R v Ashby [2010] VSC 14

1 The accused has pleaded not guilty to 11 counts of perjury. Each count is founded on the allegation that the accused knowingly falsely swore to particular matters on 15th October 2007 when he was 'a witness at a hearing held pursuant to section 86P(1)(a) of the Police Regulation Act 1958 ('the PR Act').'

2 The hearing in question was conducted by Mr Murray Wilcox QC[1] as a delegate of the Director of Police Integrity ('the Director'). The defence contends that the delegation founding the hearing was not effected in accordance with the PR Act and in turn the hearing was not one conducted pursuant to s 86P(1)(a) of the PR Act or other lawful authority.

3 The defence relies on s 151 of the Evidence Act 1958 ('the Evidence Act') which provided at the relevant date:

It shall not be lawful for any person to administer or cause or allow to be received any oath or affidavit touching any matter or thing whereof such person hath not jurisdiction or cognisance by or under some Act or ordinance in force. But nothing in this section shall be construed to extend to any oath solemn affirmation or affidavit before any person in any matter or thing touching the preservation of the peace, or the prosecution trial or punishment of offences; or touching any proceedings before the Legislative Council or Assembly or any committee thereof; nor to any oath or affidavit which may be required by the laws of any foreign or other country out of Victoria to give validity to instruments in writing designed to be used in foreign or other countries respectively.

4 It is appropriate first to consider the role of the Director. At the relevant time s 102A of the PR Act established the Office of Police Integrity ('OPI') and provided that the office 'is to have' a Director, who is to be the same person as the person who holds office as Ombudsman.

5 Section 102B(1) provided the OPI and the Director had the functions conferred on them by the PR Act or any other Act.

6 Section 102B(2) provided in turn that the OPI and the Director 'have power to do all things that are necessary or convenient to be done for or in connection with the performance of their functions.'

7 Section 102BA set out the objects of the Director (none were stated for the OPI) including:

(b) to ensure that police corruption and serious misconduct is detected, investigated and prevented.

8 Section 102C provided for the appointment of an Acting Director if for any reason the person holding the office of Ombudsman was unable to perform the duties of the Director.

9 Section 102D(1) provided that before the Director or Acting Director performed any of the duties of the Director, he or she must take an oath or make an affirmation that he or she -

(a) will faithfully and impartially perform the duties of office of Director; and

(b) will not disclose, except as authorised by law, any information received in the performance of those duties.

10 Section 102D(2) provided for the taking of a like oath or the making of a like affirmation by a member of staff of the OPI before the performance of any duties.

11 Section 102D(3) provided that the Director may require a person engaged under s 102E(1)(b) to provide services to the Director, to take a like oath or make a like affirmation.

12 Section 102D(4) provided that the oath or affirmation required under that section be administered by the Speaker of the Legislative Assembly in the case of the Director or Acting Director, and by the Director or Acting Director in any other case. It follows that in the ordinary course of events the Director would have personal knowledge of oaths taken pursuant to ss 102D(2) and (3).

13 It can be seen that the provisions for oaths and affirmations contained in the PR Act sequentially provide for different levels of person involved in the activities of the OPI.

14 At the relevant time the Director had powers of his own motion to investigate the conduct of a member of the police force - s 86NA of the PR Act.

15 In turn the Director might (but was not required to) hold a hearing pursuant to s 86P(1)(a).

16 By s 86PA(1) the Director was in effect invested with the same powers as a Royal Commissioner under ss 17, 18, 19, 19A, 19B, 20 and 20A of the Evidence Act.

17 These included the power to examine witnesses on oath pursuant to s 18 of the Evidence Act.

18 The PR Act contains further specific provisions relating to the Director's power to examine witnesses. Section 86PA(4) provides that it is not a reasonable excuse for a person to fail to provide evidence for the purpose of an investigation, on the ground that the evidence may tend to incriminate the person, if the Director certifies in writing that, in his or her opinion, the giving of the evidence is necessary in the public interest.

19 Section 86PB provides for the video recording of the attendance of a person before the Director in answer to a summons to give evidence.

20 Section 86PC governs underage and impaired witnesses.

21 Section 86PD provides the Director may apply to a magistrate for the issue of a warrant to arrest a recalcitrant witness.

22 Section 86PE enables the Director to give directions for the bringing of witnesses before him or her from custody.

23 Section 86Q gives the Director the power to require answers from members of the police force and makes non-compliance a breach of discipline liable to be dealt with under s 69 of the PR Act.

