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Cases Cited: Alexander v Bakes [2023] ACTCA 49 De Silva v The Queen [2019] HCA 49; 268 CLR 57 King v Bishop [2024] ACTSC 114 Liberato v The Queen [1985] HCA 66; 159 CLR 507 R v Jovanovic (1997) 42 NSWLR 520 SBT v Colvin [2020] ACTSC 216 Wolter v Broomhall [2023] ACTSC 331 Yacoub v R [2021] NSWCCA 166

Parties: KM (Appellant) Elizabeth Cahill (Respondent) Representation: Counsel R Edney (Appellant) K McCann (Respondent) Solicitors Andrew Byrnes Law Group (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: SCA 51 of 2023 Decision Under Appeal: Court: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 16 August 2023 Court File Number: CAN 7589 of 2022 CAN 7590 of 2022 CAN 7591 of 2022 McCALLUM CJ: Introduction

1. The names of the parties in these proceedings have been anonymised to comply with the prohibitions in s 114Q of the Family Law Act 1975 (Cth) and s 149 of the Family Violence Act 2016 (ACT).

2. The appellant was found guilty in the Magistrates Court of three offences of contravening a family violence order, contrary to s 43(2) of the Family Violence Act 2016 (ACT). She was subsequently convicted and ordered to be of good behaviour for a period of 12 months on two charges and 16 months on the third charge. She has appealed against her convictions. There is no appeal against sentence.

3. Shortly before the hearing of the appeal, the appellant gave notice that none of the grounds of appeal specified in the notice of appeal would be pressed. The appellant instead specified the following new grounds: The learned magistrate erred by failing to give a Liberato direction when such a direction of law was required in the circumstances of this case. The learned magistrate failing to consider at all whether [the complainant] had a motive to lie when there was such evidence before her and the failure to direct on that issue meant that no motive to lie direction was given when it was required in the circumstances of the case.

4. The prosecution very fairly took no objection to the hearing proceeding on that basis. The appellant acknowledged that she required the leave of the Court to amend her notice of appeal: r 5111(2) of the Court Procedures Rules 2006 (ACT). The prosecution contended that the question of leave to amend should be determined together with and according to the merits of the proposed new grounds. The hearing proceeded on that basis.

Principles to be applied

5. The appeal invokes the Court’s jurisdiction under s 208 of the Magistrates Court Act 1930 (ACT). I considered the features of such an appeal in King v Bishop [2024] ACTSC 114 at [7]-[8], where I noted that the incidents of the appeal: indicate that it is an appeal by way of rehearing, requiring the appellate court to determine the correctness of the decision at first instance by undertaking a real review of the evidence and making its own assessment of the facts, while being mindful of the natural limitations of proceeding on the record.

6. I further noted that the process for determining the correctness of the decision at first instance is not at large, citing the decision of the Court of Appeal in Alexander v Bakes [2023] ACTCA 49 at [22] (Mossop, Baker and Abraham JJ), where it was held that the onus is on the appellant to demonstrate legal or factual error and it is for the appellant to specify the contended error.

Circumstances in which the charges were brought

7. The appellant and the complainant were previously married and had a child who was seven years of age on the dates of the alleged offending. In this judgment, I will refer to the appellant as the mother and the complainant as the father.

8. The mother and the father separated in 2016 and were later divorced. On 18 October 2018, a Family Violence Order was made against the mother. The father was the protected person under the order. The order prohibited the mother from being on the premises where the father lived; or being within 100 m of him or contacting him (with “the relevant exceptions for the charges before the magistrate”); or engaging in behaviour that constitutes family violence towards him; or causing someone else to contact him, “except as permitted by this order”. The exceptions were as follows: (a) except in accordance with Family Court orders or any parenting plan made under the Family Law Act 1975; (b) except through a legal practitioner; (c) except when facilitating contact handover of the daughter, when the distance was to be three metres; (d) except in writing or by SMS only for the purpose of facilitating contact handover of the daughter or to discuss the child’s safety and welfare.

9. Family Court orders were made by Gill J in January 2019. Those orders provided for the child to live with the father and to spend time with the mother during term time from 3pm on Saturday until 3pm on Sunday.

