R v Crosby[2002] QCA 213

SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  The appellant appeals against his convictions for the following offences:

(1)On a date unknown between 1 January 1999 and 1 April 1999 unlawfully and indecently dealing with a child under the age of 12 years of whom he was the guardian;

(2)On a date unknown between 5 April 1999 and 30 June 1999 unlawfully and indecently dealing with a child under the age of 12 years of whom he was the guardian;

(3)On a date unknown between 1 May 1999 and 30 June 1999 attempted rape.

In each case, the same girl was involved.  At the times in question she was aged 11 and the daughter of the appellant’s de facto spouse.

2. The offences have been listed above in chronological order given the complainant’s evidence; on the indictment they were in the order (3), (1) and (2).

3. The complainant moved to Western Australia where her natural father resided at the end of 1999 and first complained of these offences towards the middle of 2000. There were apparently delays in the police investigation; the complainant was not medically examined until 14 September 2000. There was a committal hearing in Cairns in about July 2001 at which the complainant was extensively cross-examined and the trial commenced in Cairns on 4 February 2002 at which time the complainant was aged 14. Whilst there was no recent complaint, the delay of about 12 months before complaint was not such as to put this case into the Longman (1989) 168 CLR 79 or Doggett (2001) 75 ALJR 1290 category.

4. There was no corroboration or other evidence supporting that of the complainant. The medical evidence was equivocal as to penetration. The appellant made no admissions to police and did not give evidence.

5. The complainant’s evidence at trial as to the three episodes can be broadly summarised as follows:

(1)The appellant told her to go to the cyclone shelter which was a roomed structure away from but near the house.  Her mother was away and her younger sister Jessica was watching television.  He asked her to take off her clothes and removed his own.  They then both lay on the bed.  He placed his hand on her vagina and moved it around for about two minutes.  The complainant gave evidence it hurt a bit, like a pressure and then a scratching.  Her young sister called out, and they put their clothes back on and walked out.  The appellant said, “Just don’t tell anyone” and “If Jessica asks what we were doing say we are fixing the generator.”

(2)At about 9.00 pm she was sitting on a sofa watching television.  Her mother had gone to bed.  Jessica was sitting on a beanbag watching TV and the appellant was sitting on the sofa with the complainant.  She was wearing t-shirt, boxer shorts and underwear.  She felt the appellant’s hand touch her above the knee and go up under her boxer shorts.  She moved away to the end of the sofa, but the applicant continued to slide his hand under her boxer shorts and put it on her vagina.  There was pressure and a scratching pain.  Nothing was said.  It lasted two or three minutes.  He took his hand away and told her to go to bed as she had school next day.

(3)On this occasion, her mother was at work and Jessica was watching TV.  The appellant called her into the cyclone shelter and told her to take off her clothes.  He took off his clothes and they both lay on the bed.  He touched her vagina for some time and then went to a shelf and took something from a jar.  He rubbed his penis.  He then spat on his fingers and moved his hand around on her vagina.  He lay on top of her;  her legs were together and his were apart.  He tried to insert his penis and she had a sudden pain;  she thought it went in a little bit.  The pressure of his penis lasted about ten seconds.  He said, “Oh, there you go, your cherry’s popped” and then told her “Better get changed and see how Jessica is.”  When she went to the toilet she noticed a little bit of blood on the toilet paper.

6. Three grounds of appeal were argued. The first was that the verdicts were unsafe and unsatisfactory primarily because of inconsistencies and deficiencies in the complainant’s evidence. The second ground was amended slightly during the hearing so that it read:

“The learned trial judge erred in the circumstances of the case in not giving the jury a warning of a kind which brought home to the jury the need to scrutinize with great care the evidence of the complainant before arriving at a conclusion of guilt.”

As the submission developed it became clear counsel was not contending a Longman warning should have been given, but rather a direction of the type referred to in R v Robinson (1999) 197 CLR 162.  The third ground of appeal contended there was insufficient evidence to support the direction of the trial judge that the complainant be screened from the appellant whilst giving evidence.

7. With respect to the first ground the appellant relied on the following deficiencies;

1. the vagueness of the dates on which it was said each incident occurred;

2. no complaint notwithstanding the complainant was alone with her mother on many occasions and had ample opportunity to do so.

