R v Maddison[2013] QCA 132

SUPREME COURT OF QUEENSLAND

[1] MUIR JA: Introduction The appellant was convicted on 28 November 2012 after a trial of one count of indecent treatment of a child under 16, under care (count 2).  The jury was unable to reach a verdict on a count of rape (count 1).  A nolle prosequi was entered during the trial on another count of indecent treatment (count 3) and the appellant was acquitted of yet another such count of indecent treatment (count 4).  The appellant appeals against his conviction on grounds that:

1. the guilty verdict is inconsistent with the verdict on count 4;

2. the guilty verdict is unsafe and unsatisfactory;

3. the trial judge erred in admitting the evidence of a witness, C, on the basis that it demonstrated a sexual interest by the appellant in young females; and

4. the trial judge erred in directing the jury as to the use they might make of uncharged alleged discreditable conduct on behalf of the appellant.

Evidence before the jury

[2] The complainant, who was 12 years of age at the time of the alleged offences, gave evidence to the following effect.  She slept over at the appellant’s house on the evening of Saturday 3 December 2011.  The appellant was referred to by G, a friend of the complainant of a similar age, as her father.  He was not G’s father but, because of his relationship with G’s mother, assumed a parental role in relation to G.  Also in the house were C, a girl of about 13 years of age, the appellant’s five year old daughter, H, and a young boy, J, aged eight. 

[3] The appellant told the complainant to hurry and get into the shower.  The complainant told him to go out.  The appellant told her again to hurry up and remained in the room.  The complainant undressed and the appellant left but kept coming back and looking at her.  The complainant accepted in cross-examination that the appellant had tried to get H out of the shower and had asked G to try and get her out.

[4] During the evening, the complainant played a game of “wedgies” with the appellant and G.  After “playing around with [G] like giving her [wedgies]” the appellant “pulled [the complainant’s] pants up and then … dragged [her] onto the bed and … gave [her] a [wedgie] … he was lying down and … he was going to pull [her] pants down and [she] said no and [she] tried to get off him but he wouldn’t …”.  The complainant described how she was held by the appellant.  She said:

“…  I then got away after that cause I called [G] out I kept calling [G] out for the whole night so and when he tried to do it well when he played with me um after he did and I told him to stop I went to the bathroom with [G] and told her about it and she told me to stay with her for the night …”

[5] The complainant described conduct engaged in by the appellant while G was present.  She then said:

“I had long pants and he pulled them down in the bed but the well the loungeroom bed thing and he tried to play with me well he did play with me and I told him to stop after that because he kept putting his finger up my rude part …”

[6] Under further questioning, the complainant expanded on her description of having her pants pulled down and her vagina penetrated digitally.

[7] The complainant spoke about being massaged by the appellant when they were under blankets and G, H, C and J were in the room.  Asked what part of her body was massaged by the appellant, she said:

“…it was on my tummy first and I think he was trying to roll me over to do my back when I think he didn’t want to do that and then he would stop and then he would go up more until he got sort of over the private part and that [was] when he wouldn’t stop.”

[8] Asked what she called “that other private part”, she said “my breasts”.  Count 1 concerned the alleged digital penetration of the complainant’s vulva or vagina while they were on the sofa bed under the blanket and was based on this evidence.

[9] Later in the police interview, the complainant said that she thought “it was numerous times” that the appellant put his finger in her “rude part”.

[10] When she was on the sofa with the appellant watching a movie, the appellant attempted to place the complainant’s hand on his penis.  She felt his penis on her buttocks and resisted the appellant’s attempt to make her touch it.  Count 3 related to this evidence.

[11] Count 4 was based on the complainant’s evidence that when she and the appellant went into the computer room, after the initial touching of her breasts in the lounge room (Count 2), the appellant “did it again” and she protested.

[12] Under cross-examination, the complainant gave the following evidence.  She spoke to G about the appellant’s conduct on the evening of the incident.  Then she told another classmate about it at school.  The complainant was called up to the principal’s office and asked by the principal about a rumour.  Questioned about what she understood by the word “rape”, she replied, “That it’s sexual intercourse when someone’s touched you when you don’t like it”.  The complainant accepted that she told the principal that G was it making up.  She accepted also that when asked by her sister about being inappropriately touched by the appellant, she initially denied it.  She said she initially denied the allegations as to the appellant’s conduct because she did not want a particular teacher to find out.  She also said that she did not tell her sister because she did not think she was going to believe it.

[13] When interviewed by police officers on 5 December 2011, G gave the following account.