10. Order 14 provided that handovers were to occur in the following manner: a) Where a party nominates to the other parent in writing (including text message) a third party to undertake that handover, then the third party may deliver [the child] to the other’s parent’s home. b) In the absence of a nominated third party, handover shall occur within the Gungahlin Police Station. c) The parties are at liberty to change the handover arrangements by agreement in writing.

11. On 9 December 2020, the Family Violence Order was extended.

12. Prior to 22 May 2021 (a Saturday), the father had informed the mother that he would not be handing the child over that day. The reason he gave was that he was concerned about the child’s grandmother being present at the mother’s house during the visit. His evidence was that, at a recent procedural hearing in the Family Court, the grandmother “had behaved very aggressively and violently and had been ejected from the court and police were called”. His lawyer had informed the mother that he would not hand over the child if the grandmother was to remain in the house during the visit. The mother had agreed to that condition the weekend before and the grandmother had left during the child’s visit. However, in the leadup to the weekend of 22 May, the mother had stated that she refused to have her mother leave. The charges arose from the events that followed.

First alleged breach

13. On 22 May 2021 at 2:48pm, the mother sent a text message to the father asking, “Are you handing [the child] over in 15 minutes or not?” At 3:29pm, the mother sent a further text message asking to speak to the child, stating that she had concerns for the child’s safety due to the father breaching the court orders (by not handing over the child at 3pm). At 3:47pm, the father replied stating “She is fine but we’re not doing a phone call now”. At 3:51pm, the mother sent a further text message as follows: Why not. This is her time with me and you are already in contravention of court orders without reasonable excuse. The least you can do is put her on the phone so I can confirm she is safe. Given your current unlawful, abusive behaviour, contravening court orders without reasonable excuse that shows mental instability and rage, and your long history of mental health issues and violence, I do not trust you that [the child] is okay. Put her on the phone or I will have to go back to the police station and ask them to do a welfare check to make sure you haven’t harmed her.

14. The mother sent a further text message at 4:04pm which stated: “I don’t believe that you haven’t physically harmed her given you are currently withhold [sic] her against court orders and your history of withholding her against court orders when you have physically harmed her”. The message repeated the mother’s intention to report the matter to the police and “get them to do a welfare check to make sure you haven’t harmed her this time” and “so I can be sure you haven’t assaulted her again.” The father responded at 4:52pm that “every single time [the mother] complained to the police of being “worried” about [the child], they have concluded she is fine” and stated “if you are serious about being concerned, I can send you a photo so you can see she is ok.”

15. The mother sent another text message at 7:04pm which included the following: The difference being that you have a history of assaulting [the child] as well as accidentally injuring her while you throw things in rages and according to disclosures by [the child], including to [named person] and to [the child’s] teachers, you are still (at a minimum) doing the latter.

16. The mother continued to demand a telephone conversation with the child. The father replied at 7:27pm stating, “After the things you said the last time you called, I do not trust you to avoid inappropriate comments. Can you commit to not saying anything about expecting [the child] to visit tonight or that you want her to?” The appellant replied at 7:40pm, stating: FYI I recorded the phone call and the only person saying inappropriate comments during it is YOU. Including a nice little tidbit proving you told [the child] I was going to pick her up from the former marital home despite the truth being that you had made threats to have me arrested if anyone attempted to do that on my behalf. You lied to [the child] and did it in such a way to make her think I had simply forgotten her.

17. At 7:54pm, the mother sent a text message stating that she would contact the police to do a welfare check on the child to ensure “you have not assaulted her again.” At 7:57pm, the father replied stating, “I am blocking you now; you should get in contact with my lawyer on Monday and sort this out so that visits can resume.”

18. The prosecution alleged that the text messages breached the Family Violence Order on one or both of the following grounds: (a) the statements were offensive and therefore constituted a breach of the condition that prohibited engaging in behaviour that constitutes family violence; and (b) the statements breached the non-contact condition because they went beyond the scope of permitted exceptions in that they were not for the purpose of facilitating contact handover or to discuss the child’s safety and welfare.

19. The mother admitted sending the text messages but submitted that they were within the terms of the Family Violence Order. The mother gave evidence that she held concerns for the child’s safety and welfare because she believed the father had a history of mental illness and violence.