8. The complainant’s evidence was that the first incident occurred just before Easter 1999, the second about a month or two after the first and after Easter, and the last about half way through 1999. The vagueness disadvantaged the defence and that was a matter addressed in the summing up.

9. When cross-examined about her reasons for not complaining earlier the complainant mentioned the appellant’s admonition on the first occasion not to tell anyone, and she also said “I was too afraid to say something because then I knew there would be a huge fight.” She also said that initially she “didn’t know it was a wrong thing”. Again this was an issue addressed in the summing up.

10. The inconsistencies in the complainant’s evidence relied on by counsel for the appellant can broadly be itemised as follows:-

1. In giving evidence in chief at committal she said the incidents occurred in 1998 when she was in Grade 6 whereas her evidence at trial referred to 1999 when she was in Grade 7 as did her original statement.  It was agreed that later in evidence at the committal the complainant corrected her evidence to 1999, but the learned trial judge refused to allow the prosecutor to elicit that before the jury during re-examination.

2. During cross-examination at committal the complainant said episode (1) was similar to an incident which occurred in 1998 whereas her evidence at trial was that there had been no such incident in 1998;

3. During cross-examination at committal she adopted a leading question which placed episode (3) before episode (2).  All her other evidence at committal and trial placed episode (2) before episode (3);

4. It was submitted there was inconsistency in her conduct because she gave the appellant rather than her natural father a card on Father’s Day after the incidents.  She also telephoned and wrote to the appellant after moving to Western Australia;

5. Once during cross-examination at committal she said episode (1) occurred after Easter but all her other evidence was that it occurred before Easter;

6. There was inconsistency in the complainant’s evidence as to whether one or more fingers had touched her vagina during episode (1).  It became clear she was making assumptions because she could not see;

7. When asked what she felt during episode (1) at committal she gave an answer about her emotional feelings, whereas at trial she gave an answer as to physical feeling;

8. At the committal she adopted a leading question to the effect that after episode (1) she told Jessica they had been fixing the generator, whereas at trial she denied saying that to Jessica;

9. The complainant’s evidence at committal and trial that after episode (1) the appellant said to her not to tell anyone was not mentioned in her original statement;

10. With respect to episode (2) the complainant adopted a leading question at committal indicating this incident occurred in July/August, whereas at trial her evidence was that it occurred after Easter only about a month or two after episode (1);

11. With respect to episode (2) the complainant in her statement said that Jessica was lying on the floor at the time, whereas her evidence at trial was that Jessica was on a bean bag.  Further at committal under cross-examination she said that Jessica had been sitting on the floor but had gone to bed with her mother at the time the touching incident occurred.

12. With respect to episode (3) the appellant contended there was an inconsistency in the complainant’s evidence as to how often he tried to put his penis in her.  Under cross-examination at one point she said, “He tried it just about every time he took me down to the shelter, to put his private part inside of me.”  When it was put to her that was an inconsistency with her earlier evidence that he had only put his private part inside her once she replied, “No, he tried many times, but only actually got in there once.”  Whether or not there was an inconsistency here depended on how one interpreted the evidence, a matter for the jury;

13. In her statement the complainant said, “He put his private part inside my private part.”  Whereas at committal proceedings she confirmed that the penis did not go into her vagina.  She agreed that she knew by then that the medical evidence on the issue of penetration was equivocal.  Again whether or not there was an inconsistency here depended upon the interpretation of all her evidence, a matter for the jury.  Again at trial she asserted there was some penetration;

14. With respect to episode (3) the complainant in evidence in chief at committal did not refer to the appellant touching her vagina with his fingers before trying to insert his penis, whereas under cross-examination at committal and in her evidence in trial she referred to the appellant touching her vagina initially;

15. With respect to episode (3) in her statement the complainant said she saw the appellant rub some cream from the jar on his penis, whereas at trial she said the appellant grabbed a jar but she did not see him do anything to his penis with its contents.

11. Allied to those inconsistencies counsel for the appellant referred to four other matters which were more improbabilities than inconsistencies:

1. It was submitted that the complainant’s evidence as to the positioning of their bodies when episode (1) occurred made the touching she described inherently unlikely.  This was a jury issue.