[14] The weekend before the interview, she and the complainant started “mucking around playing around” at the appellant’s house.  The appellant gave them wedgies.  She, the complainant, C, J, H and the appellant were sitting around watching movies.  H, J and C slept for a time.  In the course of the evening, the complainant and G went across the road to the house of a friend of the appellant.  After their return, they watched another movie, played a game where they threw a ball at each other and were told by the appellant to go to bed.  She “went onto the computers” as did the complainant.  The complainant asked the appellant for help to fix a computer.  The appellant “went down there … and [G didn’t] know what happened in between there”.

[15] Asked if they had a wash, G said they had a shower and that the appellant “walked into the bathroom … cause I was in there with [H] and … he come in he didn’t … like get naked and come in he … stood on the outside washing [H’s] hair and I told him to get out and he didn’t listen”.  She and H were in the shower at the time.  After washing H’s hair, the appellant left the bathroom.

[16] The complainant asked her to stay with her in the bathroom to make sure the appellant did not come in.  The appellant, however, walked back into the bathroom but the complainant “didn’t tell him to get her (sic) out or anything”.  G spoke of subsequently being in the lounge room watching a movie with J, C, H, the appellant and the complainant.  She was on one side of the complainant on a sofa bed and the appellant was on another.  The complainant and the appellant were under blankets.  She was not.  She did not feel any movement on the sofa bed.

[17] The appellant massaged C’s, the complainant’s and her heads.  At around this time, the complainant “started cuddling into” her and the appellant moved from the bed lay on the floor with G and the complainant.  At around this time she could hear the complainant’s “shirt go up and down” and she thought the appellant was rubbing the complainant’s back.  This continued for a substantial period of time.  There was an occasion on which the appellant was “over near the piano” and the complainant was in front of him.  The complainant “told him to stop it and … that’s what felt weird”.  The appellant asked “why” and the complainant replied “because I don’t like it”.  The appellant said “Okay”.

[18] Asked in cross-examination if the complainant said anything about the appellant touching her that night, she replied “She did ask me in the toilet room to stay with her just in case someone was going to come in”.  It was clarified that this was when the complainant was having her shower.

[19] This exchange occurred in the course of her cross-examination:

“All right. And you never saw him on that sofa touching [the complainant] did you?-- No, I wasn’t paying attention.

Well, you were sitting bedside her? Or lying beside her. Was it lying or sitting?-- We – I was lying and then [the complainant] was in the middle and [the appellant] was at the end.

All right. And he was right on the edge of the sofa wasn’t he?-- Yep.

…

And you say you weren’t paying attention, but you saw nothing between him and [the complainant] did you?-- No, I didn’t.

All right?-- I was watching the movie called Mean Girls.

And [the complainant] never got up and moved off that bed at any point? Off that sofa?-- She got off and moved to go to the toilet and she told me to go with her.

Yes?-- She said that he was touching her, but I didn’t believe it at the time.”

[20] C, who was 13 at the time of the interview, gave the following account to police on 5 December 2011.  She was at the appellant’s house with his daughter H and other children.  When she was having a shower in the appellant’s ensuite, the appellant, wearing a shirt and underpants, came in and asked if he could shower with her.  She told him to get out.  After she had showered and started reading a book, the complainant arrived.  Before then, when she and her sister, G, were sitting watching television, the appellant came to give them a kiss.  He kissed G twice on the cheek or lips but she “didn’t really get a good view of it”.  C was kissed on the forehead and after the appellant “just stood there”, she “pushed him away”.  She later observed the complainant, the appellant and G on the sofa or couch; there was a blanket over the three of them.  One of the appellant’s hands was under the blanket, the other was outside it.

[21] Ms King, the partner of the complainant’s elder sister Ms Maddison, said that the complainant had been living with her and Ms Maddison since she was about six years of age and that she and Ms Maddison were the complainant’s legal guardians.  Her evidence was to the following effect.  The morning after the complainant’s sleepover, she saw her running home.  Ten to 15 minutes later, the appellant came by in his car, stopped, enquired if the complainant was there and said that she did not say goodbye.  Ms King, asked by the appellant why the complainant had left without saying goodbye, called out to the complainant to come and say goodbye.  The complainant initially refused but then came to a window and called out goodbye.

[22] Ms King was contacted by G’s mother by telephone.  As a result she telephoned the school principal and asked to speak with the complainant who told her that the appellant had touched her.  Consequently, she took the complainant to the police.  Ms King denied that at any stage the complainant had denied to her that she had been touched.

[23] The school principal, in cross-examination, said that she was told by the complainant that G was making up the rumour.  Asked to tell her about the rumour, the complainant said that she had been raped.  She did not enquire into the complainant’s understanding of the meaning of that word.

[24] The appellant did not give or call evidence.