Second alleged breach

20. The second charge was based on an allegation that the mother arranged for her sister to attend the home of the father at 8:30pm on the evening of 22 May 2021. That was alleged to constitute a breach of the prohibition on causing someone else to contact and locate the father except as permitted by the Family Violence Order. It was not disputed that the mother drove her sister to the father’s street. However, the mother submitted that this fell within the exception for facilitating contact handover. Third alleged breach

21. The third charge was based on an allegation that the mother arranged for her father to attend the home of the father the following Saturday. It was not in dispute that she and her father drove to the father’s street at about 3pm that day for the purpose of collecting the child. As with the second alleged breach, that was alleged to constitute a breach of the prohibition on causing someone else to contact the father except as permitted by the Family Violence Order. For that charge, the prosecution also relied on the fact that the mother was waiting across the road from the father’s house at the time, which was a breach of the 100 m condition.

22. At 11:55am that day, the father had sent a text message to the mother’s spare phone, stating, “Just to let you know, please don’t come to my house uninvited. You can always message if you want something”. At 12:12pm, a person using that phone responded to the father asking, “Are you meeting us at the police station or where you live?” The magistrate could not determine whether that response was from the mother. The father replied, “The same conditions apply as previous weeks, otherwise [the mother] should contact my lawyer to negotiate further.” At 2:12pm, the father received the following further message, “aside from that, the same conditions do apply. [The child] is collected from where you live or the police station or an agreed location at 3pm today.” At 2:49pm, the father responded: I’m not sending [the child] for a visit this weekend for the same reasons as previously and [the mother] needs to sort out her lawyer or write to my lawyer directly so that we can reach an agreement and [the child] can visit again. Also, collecting [the child] from my house is only allowed with my agreement in writing. [The mother] should have made that clear since it’s in the orders.

23. It was shortly after that message was sent that the mother’s father (that is, the father’s ex-father-in-law) attended the father’s house. The father gave evidence that his ex-father-in-law demanded he provide the child for handover. He refused and explained his reasons. The father-in-law became agitated. The father told him he would have to leave, or he would call the police. The father then shut the door. The father-in-law banged on the door a couple of times and then stood on the footpath. From inside the house, the father saw the mother walk along the footpath and then cross the road. The father called the police shortly before 3:14pm and they arrived about five minutes later. Police spoke to both the mother and the father. The mother and her father left the street shortly afterwards. The father estimated that the mother and her father were present in the street for about 45 minutes. The Magistrate’s Decision

24. The magistrate published her decision orally within two weeks after the hearing. Her Honour found the three offences of breaching a Family Violence Order proved. The offences were contrary to s 43(2) of the Family Violence Act. Section 43 relevantly provides: Offence—contravention of family violence order (1) This section applies to a person against whom a family violence order is made if the person— (a) was present when the family violence order was made; or (b) has been personally served in accordance with this Act with a copy of the family violence order. (2) The person commits an offence if the person engages in conduct that contravenes the family violence order (including a condition of the order).

25. The physical element of the offences was not in dispute. The central issue was the fault element. The fault element for an offence contrary to s 43(2) is recklessness: s 22(2) of the Criminal Code 2002 (ACT).

26. As to the first charge, the magistrate undertook a careful and thorough analysis of the law as to what would be regarded as “offensive” for the purposes of the prohibition on engaging in family violence. Her Honour was ultimately not satisfied that the messages constituted family violence towards the father. However, her Honour was satisfied that the messages breached the non-contact condition of the order because they went beyond the scope of the exceptions allowed under the order. Her Honour found that, knowing the conditions of the Family Violence Order, the mother “crafted her text messages to appear as if they were discussions about the child’s safety and welfare when, in fact, they were just attempts by her to persuade the complainant to allow her to speak to her child.” Her Honour found the mother “was aware of the substantial risk that the text messages would contravene the Family Violence Order and, having regard to the circumstances known to her, it was unjustifiable to take that risk”. The magistrate accordingly held that the prosecution had proved the mother was reckless as to whether her conduct contravened the Family Violence Order.