2. With respect to episode (2) the complainant’s mother was in bed on the other side of a wardrobe from the sofa on which the incident allegedly occurred;  there was no wall making a separate bedroom.  It was said on the appellant’s behalf that in the light of that the risk of detection was high and that in consequence the complainant’s evidence as to what occurred was improbable.  However, against that can be said that the incident only involved the appellant putting his hand under the complainant’s clothing for a relatively brief period of time whilst both were on the sofa;

3. With respect to the same incident it was said that the physical positioning of both on the sofa according to the complainant’s evidence was unlikely physical positioning for the incident to occur.  This was very much a jury issue;

4. With respect to episode (3) it was submitted that the complainant’s description of her lying straight with her legs closed and the appellant lying over her with his legs apart was an unlikely physical positioning for penetration to be achieved.  Again this was very much a jury issue.

12. Against that background the following passages appear in the summing up of the learned trial judge:

“I want to say something to you about [the complainant’s] evidence.  There is no doubt – there could be no argument that there have been a number of inconsistencies concerning her account of this incident given in the past.  They’ve been clearly demonstrated.  It’s unarguable that there have been a number of inconsistencies.  She has given three formal accounts of these incidents;  one in her original statement to the police;  the second at committal proceedings in July this year; and three in this court;  and there have been inconsistencies.  Now, members of the jury, you use your common sense when it comes to dealing with such inconsistencies.

I won’t use examples of inconsistencies that have been exposed here, because it may give the impression that I am trying to suggest to you that you should ignore some and that perhaps others are significant;  because the reality is, it’s for you to decide the significance of any particular inconsistency.  And it may even be a matter for you to decide whether an inconsistency, if it was the only inconsistency, didn’t matter;  it was excusable;  explicable;  that there are so many inconsistencies that it makes [the complainant’s] reliability as an accurate historian doubtful.  But you use your common sense.

You probably realise after this experience, if this is your first experience with lawyers, that lawyers perhaps deal with words, individual words somewhat more precisely than people out in the community do.  By the same token, a looseness with words is not an excuse for a glaring inconsistency between an account of a particular incident given on one occasion and an account of the same incident given on another occasion.  Your common sense will tell you that ordinary people, adults, if they’re asked to describe a particular incident or a series of incidents in their lives on three separate occasions, they certainly are unlikely to use the same words to describe the group of incidents every time they give an account of it.  In fact, if [the complainant] had recited her account of these three incidents in exactly the same words each of the three occasions she had given a description, it might well be suggested that she had learnt it off by heart.

So, bear that in mind.  These are matters of common experience, I’m sure that people don’t always use the same words.  And it may well be that, from time to time, when people are describing a particular incident or series of incidents in their lives, they may overlook a particular detail on one occasion, but not overlook it on another.  And they might overlook a different detail on another occasion. 

. . .

So, as I’ve said, use your common sense about these questions of inconsistencies and the like.  As I say, there is no doubt at all that there have been several inconsistencies exposed, and I am not going to go through them or consider any one of them.  Mr Henry exposed them very capably during his cross-examination of [the complainant] and he’s reminded you of, if not all of them, certainly the good bulk of them and what he would submit to you are the most significant.

So you don’t excuse – it would be quite wrong to excuse inconsistencies on the basis that [the complainant] was a child when these things – when she says these things happened, and is still quite young.  But that’s the fact of the case.  She was eleven during 1999.  It’s now the beginning of 2002.  There’s been a lapse of time.  These are the facts of the case.  They’re the bare facts.  So these are not matters to be ignored.  For instance, if she was called upon the day after one of these events happened, if it happened, and she gave a description of it, and then the following day she gave another description, and the following day gave a third description, you might be more critical of any inconsistencies because it’s very soon after the event.  So, bear in mind the timetable . . .  Not to excuse her, but to approach the matter as ordinary members of the community applying your ordinary common sense to the whole of the situation.

. . .

This then leads me to another matter that I want to say something to you about.  Consciously or perhaps only sub-consciously, members of the jury, you may be left with the impression that the case is somewhat one-sided.  You’ve only heard [the complainant’s] account of what occurred on these three occasions.  It’s probably fair to say that you’ve also been – had it drawn to your attention that on other occasions she’s given differing accounts to varying degrees.  This goes beyond just a matter of [the appellant] having no obligation to prove his innocence. You should bear in mind in considering whether or not you accept [the complainant’s] evidence, the difficulties which the circumstances of this case have created for [the appellant] in any – in terms of any possibility of actively defending it.

