’s proposition that he could not remember the specific words that Mr Duffy had used in requesting the blood test. Sergeant Kennedy stated (in his examination in chief):
Yeah, straight after the 10 minute period had started he asked for a blood test and I said, I can’t remember exactly what I said, but probably something along the lines of “No problem”.
He went on to say that Mr Duffy wrote “yes” to wanting a blood test in the blood specimen form.
[13] When cross-examined by Mr Haskett he reiterated his evidence that
Mr Duffy had requested a blood test. He said:
The only thing I took to be a request for a blood test Your Honour was that within one minute of starting, or one minute of starting the 10 minute period, which is kind of unusual, he requested a blood test. So that indicate it was pretty forthright and then he wrote in his own hand in the blood specimen form that he would like one, Your Honour, so …
He later reiterated:
Your Honour, he said yes, he wanted one, within one minute of the start of the 10 minute period.
[14] This statement was in response to extensive cross-examination questioning challenging his recollection of events. Having heard all that evidence Judge Mathers recorded in her judgment:1
I am entirely satisfied having heard and seen Sergeant Kennedy, that the defendant voluntarily requested a blood test be taken shortly after the 10 minute period commenced, and that it was at the time recorded by Sergeant Kennedy.
[15] Section 72(1)(b) of the Land Transport Act 1998 provides:
72 Who must give blood specimen at places other than hospital or surgery
(1) A person must permit a … medical practitioner or medical officer to take a blood specimen from the person when required to do so by an enforcement officer if—
…
(b) The person has undergone an evidential breath test under section 69(4), and—
(i) It appears to the officer that the test is positive; and
(ii) Within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), the person advises the officer that the person wishes to undergo a blood test;
[16] Section 27(1) of the Evidence Act 2006 provides:
1 Police v Duffy DC Auckland CRI-2014-004-9854, 26 March 2015 at [17].
27 Defendants' statements offered by prosecution
(1) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.
The word “statement” is defined in s 4 of the Evidence Act as follows:
statement means—
(a) a spoken or written assertion by a person of any matter; or
(b) non-verbal conduct of a person that is intended by that person as an assertion of any matter
[17] Mr Haskett’s argument is that there was no admissible evidence that Mr Duffy had advised Sergeant Kennedy that he wished to undergo a blood test. He submitted that given that Sergeant Kennedy could not remember the exact words that were used, he was not giving primary evidence of what was said to him by way of a defendant’s statement under s 27(1) of the Evidence Act. There was no evidence of any statement at all, and at best Mr Duffy was giving a lay opinion about what was said.
[18] Mr Haskett’s submission confuses the nature of a “statement” with the inevitable vagaries of a witness’ recollection of what was said. A verbal election to undergo a blood test is an oral assertion and falls under the definition of a “spoken or written assertion” under s 27(1). A witness when recounting a statement made by a defendant will often not be able to recall and describe to the Court the exact words used, and a statement does not cease to be a statement when the listener witness cannot recall each expressed word.
[19] When Sergeant Kennedy said Mr Duffy requested a blood test, he was giving evidence of Mr Duffy’s “spoken or written assertion” that he wished to give such blood. He was referring to a statement by Mr Duffy. The fact that Sergeant Kennedy could not remember the exact words does not alter the nature of what was said by Mr Duffy or what was heard by the Sergeant. Any imperfection in recollection can of course be taken into account in assessing the reliability of the evidence, but a lack of recall of exact words gives rise to no admissibility issue.
Mr Duffy’s statement remained a statement however imperfect Sergeant Kennedy’s
recall.
[20] It can also be observed that Sergeant Kennedy, as he robustly reminded the Court when giving his evidence, dealt with many persons that night and many persons in the months prior to him giving evidence. It could be expected that a truthful witness might not recall the exact words in such a situation.
Opinion evidence
[21] “Opinion” is defined in s 4 of the Evidence Act as:
opinion, in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact
[22] It is not correct for Mr Haskett to describe Sergeant Kennedy’s evidence as expert opinion evidence. Sergeant Kennedy was not giving his opinion about any matter. He was simply stating what he had heard, and paraphrasing it in the absence of his recall of the exact words. When a person summarises a statement that has been heard, the person is not giving an opinion, but is recounting a direct factual observation.2 An opinion is a view or belief, but it is not a recollection of a matter of
fact, such as something seen or heard.3 Thus, s 25 of the Evidence Act and the
considerations that apply to expert evidence do not arise.
Insufficient evidence
[23] It was of course open to the Judge to find that she was not satisfied beyond reasonable doubt that Mr Duffy had elected to undergo a blood test. However, she quite explicitly in her judgment accepted Sergeant Kennedy’s evidence as correct. She found as a fact that Mr Duffy had voluntarily requested the blood test. There is nothing to indicate that she made any error in her reasoning in reaching that conclusion, or that there was not sufficient evidence before her on which to justify it.
