SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  I agree that the appeal should be dismissed for the reasons given by White JA.

[2] WHITE JA:  On 9 November 2011, on the third day of his trial, the appellant was found guilty of one count of attempting to possess a marketable quantity of an unlawfully imported border controlled drug (heroin).  He was remanded in custody and sentenced on 22 December 2011 to eight years imprisonment with a non-parole period of two years and nine months.  The sentence had been adjourned to enable a psychological assessment of the appellant to be made.  That report indicated that the appellant’s intellectual functioning fell in the extremely low range.  The appellant seeks to advance this report as fresh evidence in his appeal against his conviction.

[3] On 18 January 2011, by consent of the Commonwealth Director of Public Prosecutions, an order was made extending the time within which the appellant could appeal against his conviction.  The basis for his appeal, as set out in his notice of appeal, is that there is a significant possibility or likelihood that he would have been acquitted had the fresh evidence about his low intellectual functioning been before the jury and thus, there has been a miscarriage of justice.

[4] Leave was granted at the hearing to add a further ground of appeal that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence (given at the trial).”

The issue at trial

[5] The appellant did not give or call evidence.  He did not dispute any of the evidence led by the prosecution and facilitated the efficient disposition of the trial by making admissions.  What was in issue was whether the appellant intended to take possession of a border controlled drug.  That element of the offence would be satisfied if the jury were satisfied beyond reasonable doubt that the appellant believed that the bag, of which he had taken possession, contained a border controlled drug.[1]  The prosecution case was entirely circumstantial.  The appellant contended that the evidence was insufficient to draw a conclusion of guilt to the requisite standard.

The evidence at trial

[6] A female Thai national, Piyaporn Eiwarun, aged 30 at trial, came to Australia in November 2007 as a student of English.  In early 2007 she had become acquainted with a man, Francis Okafor, through the internet.  That relationship changed after Ms Eiwarun came to live in Sydney to one where Okafor declared his love for her and they became engaged.  Okafor told Ms Eiwarun that he was a Nigerian doctor working in India.  He arranged an air ticket for her to fly to India and proposed that she should thereafter meet his family in Nigeria.  When Ms Eiwarun arrived in Bangkok she decided not to go to India but Okafor sent her another ticket so that her mother could accompany her.  In February 2008 she and her mother travelled to India and spent a month in Delhi with Okafor.  The mother then returned to Bangkok leaving her daughter engaged to Okafor.

[7] Ms Eiwarun wanted to return to Sydney where her personal belongings remained and to finish her course.  Okafor said that he had a friend or relation in Brisbane who wanted to open an Indian clothes shop.  He wanted her to take some samples to show him with a view to Okafor going into business with him.  Ms Eiwarun was not enthusiastic and suggested that the samples be sent by courier to Brisbane but Okafor responded that that would not be polite as the receiver would have to pay the charges.

[8] Okafor provided a bag to contain the samples.  Ms Eiwarun told him that they would easily fit into her own bag but he insisted on separate luggage which Ms Eiwarun helped to pack on the day of her flight.  Okafor purchased her ticket to Brisbane via Bangkok and gave her $1,000 for her expenses and airfare from Brisbane to Sydney.  The arrangement was that she would be given the details of the handover on arrival in Brisbane.

[9] At 11.00 pm on 9 March 2008 Ms Eiwarun arrived in Brisbane.  She declared some items.  All her bags were x-rayed.  Heroin was identified in a false compartment in the bag containing the Indian clothing samples.  On analysis the amount was 852.6 grams of pure heroin contained within 1,395.5 grams of powder.  Ms Eiwarun agreed to co-operate with the Australian Federal Police.

[10] Okafor had instructed Ms Eiwarun to go to a hotel near the airport and await his friend who would collect the bag.  She had a mobile on which Okafor could contact her and a telephone number to contact him.  Some 30 telephone calls between them were recorded by police.  Ms Eiwarun telephoned Okafor who asked for the name and address of the hotel and said the friend would arrive.  A number of plans were made over the next few days to get the bag collected.  After many telephone conversations Okafor told Ms Eiwarun that the friend had had to attend a conference and was not in Brisbane but would have to travel by train.  He proposed that Ms Eiwarun should travel by train and meet the friend half way to Sydney.  Police did not want her to do that so she told Okafor that she was sick and could not travel. 