24 The PR Act also gives the Director a series of discretionary powers in conjunction with the power to investigate, including the power to refer matters to the DPP (s 86QA), and the power to request the Chief Commissioner of Police to carry out a further investigation (s 86R).

(a) the functions of the Director involve matters of the highest public interest; and

(b) the powers of the Director are substantial and capable of serious impact upon the rights and obligations of members of the police force and the public.

26 At the relevant date, s 102F of the PR Act provided as follows:

102F Delegation by Director

(1) The Director may, by instrument, delegate to a relevant person any power of the Director under this or any other Act, other than this power of delegation or a power under section 86KB(2) or under section 61H(2) of the Whistleblowers Protection Act 2001.

(2) For the avoidance of doubt and without limiting the generality of subsection (1), the Director may delegate to a relevant person any of the Director's powers under the Evidence Act 1958, whether or not the Director has delegated to the member of staff the power to conduct an investigation under Part IVA of this Act or Part 5 or 7 of the Whistleblowers Protection Act 2001.

(3) In this section -

relevant person means -

(a) a member of staff of the Office of Police Integrity; or

(b) a person who has taken an oath or made an affirmation under section 102D(3).

27 It can be seen first that the power to delegate expressly includes the Director's powers under the Evidence Act, including the power to examine on oath which is critically in issue in the present case.

28 Secondly, the power to delegate is subject to two requirements, namely that delegation be effected by instrument and that it be to a relevant person as defined.

29 The defence submits that Mr Wilcox did not at the time of the purported delegation fit within the defined class of relevant persons. The affidavit material shows the instrument of delegation was executed on 24 September 2007 and the affirmation made under s 102D(3) was made before the Director on 25 September 2007.

Pursuant to section 102F (1) of the Police Regulation Act 1958, I, GEORGE EUGENE BROUWER, Director, Police Integrity for the State of Victoria -

1. HEREBY delegate to MURRAY RUTLEDGE WILCOX QC the following powers:

1. all powers of the Director, Police Integrity under the Police Regulation Act 1958, other than:

• the power of delegation under section 102F(1) of the Police Regulation Act 1958;
• any power under section 86KB(2) of the Police Regulation Act 1958; and
• any power/obligation under section 102K of the Police Regulation Act 1958;

b) Evidence Act 1958 -

1. all powers of the Director, Police Integrity under sections 17, 18, 19, 19A, 19B, 20 and 20A of the Evidence Act 1958.

[signed]

G E BROUWER

DIRECTOR, POLICE INTEGRITY

Dated: 24 September 2007

31 The defence submits Mr Wilcox was neither a member of staff of the OPI, nor a person who had taken the relevant oath or made the relevant affirmation at the time of the purported delegation. In consequence it is submitted he was not within that class of persons to whom a delegation could be made under s 102F.

32 The submission falls to be considered in accordance with accepted principles of statutory construction. These include those stated by the majority of the High Court in Project Blue Sky Inc and Ors v Australian Broadcasting Authority,[2] to which reference was made in argument.

1. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
2. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
3. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

33 A construction that would promote the purposes or object underlying the Act is to be preferred to a construction which would not promote that purpose.[3]

34 Although upon the particular facts of this case the result may appear arbitrary, I have come to the view that the construction of the relevant statutory provisions relied on by the defence is correct. This analysis accords with the plain meaning of the language of the section, gives effect to each word of the section and attributes a meaning supported by its context.

35 I turn first to the language of the section. The section does not utilise the format of s 102(D)(1) and (2). It does not in terms require an oath before the delegate performs any duties. Rather it defines the class of persons who may be appointed by instrument and does so by reference to two categories of persons. The first category constitutes members of staff of the OPI and the second category comprises persons who have taken the oath or made an affirmation. The condition imposed in respect of relevant persons relates to the act of delegation and not the subsequent exercise of power.[4]

36 The word 'has' connotes a clear temporal requirement.[5] It is envisaged the proposed delegate will be a relevant person as defined at the time of appointment. This is hardly surprising given the nature of the powers in issue. Further it imposes no undue burden upon the Director because it is before the Director that the oath must be taken or the affirmation made.

37 The contrary view that a delegate may qualify after the delegation does not give full effect to each word adopted in the section. It does not maintain the requirement that the delegate be a relevant person at the time of appointment by instrument as sub-s (1) provides. It treats the requirement that a relevant person be one 'who has taken an oath or made an affirmation' as somehow having a conditional prospective meaning, when this phrase in terms describes an existing state of affairs.