Grounds 1 and 2 – the appellant’s argument

[25] The jury’s not guilty finding in respect of count 4 damaged the complainant’s credibility with respect to all counts on the indictment.  The only conclusion, which can reasonably be drawn, is that the jury were not satisfied beyond reasonable doubt of the truth of the complainant’s evidence concerning the count 4 incident.[1]

[26] The different verdicts represented an affront to logic and commonsense which strongly suggested a compromise verdict.[2]

[27] The verdict of guilty in respect of count 2 is unreasonable in the light of:

• the absence of cogent supporting evidence;
• the failure to make an earlier complaint;
• the initial denial by the complainant; and
• the circumstances in which the complaint was made.

[28] In the circumstances, it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  The Court, making “an independent assessment of the evidence, both as to its sufficiency and its quality”[3] would conclude, after making full allowance for the advantages enjoyed by the jury, that there was a significant possibility that an innocent person had been convicted and that the verdict should be set aside as unreasonable and not supported by the evidence.[4]

Consideration of grounds 1 and 2

[29] The principles applicable to a claim that a verdict should be set aside as inconsistent with the verdict on another count on an indictment are not in doubt.

[30] In the joint judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen, their Honours said:[5]

“… the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense.  Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.  In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.  Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.

…

Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.  More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.  It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.  It is impossible to state hard and fast rules.  ‘It all depends upon the facts of the case.’” (citations omitted)

[31] The guilty verdict in respect of count 2 and the acquittal on count 4 are readily explicable.  The complainant gave a detailed account of the count 2 incident explaining where the other children were at relevant times, what movie was on television, what the appellant did and tried to do and how the touching developed.  By contrast, the evidence in relation to the touching in the computer room was brief and lacking in clarity.  The complainant also spoke of the appellant’s “trying” to do it again in the computer room.

[32] The count 2 incident appears to have come after the horsing about described as the giving of “wedgies”.  The jury were entitled to conclude that this conduct had, at least in so far as the appellant was concerned, sexual overtones.  It was not in dispute that subsequently the complainant, G and the appellant lay on a sofa bed watching television and that the appellant and the complainant were under a blanket.  G gave evidence of the appellant administering a very lengthy back massage to the complainant.  Although, this conduct appears also to have been at a time later than the touching of the complainant on the sofa bed, counsel for the respondent submitted, and I accept, that it was capable of giving broad support to the complainant’s evidence.  So too was G’s evidence of hearing the complainant say “stop it” while near the piano.

[33] This is not a case in which the jury’s failure to be satisfied beyond reasonable doubt of the appellant’s guilt on one count so diminishes the complainant’s overall credibility that the appellant should have been acquitted on the other counts.

[34] The matters discussed above support the conclusion that it was open to the jury to be satisfied of the guilt of the appellant.  The accounts given by the complainant were generally internally consistent and unshaken in cross-examination.  Even on the appellant’s version of events, as reflected in cross-examination, it was open to the jury to conclude that the appellant had displayed a distinct sexual interest in young females including the complainant.  The implicit excuse that he had gone into the shower when G was there with H in order to wash H’s hair is far from compelling.  It does not explain why G was permitted to be in the shower with the child when the appellant was also going to be present.  Nor can it explain the request made of C by the appellant that he shower with her or his presence from time to time in the room when the complainant was showering.

[35] There is nothing inherently improbable about the complainant’s and G’s account of the “wedgies” behaviour.  It was put to the complainant that “at some point everybody played a game of wedgies”.  It was not suggested that some of the game was not played on the appellant’s bed as the complainant asserted.

[36] The way in which the complaint emerged is a cause for concern but the complainant’s explanations for this were not fanciful in nature.  Ms King’s description of the complainant’s flight from the appellant’s house on the morning after the subject incidents and her conduct on arrival home suggest that the complainant was troubled about the appellant’s conduct.

[37] In MFA v The Queen,[6] McHugh, Gummow and Kirby JJ remarked, in effect, that it was “not uncommon in most trials” for “some aspects of the evidence [to be] less than wholly satisfactory”.  Their Honours said in that regard:

“Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence.  In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention.”

[38] Their Honours observed earlier in their reasons that determination by an appellate court as to the reasonableness of a jury’s verdict:[7]

“…involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.”

[39] In deciding what weight was to be given to the inconsistencies relied on by the defence, the jury were entitled to have regard to the fact that the complainant’s evidence in respect of the great majority of the complaints was corroborated by the evidence of at least one other person.

[40] For the above reasons these grounds have not been made out.