[11] Ms Eiwarun was taken to the Brisbane City Watchhouse where she was charged with the offence of importing a border controlled drug and remanded in custody.  Police told her that her mobile phone had continued to ring whilst it was out of her possession.  She agreed to continue to assist police with their enquiries.  On 11 March Okafor told Ms Eiwarun to go downstairs where she would see an African man in the hotel reception area.  She was told to take the telephone and the bag but police did not permit her to do so.  Police gave evidence that a man – well dressed and of Nigerian appearance (not the appellant) – had waited and left at about 9.30 pm.

[12] Okafor again contacted Ms Eiwarun but she told him that she was tired of waiting, had things to do in Sydney and would leave the bag at the hotel reception.  He urged her to wait as his friend was on his way.  On 12 March she received a telephone call from a man who said that he was getting on a plane in Sydney and, later, that he had arrived in Brisbane and was at the airport.  She said he was difficult to understand.  At about 3.30 pm Okafor telephoned Ms Eiwarun to say that his friend was just arriving and to go to the front of the hotel[2] where she would see:

“… a man who is an African and he – his – he got curly hair and he – he’s wearing t-shirt and shorts.”[3]

[13] Ms Eiwarun walked to the front of the hotel carrying the bag given to her by police and saw a man who fitted the description cross the road coming towards her.  She was speaking to Okafor on the telephone.  He said he wished to speak to the man.  She handed the phone to the appellant who spoke in a language that Ms Eiwarun did not understand, that is, neither English nor Thai.  Ms Eiwarun seemed to agree in cross-examination that the language spoken by Okafor was Igbo[4] and the jury became aware that Igbo was the language spoken by the appellant.[5]  After a short conversation the appellant returned the telephone to Ms Eiwarun.  Okafor instructed her that the man was his friend who had come to pick up the bag.  Ms Eiwarun handed the bag to the appellant and received $300 which Okafor had said was because she had had to stay at the hotel longer than expected.  Ms Eiwarun returned to the hotel immediately.  She saw the appellant go further down and cross the road carrying the bag.  He hailed a taxi and police intervened and arrested him.

[14] When apprehended the appellant was in possession of three mobile phones from which police were able to obtain details of outgoing calls.  One had been used to make two calls to the mobile number of the telephone in Ms Eiwarun’s possession on 12 March 2008 and which matched the calls she had received from a man saying that he was in Sydney and later had arrived in Brisbane. The telephones were in the name of “Eddy Nwabudike” date of birth 15 September 1970 with an address in Redfern Street, Redfern, New South Wales; “Mr Eddy Mike” with a date of birth 16 April 1979 at a different number in Redfern Street, Redfern; and in the name “Mr Uche Nwadueze” with a date of birth 15 April 1969 with an address in Bankstown, New South Wales.  There was no evidence of any outgoing calls between any of those telephones and the number in India used by Okafor.[6]

[15] The appellant also had in his possession two driver’s licences, one for the Federal Republic of Nigeria and the other for New South Wales.  The latter licence showed the appellant’s date of birth as similar to one of the mobile phones.  The address on the licence was not the same as any of the addresses for the telephones.  The appellant also had in his possession a Virgin Blue boarding pass for a flight from Sydney to Brisbane on 12 March 2008 boarding at 13.30 and arriving in Brisbane at 14.25.  He had in his possession a piece of paper on which was written the name and address of the hotel in Spring Hill where he met Ms Eiwarun and a telephone number which was the number used by Ms Eiwarun.

[16] The appellant admitted that at 3.30 pm on 12 March 2008 at Spring Hill Ms Eiwarun handed the substitute suitcase to the appellant.[7]  Checks made by police revealed that the appellant had been in Australia since 2005 and had no criminal history in Australia.  He had no significant cash in his possession.  He had a Commonwealth Bank credit card in his own name in his possession when arrested and other items which it is unnecessary to detail further. 

[17] After he had been arrested, the appellant spoke to a lawyer and declined to participate in a recorded interview. 

The fresh evidence

[18] After the jury returned their verdict defence counsel submitted that because the interpreter had mentioned that the appellant appeared to the interpreter to be “unintelligent” and was noted to have “a flat affect” an assessment by a psychologist was desirable prior to sentence.  Dr Shelley Keane provided a report dated 8 December 2011 which the appellant submits indicates the evidence she would give at a retrial about the appellant’s low intellectual functioning.  It is convenient to consider the contents of that report before considering the unreasonableness of the verdict ground of appeal. 

[19] The appellant told Dr Keane that at the time of the offence he was smoking marijuana most days and drinking “too much”; that he was not working and was frustrated because this was not the life he wished to live.  He had come to Australia from Nigeria to better himself but due to visa requirements he was not able to work at the time of the offence.  He told Dr Keane, inconsistently, that he had worked in the building industry as a labourer.  He had had 12 years schooling in Nigeria but reported difficulties with reading and mathematics. 

[20] On examination the appellant demonstrated no evidence of a thought disorder.  Dr Keane conducted a neuropsychological assessment and tested the appellant for level of effort.  Dr Keane concluded that the appellant had poverty of speech reflecting poor language abilities rather than any psychological factors.  The interpreter reported to Dr Keane that in his native language the appellant was difficult to understand, used unsophisticated speech and had difficulty expressing himself.  All the tests were administered with the assistance of the interpreter and only the non-verbal sections of the WAIS-IV were administered.  Dr Keane found that on formal assessment the appellant’s non-verbal abilities fell in the Borderline range.  His processing speed fell in the Extremely Low range.  On the Reynolds Intellectual Assessment Scales (RIAS) his functioning fell in the “Significantly Below Average/Extremely Low range”.  Dr Keane commented that this result was consistent with intellectual functioning in the mental retardation range.  She opined:

“On formal assessment, [the appellant’s] intellectual ability fell in the Extremely Low Range.  This indicates that [the appellant] may experience difficulty in keeping up with his peers in a wide variety of situations that require age appropriate thinking and reasoning abilities. … However, [the appellant] is fit for trial, that is, I think that he is able to instruct counsel appropriately.”

With respect to his personality she commented:

“Individuals whose intellectual functioning falls in the extremely low range are often vulnerable to manipulation by more intelligent and stronger personalities.  They are often concrete in their thinking style. 

At the time of the offence, he reported that he was unhappy with his life, that on coming to Australia he hoped to find work and have a better life.”

[21] Ms Carolyn Hunter, a solicitor employed by Legal Aid Queensland who acted for the appellant for his trial, observed that although the appellant had requested an Igbo interpreter for his trial he seemed to understand English and responded to questions appropriately.  A video conference was arranged with him for 6 April 2011 as he was on bail in Sydney pending his trial.  Ms Hunter deposed that she had no concerns about the appellant’s intellectual functioning nor did counsel raise concerns in the course of the conference.  The appellant gave appropriate instructions.  After an interpreter had been obtained the appellant attended a conference with counsel and Ms Hunter on the first day of his trial and confirmed his instructions.  It was not until counsel was attempting to explain the verdict and likely consequences to the applicant that the interpreter said that he thought there was something wrong with the applicant and that mentally he was slow.

Ground 2: unreasonable verdict

[22] It is convenient to consider ground 2 before ground 1 which concerns the fresh evidence.  In MFA v The Queen[8] Gleeson CJ, Hayne and Callinan JJ said[9] that:

“Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen …

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’”

[23] In M v The Queen[10] the joint judgment provided guidance to appellate tribunals applying this test.  Their Honours said:[11]

“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 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”

[24] In SKA v The Queen[12] French CJ, Gummow and Kiefel JJ stressed[13] that “by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’”.  Elsewhere in their reasons[14] their Honours said that the appellate court “was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged” and that the appellate court’s task “was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported”.  Heydon J and Crennan J, while dissenting as to the result, affirmed that the test propounded in M should be applied. 

[25] No criticism is made of the direction of the trial judge to the jury.  His Honour told them that:

“To commit the offence of attempting to possess a marketable quantity of border controlled drugs, the defendant must have intended to possess the substance, namely the drugs.  A person may be found guilty of the offence of attempt even if committing that offence – the offence that’s attempted is impossible.”[15]

This direction was necessary because police had removed the heroin from the bag.

[26] His Honour continued:

“An intention to possess a substance is a state of mind that must be proved beyond reasonable doubt, and it can be proved by inference. You are entitled to infer such intent if, after considering all of the evidence, you are satisfied beyond reasonable doubt that it is the only reasonable inference open on the evidence. If there is any other inference reasonably open, then you cannot draw the inference of intent.”[16]

His Honour said:

“An intention might be inferred if you are satisfied beyond reasonable doubt that the person believed that the substance contained in the item that was to come into his possession was or was likely to be drugs. If that belief is proved beyond reasonable doubt, the inference or intention to possess the drugs is established.”[17]

[27] His Honour said on several occasions to the jury:

“The prosecution may establish intention by inference based on belief, a belief falling short of actual knowledge that the suitcase being taken into his possession contained the substance could sustain an inference of intention in the absence of that admission, proof of a belief that the suitcase contained the substance will often be the way the prosecution proves that a defendant meant to possess the substance.”[18]

[28] The prosecution case depended upon the jury being satisfied beyond reasonable doubt, after having regard to all the circumstantial facts, that there was no reasonable inference to be drawn from those facts other than that the appellant believed that the bag which he was collecting from Ms Eiwarun contained drugs.  The facts said to support that inference were:

(a) The appellant travelling from Sydney to Brisbane on a one way ticket without luggage. 

(b) One of the mobile phones in the appellant’s possession had been used to ring Ms Eiwarun’s mobile phone twice on 12 March indicating that a man was leaving Sydney and had arrived in Brisbane.

(c) The possession by the appellant of the handwritten note on which was written the name and address of the hotel, and Ms Eiwarun’s mobile telephone number.

(d) Okafor was able to give Ms Eiwarun a broad description of the appellant’s hair and clothing (although conceded not to be quite accurate), and that he was about to arrive, suggesting contact between them. 

(e) The appellant spoke to Okafor on the telephone prior to taking delivery of the suitcase from Ms Eiwarun.

(f) Okafor told Ms Eiwarun that the appellant would give her money, which he did.

(g) There was no enquiry of Ms Eiwarun by the appellant or discussion about the contents of the suitcase or why she was giving it to him.

(h) It was an expensive and complicated way to take delivery of some clothing samples.

Discussion

[29] The appellant contended that there was no evidence that the appellant had travelled to Brisbane to collect the suitcase but that seems an unsustainable argument.  While there was no direct evidence as to why the appellant had travelled to Brisbane, his contact with Ms Eiwarun by telephone, his conversation with Okafor and handing over money in exchange for the suitcase does not suggest of any other reasonable explanation.

[30] Mr Rice, for the respondent, referred to passages in He Kaw Teh v The Queen.[19]  In that case the High Court examined s 233B(1) of the Customs Act 1901 (Cth) to ascertain if the section required proof of intention by an accused.  That section made it an offence to import or attempt to import into Australia any prohibited imports or, without reasonable excuse, have in possession such imports.  In the course of considering the contention that it would be very difficult to prove intention, Gibbs CJ observed[20]:

“… I am by no means persuaded that it is virtually impossible, or even particularly difficult, to prove the state of mind of an importer of narcotic goods in the absence of admissions.  If a person enters Australia carrying a suitcase which has narcotics concealed in it, and offers no convincing explanation of the presence of the narcotics, I should be surprised if a jury would draw any inference other than that he knew that the narcotics were in the case. …”

and:

“… I cannot think that in the usual run of cases questions of that kind [presence of secreted drugs brought into the country] would present much difficulty to a jury.”[21]

[31] In the same case Dawson J observed:[22]

“Moreover, I do not think that, upon this view, the difficulty of proof will, in practice, be as considerable as might be imagined.  Clearly, the fact that an accused has been found bringing narcotic goods into the country may ordinarily found an inference that the goods are being imported intentionally, notwithstanding protestations by the accused that he was unaware of their presence or of their nature or quality.  At the very least, proof that the goods were brought into the country by the accused will ordinarily mean that there is a case to answer.”

[32] Mr Shepherd, for the appellant, submitted that an inference of knowledge might more readily be made where prohibited drugs are brought into Australia than where the possession occurs domestically.  However, those passages from He Kaw Teh referred to by Mr Rice recognise that juries bring to their task their life experiences and common sense.

[33] The appellant also points to the jury note after deliberating for two hours that they were unable “to reach consensus”[23] as evidence that the inference of guilty knowledge could not readily be made.  The trial judge, with the agreement of counsel, gave the jury a Black direction and allowed them (at their request) to go home to return the following day.  The jury then asked for Ms Eiwarun’s evidence about events at the second hotel when the appellant collected the suitcase to be given to them.  They asked to be reminded about the law from the judge’s summing up and asked for further direction on what was meant by “rational”. 

[34] With respect to the latter request the trial judge reminded the jury that:

“…you are only to draw reasonable inferences and the inferences must be based on facts you find proved by the evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions and not to engage in intuition or in guessing.”[24]

About two hours later the jury returned their verdict.  There was nothing in the note from the jury to suggest that the verdict was in any way unreasonable.  They were “stuck” and needed a break.  The following day after guidance and being reminded of certain evidence they quite quickly reached a decision.