38 The context of the section supports the construction for which the defence contends in a series of ways:

(a) the powers being delegated are those of the Director, and hence the most significant powers exercised under the Act;

(b) those powers are exercisable for objects which are of the highest public importance;

(c) the powers are extensive and potentially intrude significantly upon the rights and obligations of members of the police force and the public;

(d) the requirement for an oath or affirmation fits within a series of sequential provisions, relating to oaths and affirmations by the Director, staff and persons engaged to provide services. It is expressed in terms which take up the possibility that under s 102D(3) the Director may require a person engaged to provide services to take the oath or make the affirmation, and require jurat as a precondition to delegation;

(e) as I have said such an oath or affirmation must itself be effected before the Director or Acting Director pursuant to s 102D(4). The relevant precondition is readily given effect to by the Director and compliance with it is something which would ordinarily be within the Director's knowledge.

39 The contrary construction for which the prosecution contends is that the requirements of s 102F are met if the relevant oath is sworn or the relevant affirmation made at any time prior to the exercise of delegated power. This construction carries with it the consequence that there is a period (potentially an extended one) in which the relevant instrument purports to effect a delegation, but no delegation has in fact taken place because the requirement for an oath or affirmation has not been met. In turn there is an inherent risk that a purportedly effective instrument of delegation is taken to be such when in fact it is not underpinned by the relevant oath or affirmation. I do not accept this was the intention of the legislature. What was intended was that the Director's very significant powers be delegated in consequence of an instrument only to a relevantly qualified person. It was not intended that the validity of the delegation depend upon subsequent collateral events. Nor was it intended that a purported delegation by instrument might not have effect.

40 The requirement for the delegation to be by instrument provides for certainty, which protects the interests of all the parties concerned.[6] The apparent legislative purpose of the further requirement with respect to relevant persons is to ensure delegation is made only to persons having the relevant qualification in respect of the oath or affirmation.[7]

41 The conditions imposed on the power to delegate the Director's powers are properly viewed as procedural safeguards for persons affected by the delegation. As such, they should not be construed narrowly.[8]

42 The statutory conditions in issue confine the power to delegate. They do not go to terms of the delegation.[9]

43 The prosecution raises some nine arguments, which it is submitted defeat the defence case.

44 First it is submitted the phrase 'has taken' in s 102F(3)(b) ought not to be read exclusively in the past tense. It is submitted s 102F was amended to insert the relevant requirement by the Major Crime (Investigative Powers) Act 2004 ('the amending Act').[10] It is said that provisions of the amending Act use the phrase 'has taken' to contemplate the taking of an oath or the making of affirmation in the future. Reference is made to s 101 of the amending Act which inserted s 66C in the Sex Offenders Registration Act 2004:

66C Powers in relation to monitoring

(1) An authorised officer may, after notifying the Chief Commissioner of Police of the intended entry -

(a) enter at any time premises occupied by the police force at which the Director reasonably believes there are documents that contain, or relate to, the Register of Sex Offenders or any part of that Register or that are relevant to the Director's functions under this Part; and

(b) inspect or copy any document found at any premises entered under paragraph (a); and

(c) do anything that it is necessary or convenient to do to enable an inspection to be carried out under this section.

(2) For the purposes of this section, an "authorised officer" is -

(a) the Director; or

(b) a member of staff of the Office of Police Integrity within the meaning of the Police Regulation Act 1958 who is authorised under sub-section (3); or

(c) a person who has taken an oath or made an affirmation under section 102D(3) of the Police Regulation Act 1958 and who is authorised under sub-section (3).

(3) The Director may authorise a member of staff of the Office of Police Integrity or a person who has taken an oath or made an affirmation under section 102D(3) of the Police Regulation Act 1958 to exercise the powers of an authorised officer under this section.

45 I do not read sub-ss (1) and (2) of s 66C as permitting the exercise of the relevant powers save by an 'authorised officer' being a person authorised in the sense of meeting one of the alternative requirements for qualification at the time of the exercise of the relevant power.

46 In the same way a person will not be a 'relevant person' pursuant to s 102F of the PR Act unless at the time of delegation he or she meets the definitional requirements of s 102F(3).

47 Section 66C(3) of the Sex Offenders Registration Act 2004 is given effect by sub-s (2)(c). What is required by the section as a whole is that one of the alternative qualifications be met before exercise of the powers under sub-s (1).