27. As to the second charge, the magistrate recorded the evidence of the sister, whose statement had been tendered by consent, that she and the mother had discussed “someone going over to [the father’s] residence to check if he and [the child] were at home”. The sister said the mother dropped her off at the top of the father’s street and she walked down to the house to check if they were at home. She said the mother knew she was going there but “never specifically asked me to go there and speak to him”. The magistrate then summarised the mother’s evidence, the effect of which was that she had agreed to the father’s condition that her parents not be present during the visit and had nominated her sister to collect the child. She said she believed her lawyer had communicated that to the father. I note in that context that Gill J’s order concerning handover authorised only the nomination by one party of a third party to “deliver [the child] to the other parent’s home”. There was no provision for the parent to whom the child was to be delivered to nominate a third party to collect the child.

28. In any event, the magistrate disbelieved the mother. The evidence was that she and her sister had attended Gungahlin Police Station at 3pm to collect the child. As the magistrate rightly observed, it made no sense for them to have done so if the mother truly believed an effective nomination had been made for her sister to collect the child from the father’s home. The magistrate found that the mother’s purpose in driving her sister to the father’s house was to make contact with the complainant which she herself would not have been permitted to make under the Family Violence Order and that this constituted a breach of the condition prohibiting the mother from “causing someone else” to contact the father.

29. As to the third charge, the mother accepted that she and her own father had attended the father’s address, which brought her within 100 m of the father. However, she contended that, as she was there for contact handover, the applicable restriction was 3 m. As with the second charge, that overlooked the manner of handover prescribed in the Family Court orders which, as already noted, was to occur within the Gungahlin Police Station unless the mother and the father had agreed otherwise in writing, or the party due to hand over the child had nominated a third party to deliver her to the other party.

30. The magistrate found that, by the time the mother and her father went to the father’s home, the mother knew there was to be no handover that day and that, with no handover to be facilitated, her presence in the father’s street constituted a breach of the 100 m condition. Her Honour further found that the mother’s purpose in driving her father to that location was for him to demand that handover occur. In that way, she caused him to contact the father, which also constituted a breach of the Family Violence Order.

Liberato

31. The first new ground alleges failure to give what is known as a Liberato direction, named after the decision in Liberato v The Queen [1985] HCA 66; 159 CLR 507. It was common ground between the parties that the magistrate gave herself no such direction. The critical question is whether this was a case in which the direction was required.

32. That in turn raises two issues. The first is the extent to which magistrates in the Territory are required to give themselves legal directions and to articulate those directions in their reasons for decision. The second is whether a Liberato direction was required in the circumstances of this case.

33. In criminal proceedings in the Supreme Court, the requirement for a judge to articulate principles of law is explicit. Section 68C(2) of the Supreme Court Act 1933 (ACT) provides: The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.

34. In Wolter v Broomhall [2023] ACTSC 331, Baker J had occasion to consider, in the absence of any equivalent provision governing criminal proceedings in the Magistrates Court, the existence and content of any obligation of a magistrate to give reasons that include the matters specified in s 68C(2). Unsurprisingly, for the cogent reasons explained at [59]-[69] of the judgment, her Honour held that magistrates do have a duty to state the facts found and the legal principles applied to those facts in reaching a decision. Her Honour said at [62]: Accordingly, even though there is no equivalent to s 68C(2) in respect of decisions of the Magistrates Court, it remains “part of the magistrate’s duty to state the facts found and the legal principles applied to those facts, for the purpose of reaching a verdict”: Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713; 222 A Crim R 106 at [56], citing Donges v Ratcliffe [1975] 1 NSWLR 501 at 507.

35. Importantly however, as Baker J was careful to note at [63], the content of that duty will vary depending on the issues in dispute. Her Honour concluded at [69]: As outlined above, it remains necessary for a magistrate to refer to any directions or warnings that they have taken into account in reaching their decision. However, bearing in mind the absence of a provision that expressly requires that a warning or direction be recorded, and recognising that appropriate allowance should be made in respect of ex tempore judgments delivered by magistrates with limited resources in a busy list, this may be done through demonstration within the magistrate’s reasons for decision that the direction or warning has been taken into account.

36. It is significant in that context to note that the directions of law the appellant now complains were not articulated by the magistrate are directions calculated to underscore (particularly for a jury) the directions concerning the onus and standard of proof. I will return to consider the implications of that consideration.