. . .

There has been – there was a considerable delay after [the complainant] says these events occurred, before she told anyone about it.  That, of itself, may be a matter which is relevant to deciding whether or not you consider her to be a truthful and reliable witness.  She’s given you an explanation as to why the delay;  she didn’t appreciate the seriousness of what he’d done to her and she was concerned about there being a big fight in the family if she raised it.  But it’s a matter for you whether you accept that explanation as being a plausible one.  On the other hand, in the normal course of events, if somebody has a crime committed against them, you might expect them to tell someone, make a complaint to someone immediately.  So, you can weigh that up as you see it.  But whether you accept her explanation or not, the fact is there was a substantial delay after she says the events took place until when she told someone about it which resulted in the investigation getting under way.

That has two results.  It means she is unable to nominate, with any precision at all, the date or days upon which she says these events happened;  and there is the lapse of time, the fact that if these things happened, then she might be able to remember them.  If they didn’t happen, how can [the appellant] or anyone else who might be able to offer something meaningful about these occasions have any recollection of them?  Two events are said to have occurred on a Saturday whilst [the complainant’s] mother was at work.  Well, there’s a Saturday in every week of the year, 52 Saturdays, and if you look at the dates over which the events are alleged in those indictments, there are quite a number of Saturdays in each of those periods.

The opportunity to investigate a particular date may not have come up with anything, but bear in mind that the defence has been deprived of the opportunity to investigate a particular date.  You see, if [the complainant] said, ‘It happened on a particular Saturday.  I remember it.  It was the Saturday before my birthday.’ – She mightn’t know the date, but because you know her birthday, you can work out which Saturday it is and you can get a date.  It’s at least a theoretical possibility that, upon investigation, it might be discovered that [the complainant’s] mother didn’t go to work that Saturday.  It might be discovered that [the appellant] wasn’t at home that Saturday morning and he’s got some people he was with who would be able to prove it.  That’s at least another theoretical possibility.

But what has happened by reason of the delay, by reason of [the complainant’s] inability – which might well be understandable – she can’t specifically nominate a date.  By reason of that, the defence has been deprived of any opportunity to investigate the details of the circumstances which prevailed on that particular day which would enable an innocent man, a person who’s presumed to be innocent, to be able to perhaps effectively challenge the allegation that he did these things, that he committed these offences on a day and at a particular time;  which leaves him in the position where, all he can really say to you is, ‘I’m not guilty.  I didn’t do it.’  So bear that in mind in considering this question whether or not you accept that the prosecution has proved the charge.

. . .  There’s really no opportunity for [the appellant’s] side of the story to be told because he’s not told exactly what days we’re looking at and the same applies to the incident in the lounge room.  It was a Sunday night, she says.  Well there’s a Sunday night every night of the week, and you can imagine in the household how many nights – how many Sunday nights there would have been where Mum might have gone to bed early and the other three are sitting in the lounge watching television.  It’s a routine, sort of, event in households all over Australia.  So bear that in mind.  Bear that in mind when you’re considering the evidence. 

Bear in mind also, members of the jury, that there is no evidence, no independent evidence, which supports [the complainant].  That doesn’t mean it’s fatal.  The law isn’t that, you know, you can only believe someone if there’s some independent evidence to support them.  If your impression is that [the complainant] is a truthful witness, and you believe her and you’re satisfied beyond reasonable doubt that she’s telling the truth, you’re entitled to do that.  But bear in mind there’s no evidence to support her.”

13. There was an overnight adjournment after the learned trial judge had virtually completed his summing-up. All the passages referred to above were put to the jury prior to that adjournment. At that stage, in the absence of the jury, the learned trial judge asked counsel were there any “requests for re-directions arising out of how I’ve gone so far?” Counsel for the appellant raised one issue which is irrelevant for present purposes. The following morning, again before the jury was brought into court, the learned trial judge indicated he wanted to be sure that defence counsel was “satisfied with my directions in terms of the disadvantage of the accused so far as the width of the time particulars and the lack of particularity there?” To that defence counsel responded that he “didn’t notice anything that warranted complaint”. To that his Honour said that he was not “going to say anything more about that subject”.

14. Thereafter the learned trial judge concluded his summing up and the jury retired to consider its verdict. There were no relevant requests for re-directions at that stage.