48 It is plain that the use of the phrase 'who has taken an oath or made an affirmation' in sub-s (2) requires a completed jurat. Likewise although I accept there is room for some debate, the better view is that sub-s (3) also contemplates the authorisation only of an existing staff member or a person who has at the time of authorisation taken an oath or made an affirmation under s 102D(3).

49 In addition, whilst s 66C can be compared with s 102D of the PR Act, I do not accept that its structure and drafting are directly analogous to s 102F.

50 Further in any event the relevant context for the interpretation of the power with which I am concerned is primarily that of the contextual provisions of the PR Act and not the Sex Offenders Registration Act 2004. I am not persuaded the provisions of the amending Act provide a contextual circumstance which leads to a different conclusion from that which I prefer.

51 The prosecution also submits that if the word 'has' is regarded as speaking in the past tense, this would restrict delegation under s 102F, to persons who had met the jurat qualification at the date of commencement of the relevant statutory provision. In my view it is plain that the relevant requirement speaks at the date of delegation. The question is what is its effect? I do not find this submission of assistance.

52 The prosecution submits that the intention of Parliament is that, before a person exercises certain powers of the Director, that person:

It is submitted the order of those steps is immaterial so long as they have been taken prior to the delegate exercising any of his powers: see s 102D.

53 As I have already recorded, there is a plain distinction between the language of s 102D and s 102F which does not assist the prosecution. A deliberate choice was made in s 102F not to utilise the language of s 102D and require an oath or affirmation before the performance of duties by a delegate. The effect of the difference in language is that the Director must select a person who has already taken the oath or made the affirmation. The instrument must relate to someone who falls within the class of candidate contemplated by the legislature as appropriate. There is nothing particularly surprising in this requirement, given the significance of the Director's functions and the extent of his powers pursuant to the PR Act.

54 The submission made on behalf of the prosecution is premised upon the proposition that the statute authorises the conditional appointment of a person not at the time of delegation a relevant person qualified to be appointed. I do not accept this premise.

55 The prosecution submits the Director intended the instrument of delegation to be subject to the taking of an oath or making of an affirmation. It submitted the omission by the instrument to say so was merely an error of form.

1. When engaging staff or contractors it was my usual practice to swear or affirm the relevant person before assigning any task, or giving any instructions, or executing and issuing any other documents such as delegations in respect of them.[11]
2. It was and remains my understanding and intention that my powers were not delegated until three events had occurred:

(a) an instrument of delegation was signed;

(b) the subject of the delegation had taken the oath or affirmation; and

(c) the signed instrument of delegation had been provided to the subject of the delegation.

1. Mr Wilcox was Sydney based and I have no recollection of contact with Mr Wilcox in any form between the time I met with Mr Wilcox on 25 August 2007 and the arrival of Mr Wilcox from Sydney on the morning of 25 September 2007, prior to the commencement of the first hearing Mr Wilcox was to conduct.

57 This evidence does not evince an intention to express a condition in the relevant instrument. It also shows that Mr Brouwer did not follow his usual practice on this occasion.

58 Further, the words in the instrument are themselves unambiguous and plain.[12] The condition now contended for is not specified.[13]

59 There is no basis on which the instrument could be regarded as being intended to state what it does not.

60 Further in any event, I do not accept the premise of this argument, which is that a person who is not a 'relevant person' as defined, can be validly appointed on a conditional basis as the prosecution submits.

D Does breach of the requirement invalidate the appointment?

61 It was next submitted that even if Mr Wilcox was not a 'relevant person' at the time of delegation, this breach does not necessarily render the delegation ineffective. Reference was made to the Project Blue Sky case:

1. An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

1. In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".[14]

62 I am satisfied it was a purpose of the legislation that the power to delegate be restricted by the requirements stated in the section and that a purported delegation not meeting those requirements be invalid.

E What makes an instrument of delegation effective?

63 It was next submitted an instrument of delegation is ineffective or 'in a state of suspension', until firstly the delegate is notified of the delegation by seeing the instrument, and secondly the delegation is published to any person affected by the exercise of power under the instrument.

64 I accept this may be true as a matter of administrative reality, but the giving of the notices referred to is not what conditions the power of delegation under the relevant statutory provision. The statute envisages delegation crystallises in the instrument.

65 It was next submitted the power to engage persons to provide services under s 102E 'for the purpose of performing the functions of the OPI or the functions of the Director', coupled with the ancillary power provision under s 102B (enabling the Director to do all things that are necessary or convenient to be done in connection with the performance of his functions) authorises delegation of the Director's functions independently of s 102F.