[35] It may readily be inferred that the appellant was not a participant in Okafor’s original plan to have Ms Eiwarun hand over the suitcase to the man in the hotel lobby who left.  That plan did not come to fruition likely because Ms Eiwarun did not take with her into the hotel lobby her mobile phone to contact Okafor nor the suitcase.   However, on 12 March a mobile phone in the appellant’s possession was used by a man who was difficult to understand to inform Ms Eiwarun that he was leaving Sydney.  The appellant flew shortly afterwards from Sydney to Brisbane on a one way ticket without luggage.  A further call was made on the same telephone to Ms Eiwarun that the man had arrived.  Okafor informed Ms Eiwarun that a man who generally fitted the appellant’s description was on his way and he arrived shortly after.  Okafor asked to speak to the man and, after doing so, in a mutual language, confirmed to Ms Eiwarun that the suitcase should be handed over to him and that the man would give her money for her extra expenses which he did.

[36] The jury could reasonably conclude from those facts that the effort and expense of flying to Brisbane to collect a suitcase was not referrable, rationally, to Indian clothing.  Mr Shepherd submitted that so far as the appellant was concerned the suitcase may have contained money or other unlawful objects.  There was no evidence at all to support that possibility. 

[37] The jury were entitled to put these pieces of evidence together and reach a conclusion of guilt.  No rational explanation arose other than that the appellant believed that the suitcase contained drugs.

[38] This ground is not made out. 

Ground 1: fresh evidence

[39] The respondent concedes that Dr Keane’s report satisfies the test for fresh evidence.  It was not in existence prior to verdict and there was nothing evident to the appellant’s lawyers that might reasonably have prompted them to have obtained an assessment about his intellectual functioning.  The respondent concedes that the evidence is credible.  Nonetheless, the respondent does not accept that, in conjunction with the evidence given at trial, it gives rise to a significant possibility that the jury would have acquitted the appellant. 

[40] In Gallagher v The Queen[25] Gibbs CJ quoted the following passage in the judgment of Rich and Dixon JJ in Craig v The King:[26]

“It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy.  The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected.  Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced.  But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.”

Later his Honour said:

“It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty.  On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so.”[27]

[41] His Honour approved generally the statement of Mason and Deane JJ in Gallagher which has come to express the test of the quality of the fresh evidence if a new trial is to be granted but stressed that the fundamental principle is that the appeal must be allowed if a miscarriage of justice is shown to have occurred – the formula offered by their Honours was a practical guide to the application of that principle.  Mason and Deane JJ after referring to the remarks of Rich and Dixon JJ in Craig set out above said:

“The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.”[28]

Discussion

[42] Mr Shepherd submitted that the result of the appellant’s psychological testing demonstrated that he was a person susceptible to manipulation by others.  Ms Eiwarun’s evidence showed that Okafor was a man who engaged in manipulative conduct.  He submitted that the appellant’s poor intellectual functioning went directly to his capacity to reason to a conclusion that he knew or believed there was something in the suitcase which was likely to be a border controlled drug. 

[43] Mr Rice submitted that there was no evidence to suggest that the appellant was manipulated or that he was required to reason to anything.  Even if he were a person who was taken advantage of, as it might be supposed he was, that would not operate against a finding about the appellant’s belief.  There was nothing in the report to suggest that the appellant could not form an intention to possess the drugs or would struggle to do so.  There had been no evidence before the jury that the appellant knew about illegal drugs.  Were Dr Keane to give evidence at any re-trial then the jury would very likely learn that he was a person who regularly obtained illegal drugs whenever he had sufficient money to do so.  This would squarely place him within the “culture” of illicit drug dealing.  Furthermore, he had expressed his frustration to Dr Keane at his lack of financial progress and might be seen in those circumstances as a person who would carry out a drug courier’s task.

[44] The appellant has low intellectual functioning but the testing did not demonstrate any thought disorder.  The appellant has worked in the past in Australia.  He was able to come to Brisbane, to take directions in English, make a note of them, and arrive at a hotel in a city in which he was a non-resident.  A jury would be right to infer that it would be highly unlikely that Okafor would have entrusted the collection of almost a kilogram of pure heroin to a person who might, due to his intellectual deficits, be unable to carry the task to fruition, presumably, to deliver it to its ultimate destination or person.[29] 

[45] In my view had the jury known that the appellant had been assessed and found to be in the borderline intellectual retardation range with a personality prone to manipulation, there is no significant possibility that the jury acting reasonably, adding that evidence to the evidence at the trial, would have acquitted him of the charge.  There has been no miscarriage of justice.  It follows that that ground has not been made out.

[46] I would dismiss the appeal.

[47] MARTIN J:  I agree with the order proposed by White JA and with her Honour's reasons.