Grounds 3 and 4 – the appellant’s arguments

[41] The trial judge admitted, over defence counsel’s objection, the evidence of C that the appellant asked her if he could shower with her.  That was an error of law as was the trial judge’s failure to properly direct the jury as to the use they could make of the discreditable conduct alleged against the appellant.  The other parts of the evidence described in the second paragraph of the next paragraph of these reasons were admitted without objection.  All of the evidence referred to in the emphasised passage will be referred to as the subject evidence.

[42] In his summing up, the trial judge instructed the jury as follows:

“[The appellant] is charged with rape – inserting his finger into the girl’s vulva or vagina, and indecent dealing – touching her breasts on a couple of occasions.  He’s not charged with kissing children or hugging children or massaging the back of a child or observing a child in the shower or asking a child whether he could shower with her.  So you consider only the three charges which are before the Court.

Now you have heard evidence about the [appellant] kissing some of the children and hugging them, massaging, allegedly massaging [the complainant’s] back, washing [H]’s hair while [G] was also in the shower and [G] turned away and going in to the shower while [C] was there – and she was 13 I think it was – and going in while he was wearing a shirt and a pair of underpants and asking if he could go into the shower with her.  Now you heard that evidence.  As I said the [appellant] is not charged with any of those things.

If you accept that those things did happen and if you accept them beyond reasonable doubt, then you can make use of them in a particular way that I’ll describe in a minute.  If you don’t accept that those things or any of those things or some of those things occurred, if you don’t accept beyond reasonable doubt that all of them or some of them occurred, then they’ve got no relevance at all to this case.

But if you accept beyond reasonable doubt that those things occurred, you can only use that evidence against [the appellant] if you are satisfied beyond reasonable doubt that those things – kissing, hugging, going into the shower – demonstrate that [the appellant] had a sexual interest in [the complainant] and that he had been willing to give effect to his sexual interest by doing the things that he’s alleged in the charge sheet of doing.

So if you accept or were persuaded beyond reasonable doubt that he had done these other things – kissing, hugging, massaging the girl’s back, going into the shower, asking can I come into the shower with you, and you accept that beyond reasonable doubt, then you may think it is more likely that the [appellant] did the things that he’s alleged to have done, the rape and the two indecent dealings.

But if you are not satisfied of that beyond reasonable doubt, then the evidence of the touching – I should say of the kissing and the other things cannot be used as proof of the three charges which have been laid against the [appellant].

Remember also that even if you are satisfied that some of those other things occurred, the kissings and the going into the shower and so on, it does not inevitably mean that you would find the [appellant] guilty of the three charges which have been brought against him – because you must come back to the whole of the evidence and on the whole of the evidence are you satisfied beyond reasonable doubt that he did these things – that he did penetrate the girl’s vulva or vagina with his finger and that he did touch the girl’s breasts.” (emphasis added)

[43] Later, after consideration of an opposed application by the prosecutor, the trial judge informed the jury as follows:

“Look, I mentioned yesterday and I’ve just got a couple of things to go.  I mentioned yesterday that if there were two inferences that were reasonably available that you could draw from facts that you found to be proven, then if they were each of equal weight you should draw the one that favours the [appellant].  That doesn’t actually express the test in the way that I should have expressed the test.

What it is is that, if there are reasonable inferences that you can draw from the facts then say there are two or more reasonable inferences that you could draw from facts that you find to be proven, then you must draw the one that favours the [appellant].  It isn’t a question of the inferences being of equal weight, it’s a question of whether the inferences are reasonably open for you to draw them.

Now, [the prosecutor] yesterday in her closing address, made reference to certain activity – kissing the children, hugging them, wedgie games and so on and so forth.  And [the prosecutor] submitted that that indicated that the [appellant] had an unnatural interest, a sexual interest in children, not only in the complainant girl.  And that is the thrust of part of the Prosecution’s submissions – that the unnatural interest, the sexual interest is in children.  And, of course, there were a number of children in the house.  And that the [appellant] had been prepared to give effect to his sexual interest in children by doing what he did – or what he allegedly did, to the complainant girl.

… the essential points that were made by [the prosecutor] were the [appellant] had a sexual interest in children and that was demonstrated by the fact that he told [Ms King] when he went to her house around the corner from where he lived – and he went there with some of the children – that his wife was at home baking a cake, inferentially that the girl, the complainant, would be safe if she came to the house.  And then – that night at the house – he kissed some of the children and hugged some of them, spent time massaging [the complainant’s] back, went into the shower and washed the girl [H’s] hair while the other girl was naked in the shower and then he – this is according to the Prosecution’s case – he went into the shower when one of the other girls was there, [C], and went in wearing a shirt and a pair of underpants and asked if he could join in the shower and he was involved in the wedgie game and attempted to pull down [the complainant’s] pants at one stage, and that after lights out that night, [G’s] evidence was that she heard [the complainant] say to [the appellant], ‘Stop it. I don’t like it.’