66 I do not accept this submission. Whatever may be the precise limits of s 102B, it does not authorise delegation of the Director's powers under the Evidence Act. Such delegation is expressly provided for and regulated by s 102F.

67 There is also a fundamental problem with the concept of exercise of discretion in the course of any investigation, if that discretion is specifically given to the Director by statute and it was not in turn delegated eg, the PR Act ss 86P(1)(b), (c) and (d), 86PA(4), and 86PD.

68 Further and in any event in the present case the Director did not find it necessary or convenient to act other than in purported compliance with s 102F. The question now in issue is whether he effected this compliance.

1. Was the oath taken by the accused in any event sufficient to found a charge of perjury?

69 If the delegation was ineffective at law, then the hearing was not of the character alleged in the presentment.

70 Further, the power to examine on oath relied on for the conduct of the hearing was purportedly conferred through s 18 of the Evidence Act. If that power was not validly delegated, then no other statutory power has been identified which supports such examination.

71 In turn the oath was not administered in accordance with statutory authority as required by s 151 of the Evidence Act.

72 Section 100 of the Evidence Act, to which reference was made in the course of argument, goes to the manner of administration of the oath and not to the power to examine on oath.

H Section 110 of the Evidence Act 1958

73 Section 110 of the Evidence Act relevantly provided:

110 Courts etc. may administer oaths to witnesses

All courts and persons having by law or by consent of parties authority to hear receive and examine evidence are hereby empowered to administer oaths to all such witnesses as are legally called before them respectively.

74 Unless pursuant to delegation, Mr Wilcox did not have by law authority to hear, receive and examine evidence. He was as a result neither a 'court' as defined by s 3 of the Evidence Act in the sense of a 'person acting judicially', nor a person of the class otherwise referred to in s 110. Accordingly he had no power to administer oaths to witnesses.

I Section 111 of the Evidence Act 1958

75 Section 111 of the Evidence Act provided:

111 Power of certain officers of courts etc. to administer oaths

Every person who being an officer of or performing duties in relation to any court is for the time being so authorized by a judge of the court or by or in pursuance of any rules or orders regulating the procedure of the court and every person directed to take an examination in any cause matter or proceeding in any court shall have authority to administer an oath or take an affidavit for any purpose connected with his duties.

76 These provisions go to the manner of administration of the oath. They do not authorise examination of a witness upon oath.

77 Perjury is both a statutory offence under s 314 of the Crimes Act 1958 and an offence at common law.

78 The crime at common law was described by King CJ in R v Traino:[15]

The crime of perjury consists in giving upon oath, in a judicial proceeding, before a competent tribunal, evidence which was material to some question in the proceeding and was false to the knowledge of the deponent, or was not believed by him to be true.

79 Section 314(1) of the Crimes Act 1958 provides:

Whosoever commits wilful and corrupt perjury or subornation of perjury shall be liable to level 4 imprisonment (15 years maximum).

80 It follows from my conclusions that the answers given upon oath in the hearing before Mr Wilcox were not answers given upon oath before a competent tribunal in the relevant sense.

[2] [1998] HCA 28; (1998) 194 CLR 355, 381-2 (citations omitted).

[3] Interpretation of Legislation Act 1984 s 35.

[4] Compare the concept of 'eligible person' as provided for in s 102AB of the PR Act as amended by Act No. 67 of 2007.

[5] Cf Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137; (2007) 154 LGERA 60, [42] per Tobias JA.

[6] Cf B v Victorian Lawyers RPA Limited [2002] VSCA 204; (2002) 6 VR 642, [39], 657; Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820, [99].

[7] Cf R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263, [34], 271, per Bell J, applied in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10.

[8] Cf B v Victorian Lawyers RPA Limited [2002] VSCA 204; (2002) 6 VR 642, [38], 656.

[9] Cf s 42A Interpretation of Legislation Act 1984.

[10] Section 102F was first formulated in and inserted by s 3 of the Major Crime Legislation (Office of Police Integrity) Act 2004 (which came into operation on the same day as the amending Act):

The Director may, by instrument, delegate to any person any power of the Director under this or any other Act, other than this power of delegation.

[12] Cf Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820, [88].

[13] Cf s 42A(1)(b) Interpretation of Legislation Act 1984.

[14] Project Blue Sky Inc and Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [91] and [93], 389-391 (citations omitted).

[15] (1987) 45 SASR 473, 475.