15. I have set out a rather lengthy quotation from the summing up because it is important, in my view, to consider the submissions raised on appeal in the light of those passages.

16. In considering the first ground of appeal, the verdicts were unsafe and unsatisfactory, the court must bear in mind the test as outlined in M v The Queen (1994) 181 CLR 487 especially at 493-5.  None of the asserted 15 inconsistencies in the complainant’s evidence was so substantial or so significant as to of itself produce the conclusion that the verdict was unsafe and unsatisfactory.  Indeed counsel’s submission on appeal impliedly recognised that because the main thrust of the argument was that it was the inconsistencies regarded globally which produced that result.

17. Many of the inconsistencies could well be explained away on the basis that a young complainant was overborne by a cross-examiner into accepting propositions too readily and without realising the implications of adopting what was put. Such issues are essentially jury questions and this court ought not lightly conclude that the presence of a number of inconsistencies which arose in such circumstances resulted in the verdict being unsafe and unsatisfactory.

18. Having regard to the whole of the complainant’s evidence, and taking into account the lengthy directions in the summing-up with respect to the inconsistencies, it cannot be said that the ultimate verdicts of guilty were unsafe and unsatisfactory. None of the inconsistencies asserted, either alone or in conjunction with others, necessarily weakened the overall thrust of the complainant’s evidence. In the end it was for the jury to determine the effect such inconsistencies had on the credibility of the complainant and on the ultimate question whether that evidence could be accepted beyond reasonable doubt.

19. A similar conclusion must be reached with respect to those matters which have been categorised as improbabilities in the complainant’s evidence. It was not physically impossible for the events to have occurred as the complainant claimed, and hence it was for the jury to determine whether the asserted improbability should result in the complainant’s evidence being rejected.

20. Of more concern is the vagueness of the complainant’s evidence with respect to the date on which each of the offences occurred. However it is not an infrequent feature of cases of this type that the complainant is unable to give a precise date on which the offence occurred. That does not mean that the prosecution cannot proceed; it does, however, call for an appropriate direction from the trial judge. Here the matter was addressed in the summing-up and experienced counsel for the appellant did not seek any further direction thereon. Given the complainant’s evidence and what was said in the summing-up I am not persuaded that in the circumstances of this case the inability of the complainant to specify the date on which each of the offences occurred has occasioned a miscarriage of justice or renders the verdicts unsafe and unsatisfactory.

21. Having read the evidence and the summing-up I am not persuaded that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of the offences.

22. So far as the second ground of appeal is concerned, it is true that in the summing-up, one does not find the term “warning” or the phrase “scrutinise with great care the evidence of the complainant” used by the learned trial judge. But he did remind the jury that there was no independent evidence supporting that of the complainant and he did draw to their attention the specific weaknesses (inconsistencies and vagueness) in the complainant’s evidence which had to be addressed by the jury in the course of their deliberations. In the light of cases such as Doggett and Robinson it is generally regarded as advisable for a trial judge to use such specific expressions in the course of directing the jury in cases having features similar to this one; but no precise formula must be used in order to make the summing-up appropriate.  Often it is desirable to concentrate on the specific issues in the particular case which require instruction from the trial judge if the jury is to be appropriately instructed as to its task.  Here the learned trial judge drew the jury’s attention to the delay in making complaint, to the inconsistencies and vagueness in the complainant’s evidence, and to the fact that her evidence was not independently supported, and  effectively told the jury that they had to address such issues before they could ultimately be satisfied beyond reasonable doubt that the complainant’s evidence was true.  What was said could best be described as “comment” or “a caution” (cf. Longman at 90-1 and 95-6 and Crampton (2000) ALJR 133 at 140-1).

23. Whilst a warning that the jury should scrutinise the complainant’s evidence with care before convicting could well have been given in this case, the use of such words would not have added materially to what was said in the lengthy passage quoted above. Given all the circumstances of this case “comment” was sufficient to draw the attention of the jury to the issues which had to be addressed.

24. In the circumstances I am not persuaded that the omission of such words from the summing-up constitutes a miscarriage of justice or results in the conclusion that the verdicts are unsafe and unsatisfactory.

25. The third ground relates to the fact that the learned trial judge directed that the complainant be screened from the view of the appellant while she was giving evidence. A television monitor was placed in such a position that a person in the dock could not see the witness box, but it in no way interfered with other lines of sight in the courtroom. Apart from the complainant there was only brief oral evidence from the complainant’s mother and a police officer; they would only have been in the witness box for a few minutes. The television monitor remained in place throughout the trial, so the jury would not have been specifically aware of why it was placed where it was.

26. The submission by counsel for the appellant was that there was insufficient material before the learned trial judge to enable him to conclude that the complainant was a special witness within s 21A of the Evidence Act 1977.  As Thomas J observed in delivering the judgment of the Court of Criminal Appeal in R v West [1992] 1 Qd R 227 at 228 the section gave judges “considerable discretion to enable young witnesses and others who might be considered disadvantaged in court as witnesses to give their evidence with minimum disadvantage, at the same time avoiding unfair prejudice to the person charged.”  The principal contention on behalf of the appellant was that there was no evidence before the learned trial judge from which he could form the opinion that the complainant was a special witness.  The section does not envisage that there should be any formal proof or evidence adduced before the discretion can be exercised.  As Thomas J pointed out in West at common law the trial judge was in control of the courtroom and could give directions as to the position from which a witness should give evidence.  The most relevant consideration, both at common law and under the statute, is that the accused should not be unfairly prejudiced by any such direction.

27. It was said in the present case that the appellant was disadvantaged because, if he was able to observe the complainant giving evidence, he may have recollected matters which could form part of his instructions to counsel and result in particular questions being put in cross-examination. In the circumstances of this case it is difficult to envisage how the appellant could be prejudiced in that way; he clearly heard all of the evidence given by the complainant and, though he could not actually see her, was able to appreciate the environment in which she gave her evidence.

28. This was a case of a 14 year old girl giving evidence as to sexual contact between the person who was effectively her father at a time when she was aged 11. In the circumstances I am not persuaded that the learned trial judge erred in accepting the submission from the prosecution that the complainant should give her evidence while screened from the view of the appellant in accordance with her wishes.

29. It follows that there is no substance in any of the grounds of appeal against conviction and that appeal should be dismissed.

30. The appellant also seeks leave to appeal against sentence. He was sentenced to four years imprisonment for the attempted rape, and two years imprisonment for each of the other two offences; all were to be served concurrently.

31. The appellant had generally good antecedents and only a very minor criminal history; there were no convictions for similar offences.

32. Counsel for the appellant relied on the fact that there was no violence used, that the appellant desisted in the attempted rape very quickly and of his own volition, and that the offences were limited in number and did not form part of a broader uncharged group. The real challenge was to the sentence of four years imprisonment for the attempted rape; it was submitted that the appropriate range was two to three years.

33. On sentence the learned trial judge referred to the fact that such offences were regarded a serious when committed on an 11 year old girl, and he pointed out that there was no indication from the appellant of remorse or regret. The offences had significant impact on the victim. She was required to give full evidence and be cross-examined both at committal and trial.

34. Counsel for the respondent referred to C (CA 479 and 500 of 1994, judgment 15 February 1995), Biddle (CA 317 of 1990, judgment 25 March 1991) and D (CA 303 of 1991, judgment 6 March 1992).  C involved the attempted rape of a 10 year old girl and the sentence of five years imprisonment was held not to be excessive.  Biddle was concerned with the attempted rape of a 13 year old girl who was intoxicated at the time.  It was said by the court that a sentence of five years imprisonment was “on the high side in these particular circumstances” but it was not held to be manifestly excessive.  Similarly D involved the attempted rape of an 11 year old girl.  The attempt at intercourse was discontinued “only because the child’s vagina was too small to receive the applicant’s penis”.  A sentence of six years imprisonment was not disturbed.

35. In the light of those authorities it cannot be said that four years imprisonment in the circumstances of this case was manifestly excessive. Attempted rape of an 11 year old girl by someone in loco parentis is an extremely serious offence which almost always has significant consequences for the victim.

36. In the circumstances the application for leave to appeal against sentence should be refused.

37. The orders of the court should therefore be:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

38. CULLINANE J:  I have had the advantage of reading the reasons of Williams JA.  I agree with those reasons and the orders proposed.

39. JONES J:  For the reasons expressed by Williams JA I agree that the appeal and application for leave should each be dismissed.