37. The standard Liberato direction as stated in the NSW Judicial Commission Bench Book is as follows: First, if you believe the accused’s evidence [or: the account relied on by the accused in their interview with the police], obviously you must acquit. Second, if you find difficulty in accepting the accused’s evidence [or: the account relied on by the accused in their interview with the police], but think it might be true, then you must acquit. Third, if you do not believe the accused’s evidence [or: the account relied on by the accused in their interview with the police], then you should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that you do accept, proved the accused’s guilt beyond reasonable doubt?

38. The appellant’s submissions on this issue were pitched at a high level. It was contended that, if the magistrate had applied that direction, she would have “placed the evidence of the accused to one side” but that she did not. The appellant submitted that, as a consequence, there was “no demarcation, and thus no separate consideration of the prosecution case independent from the rejection of [the mother’s] evidence” as allegedly required by the direction. The appellant submitted that instead the magistrate “conflated” the mother’s credit issues with an acceptance of the father’s account. It was submitted on that basis alone that the hearing became unfair to the mother and occasioned a miscarriage of justice.

39. The submission did not engage with the detail of the evidence or the issues in the case. Rather, it tended to suggest that the principle derived from the decision in Liberato imposes a formulaic structure on the reasoning of the decision-maker, failure to adhere to which will, of itself, constitute error.

40. Counsel for the prosecution submitted that a Liberato direction was not required in the circumstances of this case. She relied on the remarks of the High Court in De Silva v The Queen [2019] HCA 49; 268 CLR 57 at [13]: Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion, whether express or implied, that the jury's determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional directions as to the onus and standard of proof. As Wheeler JA also observed in Johnson, the expression "reasonable doubt" is apt to convey that a juror who is left in a state of uncertainty as to the evidence should not convict.

41. The prosecution noted that there was no issue in the present case as to the underlying conduct relied upon to support the charges. The text messages, the Family Violence Order and the Family Court orders were all before the magistrate as exhibits. The attendance at the father’s house of the mother, her sister and her father was admitted. There was a photograph of the mother sitting across the road from the father’s house. The issues in the case were confined to whether any of that conduct contravened the Family Violence Order and the mother’s state of mind as to her conduct. It was not a case in which there was any fact asserted by the father which was denied by the mother. In that context, it is not clear what the task allegedly overlooked (of putting the accused’s evidence to one side and giving separate, independent consideration to the prosecution case) would have entailed, or how that exercise could have led the magistrate to entertain a reasonable doubt as to the mother’s guilt.

42. The prosecution submitted that the circumstances of the present case have some analogy with the circumstances considered by the New South Wales Court of Criminal Appeal in Yacoub v R [2021] NSWCCA 166, a case involving an allegation of dealing with property suspected of being the proceeds of crime. There was no issue in that case that the offender had possessed the money in question. Justice Basten (with whom Walton and Adamson JJ agreed) noted at [21] that the case was not one in which the prosecution had to prove a factual element denied by the accused. The objective issue was whether the money was the proceeds of crime. That did not turn on the accused’s state of mind. So, here, the issue of whether the mother’s conduct breached the Family Violence Order was an objective one. The Court in Yacoub held that the case was not one in which the principle in Liberato was engaged.

43. As to the mother’s state of mind, that was a matter of inference. The mother gave evidence to refute the inferences contended for by the prosecution. The issue for the magistrate’s determination was whether it was reasonably possible that the mother was not at least reckless as to whether her conduct breached the order. I return in that context to the matter noted at [36] above, that both the Liberato direction and the Jovanovic direction are calculated to underscore (particularly for a jury) the directions concerning the onus and standard of proof.

44. As noted on behalf of the prosecution, the magistrate appropriately directed herself as to the onus and standard of proof, as follows: The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that she did not commit the offence charged. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence as accepted satisfies me beyond reasonable doubt of her guilt. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence, then the defendant remains presumed innocent and I must dismiss the charge. If I am satisfied that there may be an explanation consistent with innocence of the defendant of the charge or I am unsure where the truth lies, then I must find the charge has not been proven to the requisite standard and I must dismiss the charge.