All those alleged events, [the prosecutor] submitted, would satisfy you that the [appellant] had an unnatural, a sexual, interest in children and he was prepared to give effect to that interest by doing what he did to [the complainant].” (emphasis added)

[44] The subject evidence was inadmissible.  It was very prejudicial to the appellant and lacked the particular probative value that is necessary for the admissibility of such propensity evidence.[8]  Moreover, the probative force of the subject evidence did not transcend its prejudicial effect.  In reliance on R v WO,[9] BRS v The Queen[10] it was submitted that the trial judge erred in failing to give the jury a warning against propensity reasoning.

Consideration of grounds 3 and 4

[45] The subject evidence was relevant and therefore admissible in the absence of some exclusionary evidentiary rule.  As Gleeson CJ observed in HML v The Queen:[11]

“Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence.  It may explain a statement or an event that would otherwise appear curious or unlikely.  It may cut down, or reinforce, the plausibility of something that a witness has said.  It may provide a context helpful, or even necessary, for an understanding of a narrative.”

[46] The subject evidence gained cogency from the fact that the relevant conduct of the appellant was engaged in at the same place at about the same time and, generally, as part of a course of conduct involving the offending conduct.

[47] If accepted, the subject evidence of C and, to a lesser extent, G’s evidence assists in disproving the existence of an innocent explanation of the appellant’s conduct in relation to the complainant in the bathroom.  The subject evidence shows not only that the appellant had a sexual interest in young females but a preparedness to give effect to such interest.  In that regard, the appellant not only sought to ogle C having a shower but attempted to shower with her.  The kissing and the “wedgie” games show a preparedness to engage in physical contact with sexual overtones.  When looked at in the context in which the subject conduct occurred, considered with the other prosecution evidence and on the assumption that the jury would accept it, there was no reasonable view of the subject evidence which was consistent with innocence.[12]  Consequently, the evidence satisfied the test for admissibility of propensity evidence in Pfennig v The Queen.[13]

[48] The trial judge directed the jury, in effect, that:

• if they accepted the subject evidence beyond reasonable doubt; and
• if they accepted beyond reasonable doubt that such evidence demonstrated that the appellant had a sexual interest in the complainant that the appellant had been willing to give effect to by doing the acts the subject of the charges;

the jury might think it more likely that the appellant committed the offence on the indictment.

[49] There was no direction warning against propensity reasoning but in the circumstances of his trial none was required.  The subject evidence was not admissible solely on account of its value as propensity evidence, as explained above.  The propensity evidence was of a particular kind.  It related to conduct in respect of other young girls at about the same time and in the same premises as the conduct giving rise to the charged offences.  One of the purposes of admitting the evidence was that, if accepted by the jury, they could reason from it that it was more likely that the charged offending conduct had occurred.  In those circumstances, no propensity direction was required.  In KRM v The Queen,[14] McHugh J said:

“In most cases, however, the need for a propensity warning arises from evidence concerned with subsidiary issues rather than the existence of a multiplicity of counts involving the same or similar offences or by reason of the admission of similar fact or propensity evidence in respect of some but not all counts. If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning. In some cases, giving the warning may excite the very prejudice that it purports to eliminate. And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment. Conversely, a propensity warning will be required if propensity evidence is admissible in respect of some but not all counts in the presentment and there is a risk of prejudice in respect of those other counts. Ordinarily, there should be a separate trial in respect of those counts. But in practice that does not always occur.” (emphasis added)

[50] The subject evidence was admitted partially, and perhaps principally, for its value as propensity evidence.

[51] The argument that the prejudicial effect of the subject evidence outweighed its probative value must be rejected.  As Gleeson CJ observed in HML v The Queen:[15]

“In this context, prejudice means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate. If it did, probative value would be part of prejudicial effect.”

[52] It is also relevant that in the summing up the trial judge placed great emphasis on the evidence of the complainant.  The jury were directed on two occasions that they had to believe the complainant beyond reasonable doubt before they could find the appellant guilty.  Later, the trial judge said, “So we come back to the central point, do you believe [the complainant’s] version of events?  Do you believe her evidence?”.

Conclusion

[53] None of the grounds of appeal has been made out and I would order that the appeal be dismissed.

[54] GOTTERSON JA: Iagree with the order proposed by Muir JA and with the reasons given by his Honour.

[55] PHILIPPIDES J:  I agree with the judgment of Muir JA and with the order proposed.