My reading of Sergeant Kennedy’s evidence indicates that he spoke in a
2 In Taiatini v R [2013] NZCA 593 at [10] it was stated that “direct factual observations” are not
opinions.
3 See the discussion in Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Brookers, Wellington, 2014) at [EV23.02].
straightforward and believable manner. Thus, without any corroboration at all it was entirely open to the Judge to find as a fact that Mr Duffy had voluntarily expressed a wish to give blood.
[24] However, there was in addition some corroboration of this. First, there was the corroboration of Sergeant Kennedy at the time putting a circle around the word “yes” beside the words “does driver elect to undergo blood test” on the procedure sheet. Moreover, there was the note Sergeant Kennedy made at the time that Mr Duffy was co-operative throughout and requested a blood test at the start of the
10 minute period. Further, there was the note of Ms Maugham on the blood specimen form that Mr Duffy consented to the blood test.
[25] These corroborative matters may not have been determinative in themselves, but they support the primary evidence of Sergeant Kennedy as to what he heard.
[26] Mr Duffy did not elect to give evidence about what he said, and did not call any other evidence to refute the Sergeant’s testimony. Thus, the only evidence before the Court was that adduced by the Police.
[27] I am satisfied therefore that there was admissible evidence that Mr Duffy had requested a blood test, and that the Judge made no error in her finding that he did indeed make such a request.
No final and valid election?
[28] Mr Haskett also argued that Mr Duffy did not request a blood test, and that in fact what occurred was that he vacillated and was at the most thinking aloud. He relied on a decision of McGechan J in Davison v Ministry of Transport4 where it was found as a matter of fact that while certain sentences uttered by the defendant could be seen as refusing a blood test, on an overview he was expressing different views and vacillating. It was not, Mr Haskett submitted, possible for the Court to make an objective finding that there was a final and valid election, and Mr Duffy was rather
just thinking aloud on the way to his decision rather than making a request.
4 Davison v Ministry of Transport (1987) 2 CRNZ 426 (HC) at 432.
[29] There is no basis at all for this submission. Plainly on Sergeant Kennedy’s evidence and the finding of the Judge, there was an unequivocal election to give blood. There was none of the evidence of vacillation and uncertainty that featured in Davison v Ministry of Transport. As a matter of fact, this submission is not made out.
[30] Mr Haskett also relied on a decision of Baragwanath J in Police v Waata5 where the Judge held that the signing of a blood specimen form cannot be used to fill in a gap in the evidence and that there must be clear evidence of freely given advice that the person wishes to undergo a blood test. On the facts of that case there was no such freely given advice. However, on the facts of this case there was evidence of such freely given advice, and the case does not assist Mr Duffy.
Evidence obtained unfairly
The applicability of cl 5 of the Practice Note to booze bus statements
[31] Mr Haskett further argued that the evidence was obtained unfairly and it should be excluded under s 30 of the Evidence Act. Although he did not in his initial written submissions develop this in argument, in response to questions from me it seemed he was arguing there had been a breach of cl 5 of the Chief Justice’s Practice Note on Police Questioning.6 Given that the issue had been raised, and Mr Haskett’s submission was contested by the Police, I have sought and received further detailed submissions on the issue.
[32] The Practice Note is aimed at Police conduct when questioning a person who is detained in custody or in respect of whom there is sufficient evidence to charge that person. It is stated in the introductory paragraph to be “guidelines for Police questioning”. As was observed in Edmonds v R:7
The Practice Note is now to provide assistance for the police in their questioning of suspects and to the Court in assessing fairness in such questioning.
5 Police v Waata HC Auckland CRI-2005-404-389, 16 May 2006.
6 See Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.
7 Edmonds v R [2012] NZCA 472 at [20].
[33] Clause 2 of the Practice Note states that when a Police officer seeks to question or obtain a statement from a person in custody, the person must be cautioned that there is a right to remain silent, a right to consult a lawyer free of charge, and that anything said will be recorded and may be given in evidence.
[34] In case law in a drink driving context, cl 2 is often referred to without demur.8
That is unsurprising given the cl 2 requirements are replicated almost verbatim three times in the current breath and blood alcohol procedure form: first, when an officer requires a driver to accompany the officer for the purposes of evidential testing; second, before evidential testing, once the driver arrives at the booze bus or Police station; and third, when the driver elects to undergo a blood alcohol test.
[35] That replication used to be explicit in a previous iteration of the breath and blood alcohol procedure form in circulation in 2007, with the form’s caution headlined as “Advice pursuant to New Zealand Bill of Rights Act 1990 and the Chief Justice’s Practice Note on police questioning”.9 There are also suggestions in the case law that the wording of the form’s caution has evolved in response to the introduction and wording of the Practice Note.10
[36] Clauses 1 and 3–4 concern the nature of questions that may be put to members of the public and persons in custody. Clause 5 provides:
Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.
8 Gallichan v Police [2009] NZCA 79; Gallichan v Police [2009] DCR 116 (HC); Salter v Police HC Tauranga CRI-2008-470-18, 10 October 2010; Bath v R [2010] NZCA 527; Marra v Police HC Auckland CRI-2009-404-309, 18 November 2009.
9 As set out in Gallichan v Police (HC) at [10].
10 For example, in Gallichan v Police (HC), criticism was levelled at the Police for using the
Practice Note caution word-for-word in a manner said to be “unintelligible” (at [31]).
[37] Despite the assumption in the case law that cl 2 is relevant to the breath and blood alcohol procedure, it does not appear to have been considered whether cl 5 also applies. It is Mr Haskett’s argument that if a request for a blood test is a “statement” as defined by s 4 of the Evidence Act, it follows cl 5 must apply because it is “any” statement made by a person in custody or in respect of whom there is sufficient evidence to charge.
[38] The Police submits that cl 5 cannot reasonably have been intended to apply to every instance a motorist is escorted to the booze bus. If so, police would be required to record each instance on video (unless impractical or the person declined to be recorded). In particular, it is submitted that the Practice Note is not intended to cover a situation where a motorist makes a verbal election to give a blood sample, and the officer records that election by circling “yes” or “no” on a standard procedure sheet. It is said that in that scenario, the police officer is not questioning the motorist about the alleged offending. The officer is simply recording an election on a form.
[39] Clause 5 is said in broad terms to apply to “any” statement. On its face, s 4 of the Evidence Act indicates that a response to a Police question is a statement as it is an assertion of a matter. Of course cl 5 does not apply to all statements; it would be quite absurd, for example, if a Police officer was required to record a defendant’s answer to the question of whether he would prefer coffee or tea. As the Court of Appeal said in Bloomfield v R, cl 5 is not to be interpreted literally. Rather, a
purposive interpretation is required.11
[40] The purpose of cl 5 is to make sure that there is a full, fair and accurate record of material statements made by defendants on which the Police, alleged offenders on which the Court can rely. It ensures police questioning is conducted in a fair and proper manner,12 and, as was said in Bloomfield v R, expresses a preference for videotaping so that any suggestion of improper conduct by the Police
can be accurately assessed.13
11 Bloomfield v R [2010] NZCA 222 at [23].
12 R v Hennessey [2009] NZCA 363 at [30].
13 Bloomfield v R, above n 12, at [24].
[41] My view is that cl 5 is meant to apply to material statements made by defendants in the context of questioning about alleged offending. Clause 5 is not limited to statements made in response to “investigative questioning”.14 Statements that are procedural (such as an election to consult a lawyer) are required to be recorded to the extent they are made broadly in relation to alleged offending and have material consequences to the defendant in a legal or practical sense. The exclusion of procedural statements and a limitation to investigative questioning would run counter to the clear wording of cl 5 and the broad purpose of the guideline
as set out above.
[42] When a Police officer enquires of a person who has failed an evidential breath alcohol test whether they wish to request a blood alcohol test, the question and response made might be broadly described as a procedural matter or one outside an investigative questioning context. However it is also plain that such a statement is made in relation to alleged drink driving offending and the response provided materially affects the person’s position in a legal and practical sense.
[43] Looking at the matter in a different way, cl 5 contemplates a procedure that should be followed in all circumstances where cl 2 applies. That is implied from the clear link between the clauses in their shared concern with protecting possible defendants, as well as the statement in cl 2(c) that anything said by the person who is being questioned “will be recorded”. The method of recording is not a matter of Police discretion. It is prescribed by cl 5.
[44] It follows from these considerations that cl 5 applies to Police questioning in the booze bus context.
Compliance with cl 5 of the Practice Note
[45] I received submissions from the Police and the defendant as to the practicability of police officers recording by video every statement made by a
14 “Investigative questioning” is defined by s 4 of the Evidence Act 2006 as:
Investigative questioning means questioning in connection with the investigation of an offence or a possible offence by, or in the presence of,––
(a) a member of the Police; or
(b) a person whose functions include the investigation of offences
motorist detained in the “booze bus” scenario. It was Mr Haskett’s submission that if the Police choose to use a booze bus then it is their responsibility to ensure that there are appropriate facilities for video recording. The Police on the other hand submit that is impracticable.
[46] Although the Police submitted a letter setting out how the booze bus was configured and what happened, it is not evidence. However, I can make some assumptions from the evidence properly before me.
[47] The booze bus is in essence a processing facility for considerable numbers of drivers stopped on the road. It can be assumed that given the numbers of persons processed and different tasks that must be carried out in the booze bus, and the likelihood of there being numerous people on the move, that video recording is not practical. It would be unlikely to provide a continuous satisfactory record of everything that was said to a particular defendant. There would also be a need to provide a facility for reviewing the video. The need to record would delay the speed with which persons can be processed. Given the number of different persons who would be there, there could also be privacy implications.
[48] The wording of cl 5 indicates that a degree of flexibility is permissible in relation to video recording as against the other recording options. The headnote states the Practice Note “favours the use of video recording”, and cl 5 itself states that video recording should be preferred unless that is impractical. I accept that at present it would be impractical to expect Police to video record all breath and blood alcohol procedures, given the hurly burly of the booze bus scenario. That does not obviate the need to record statements on audio tape or in writing.
[49] The question arises whether completion of the breath and blood alcohol procedure sheet is a sufficient record in writing in relation to the taking of blood samples. There is provision in the procedure sheet to record the election for a blood test in writing, and the printed election has a place for the defendant’s signature to be recorded or for his declinature to be recorded.
[50] Mr Haskett argued that the completion of the procedure sheet does not constitute a record of the statement in writing. He filed a detailed submission to the effect that the statement recorded should be of the actual words used, and the use of a printed form could mean that actual words were not recorded.
[51] I do not accept this submission. Clause 5 is to be given a purposive of interpretation. The nature of the interview process being undergone and the inevitable pressure of the hurly burly of the booze bus scenario must be taken into account. The Police must process large numbers of drivers who are stopped mid journey, and ask the drivers a string of questions that follow a regulated statutory pattern that except in extenuating circumstances does not differ between each interviewee. If the Police properly fill in the procedure sheet, that sufficiently records the election to have a blood test permanently in writing in accordance with cl 5. Given the circumstances there is nothing inappropriate with the manner employed.
[52] Therefore, I do not expect this conclusion will reflect on Police practice in relation to recording the blood test election, as current practice is not out of step with cl 5.
Opportunity for correction
[53] I now refer to the second half of cl 5, which provides:
The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.
[54] The requirement that a person be asked whether he or she wishes to confirm the written record as correct by signing it, is already adequately addressed at all material points throughout the procedure sheet.
[55] Here the procedure sheet leaves space for the driver to sign next to the question “Does driver elect to undergo blood test”. But Mr Duffy did not sign this aspect of the procedure sheet. It would seem, therefore, that Mr Duffy was not asked if he wished to confirm the written record of his election as correct by signing it, and
did not do so. In my view, therefore, Sergeant Kennedy’s omission to ask Mr Duffy to sign to confirm his consent was a failure to comply with cl 5.
Evidence not unfairly obtained
[56] In the surrounding circumstances that I have set out, where I am satisfied that Mr Duffy did elect on a fully informed basis to give a blood specimen and the officer was acting in good faith, but overlooked the filling in of a box on a new form, the evidence was not unfairly obtained. Under s 30(6) the guidelines in the Practice Note must be taken into account in assessing unfairness, but a breach does not in itself prove unfairness. The officer’s omission was unintentional and of a technical
nature. It did not “undermine the justice of the trial”,15 and did not in my view run
contrary to community expectations of fair conduct by the Police.
[57] I also accept Mr O’Connor’s submission that the Police error in not obtaining Mr Duffy’s signature cannot be seen as having any causative link to his decision to elect a blood test.16 The appellant’s decision was proven to be voluntary, and if asked to do so I consider that he would have signed without hesitation.
Section 30(2) balancing
[58] I also record that even if I had found that the evidence had been improperly obtained, I would not regard exclusion of the evidence as proportionate to the impropriety, if I carried out a balancing process under s 30(2) of the Evidence Act. I do not consider there has been any impropriety, but if there had been, that impropriety would be slight; a single careless act in relation to a new form, involving no bad faith or deliberate action or inaction. There is no “right” for a defendant to have the form filled in, and in terms of s 30(3)(a) no important right has been breached. As I have stated, the impropriety was not deliberate, reckless or done in bad faith so s 30(3)(b) does not assist Mr Duffy.
[59] When I consider that on a balancing of these factors and the other matters referred to in s 30(3), the exclusion of the evidence would be entirely
15 R v Sang [1980] AC 402 (HL) at 456.
16 Richards v R [2014] NZCA 520 at [18] and Boskell v R [2014] NZCA 497 at [9].
disproportionate. This conclusion should not be surprising given the technical and non-deliberate nature of the cl 5 breach.
Conclusion
[60] Despite Mr Haskett’s attempts to raise various defences, there can be no suggestion that there has been a miscarriage of justice in this case. There is no error by the Judge in assessment of the evidence, and her conclusions are clear and unequivocal. The appeal must fail.
Result
[61] The appeal is dismissed.
……………………………..
Asher J
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