45. Having regard to those direction and the issues in the case, I am not persuaded that the absence of a Liberato direction amounted to error. The magistrate explicitly acknowledged that if there was an explanation consistent with innocence or she was unsure where the truth lay, she was obliged to find the charge “not been proven to the requisite standard” and to dismiss the charge. That is the proposition encapsulated in the Liberato direction. Adopting the language of Baker J in Wolter v Broomhall, there was “demonstration within the magistrate’s reasons for decision that the direction or warning has been taken into account”.

46. The issue raised by this ground was not unarguable and raised an important question. Accordingly, I propose to grant leave to rely on this ground but to dismiss the ground. To spare the appellant the expense of filing an amended notice of appeal, the requirement to do so will be dispensed with, as allowed by r 6 of the Court Procedures Rules 2006 (ACT). The amendment will be noted manually on the existing notice of appeal.

Motive to lie

47. The second new ground alleges a failure to give what is known as a Jovanovic direction, named after the decision of the New South Wales Court of Criminal Appeal in R v Jovanovic (1997) 42 NSWLR 520.

48. Without wishing to put a gloss on the careful and detailed submissions made on behalf of the mother at the hearing of the appeal, both in writing and in oral submissions, the gist of the argument under this ground was that the father’s allegations were “nothing more than a contrivance to unfairly antagonise [the mother] and to use any response by her as leverage in the Family Court proceedings”. It was submitted that the mother’s evidence and the cross-examination of the father at the hearing raised the suggestion that he had a “motive to lie and manufacture the allegations for an ulterior and undisclosed purpose”.

49. The prosecution submitted that leave to amend the notice of appeal to rely on this ground should be refused because the appellant did not raise the issue of motive to lie or ask the magistrate to direct herself on that issue.

50. As set out in the appellant’s submissions, the allegation of a motive to lie was raised during argument on the permissibility of a line of questioning in cross-examination. However, that allegation made no sense in circumstances where, as I have explained, the facts were largely not in issue. The conduct constituting the alleged breaches was not proved (or otherwise) by the evidence (truthful or otherwise) of the father; it was proved by the documents and the admitted conduct of the mother.

51. An exception to that general characterisation of the case is that the mother asserted she had asked her solicitor to write to the father to nominate her sister to collect the child on 22 May 2021. However, as I have explained, even if that evidence had been accepted, it would not have spared the mother from a finding of guilt as the orders did not provide for nomination of a third party to collect the child (as opposed to nomination of a third party to deliver the child).

52. In any event, the issue of an alleged motive to lie, if raised, was barely raised and was not the subject of any request for a direction. That circumstance invokes the remarks of Mossop J in SBT v Colvin [2020] ACTSC 216, where his Honour said at [61]: In appeals from the Supreme Court to the Court of Appeal, rule 5531 of the Court Procedures Rules 2006 (ACT) restricts an appellant’s capacity to raise matters on appeal where no objection was taken at trial. There is no equivalent to r 5531 that applies in relation to appeals from the Magistrates Court to the Supreme Court. However, the same policy considerations are applicable. It is highly undesirable that parties raise for the first time on appeal matters not raised before the magistrate hearing the case. To permit such a course will have the effect of encouraging parties not to raise all of the available arguments and to not provide proper assistance to the magistrate hearing the matter, saving for appeal available arguments to be raised in the event of a conviction. That is a course which is very clearly contrary to the proper administration of criminal justice in the Territory. It is unnecessary in this case to take the issue further as, when considered, the two additional matters would not, if permitted to be raised, alter the outcome of the appeal.

53. Furthermore, as already explained, the Jovanovic direction does not raise a discrete legal principle but is to underscore the directions concerning onus and standard of proof. As set out above, the magistrate gave herself unimpeachable directions on those matters.

54. For those reasons, I respectfully agree with the prosecution that leave to rely on this ground should be refused.

Orders

55. For those reasons, I make the following orders: (1) I grant leave to the appellant to rely on proposed new ground (1) but dismiss that ground. (2) I refuse leave to rely on proposed new ground (2). (3) In accordance with r 6 of the Court Procedures Rules 2006 (ACT), I dispense with the requirement for the appellant to file an amended notice of appeal.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date: