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[2013] VSC 48
General information, not legal advice.
Supreme Court of Victoria
2013-02-15
LASRY J
Original judgment source is linked above.
CRIMINAL LAW -- Application for temporary stay -- Lack of instructing solicitor for counsel for the Accused -- Legal Aid Guidelines -- Nature of trial judge's authority -- Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 -- Section 197 Criminal Procedure Act 2009 -- Role of Solicitor -- Importance of Role -- Forensic Decisions of Counsel -- Comparison with Crown's resources -- Risk of unfairness -- Application Granted
**1 Matwali Chaouk is about to stand trial charged with several counts. First, that on 15 November 2009 at Altona North, he attempted to murder Sabet Hadara. Second, and alternatively to the first count, that he recklessly engaged in conduct which endangered the life of Sabet Hadara. And third and fourth, that on the same date and at the same place he recklessly engaged in conduct that endangered the lives of Natalie Camilleri and Antonio Sawan.
2 The prosecution case is that on 15 November 2009 the accused fired a number of gunshots into a motor vehicle being driven by Natalie Camilleri and in which Sabet Hadara and Antonio Swan were passengers. It is alleged that the accused intercepted the vehicle containing Hadara, Camilleri and Sawan at the intersection of Chambers and Blackshaws Roads in Altona North. He is alleged to have driven a black BMW in front of their vehicle, stopped at an angle and from the driver's seat pointed a hand gun at Hadara and fired a number of shots which hit the windscreen of the vehicle. Hadara believed the rounds were .22 rounds. The Crown case is that having fired those shots, the accused and a second vehicle containing individuals who are now witnesses in this trial, sped off.
3 Police first became aware of this incident on 16 November 2009 as result of being contacted by Mr Sawan's mother. None of the vehicles said to have been involved in the incident were examined by police. Six days after the incident, the windscreen of the vehicle that was allegedly hit by these shots was replaced and the damaged one destroyed. There was no forensic examination of the damaged windscreen.
4 The issue in the trial which has already been identified is whether the Crown can prove beyond reasonable doubt that, if the incident occurred, it was the accused who fired the shots. The defence response includes in part the following:**
...the accused...was not present, did not fire a shot or shots at the nominated vehicle and did not meet (with another vehicle said to have been involved) in a side street in Brooklyn and throw a hand gun into the car that [a particular witness] was in.
**5 The Crown case is to be put with both direct evidence and circumstantial evidence. There will first be evidence of what the Crown have referred to as 'background', dealing with the fact that after June 2009 there was significant hostility between the Chaouk and Haddara families following the death of Mohammed Haddara. It is alleged that on the day before this incident there was an argument at Williamstown beach between Sabet Hadara and a person involved in the shooting the following day. Later that evening Sabet Hadara was allegedly threatened by the brother of the accused over the telephone including a threat that he would be killed. There will then be evidence from the witnesses who were involved in the incident. There will also be evidence which analyses the call charge records of several telephones.
6 This trial was due to commence last Monday 11 February 2013 and I was informed that it would take about two weeks, although I indicated that I would tell the jury panel closer to three weeks. On that day, some preliminary matters of admissibility were raised by Mr Andrew Jackson of counsel, who appears for the accused, and responded to by Mr Garry Livermore of counsel, who appears to prosecute. I ruled on these issues immediately.
7 A further matter was raised by the prosecutor which I need not detail concerning two Crown witnesses which was later resolved, but the result was that there was some uncertainty about when the jury would be empanelled. In response to this, Mr Jackson said:[1]**
As Your Honour is no doubt aware, Victoria Legal Aid who are funding this particular matter on behalf of the accused, brought in at the start of this year certain requirements. My instructing solicitors are allowed, no matter how long the trial goes, two half days of paid attendance. I certainly want my instructor, or someone from my instructor's office present when the jury is actually empanelled. I'd made arrangements today - - -
HIS HONOUR: Mr Jackson, I won't empanel a jury until you've got an instructor to assist you.
MR JACKSON: Thank you, I appreciate that.
8 On the following day, the Crown prosecutor announced that for reasons which are irrelevant to this application, he wished to call some witnesses earlier than he had previously indicated. In response to that information, and the preparedness of the Court to call a jury panel, Mr Jackson said:[2]
I hadn't anticipated Mr [X] being the first witness, which is going to cause me to have to shift things around a little bit...I have rung those from my instructing solicitor's office to ascertain their whereabouts, particularly given the uncertainty we had last night as to [proceeding to empanelment] this morning. My principal instructor is presently at Frankston. My other instructor is at Melbourne Magistrates' Court. I make a presumption he was on his feet because I had to - the phone was unanswered and I sent a text message to him.
What I may do is if Your Honour does stand down I may go over to the Magistrates' Court myself and seek to locate my instructing solicitor and get some form of timing from him that would be of assistance to Your Honour.
**9 Those circumstances demonstrated that not only was the assistance to Mr Jackson from his instructing solicitor going to be limited to two half days of the trial, however long it takes, but when, at relatively short notice I indicated that we were ready for a jury panel, Mr Jackson himself was setting off to the Magistrates' Court to try to find someone to assist in that capacity.
10 Those circumstances also precipitated some later observations from me about Mr Jackson's circumstances and the possible effect on his client's trial and I indicated that I would stand the trial down and invite Mr Jackson to forward the transcript of those observations to the relevant person at Victoria Legal Aid and to inform me at 10:30am on Wednesday 13 February whether they were willing to provide an instructing solicitor for Mr Jackson for the duration of the trial.
11 At 10:30am on Wednesday 13 February, Mr Jackson informed me that the situation had not changed and that other than the two half days, he would not have the assistance of an instructing solicitor. In summary, he then made the following submissions:**
**12 As I understand the application, which was very brief, it is one for a temporary stay of the trial until such time as Mr Jackson is actually assisted during the trial by his instructing solicitor, Mr Nikakis. Mr Livermore, for the Director of Public Prosecutions, indicated that he had instructions to make no submissions on the issue. Taking that course is a matter for Mr Livermore and those instructing him, but I am entitled to assume that the Director of Public Prosecutions has a significant interest in ensuring a fair trial for the accused.
13 I should note at this point, that at the time this matter was raised, I was aware that a similar application was being made before T Forrest J, though on a different basis. I also note that on Tuesday 12 February, I indicated that I would consider the future of this trial the following morning if the situation did not change. It did not change and I now must deal with whether the trial should be stayed.
14 Despite my indications, Mr Jackson's application has not been the subject of contradiction by any other party that might have an interest in the outcome. This morning, before handing down this ruling, Victoria Legal Aid were contacted and invited to make submissions on the issue. Mr Saul Holt SC, who had appeared for Victoria Legal Aid in the application before T Forrest J reiterated to my Associate the position he had taken in that matter - whether a stay should be implemented in the Court's inherent jurisdiction was a matter between the parties and Victoria Legal Aid would not seek to make submissions on the issue.
15 As I understand it, this situation has arisen because of funding issues and the reduction of availability of solicitors is a money saving measure. I do not know the detail of those issues, which are irrelevant for my purposes.[3] There have been debates about legal aid funding for many years. This is the latest of them. No one has argued, either before me, or in cases arising under what was s 360A of the Crimes Act 1958 that the role of an instructing solicitor was in any sense unnecessary to securing a fair trial - quite the opposite.**
16 A provision which is potentially relevant to this application is contained in the Criminal Procedure Act 2009 which concerns the legal representation of an accused person. In particular s 197 provides:
(1) In this section -
private law practice has the same meaning as in the Legal Aid Act 1978;
private legal practitioner has the same meaning as in the Legal Aid Act 1978.
(2) Subject to subsection (3) and despite any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.
(3) If a court is satisfied at any time that -
(a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and
(b) the accused is in need of legal representation because the accused is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial -
the court may order Victoria Legal Aid to provide legal representation to the accused, on any conditions specified by the court, and may adjourn the trial until that legal representation has been provided.
(4) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (3).
(5) Despite anything to the contrary in subsection (3) -
(a) if the court is satisfied that, in relation to the trial, the accused has engaged in vexatious or unreasonable conduct that has contributed to the accused's inability to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial, the court may refuse to make an order under subsection (3);
(b) the legal burden of proof for the purposes of subsection (3)(b) that the accused is unable to afford the full cost of obtaining legal representation rests on the accused;
(c) for the purposes of proving under subsection (3)(b) that the accused is unable to afford the full cost of obtaining legal representation, regard must be had to property -
(i) that is subject to the effective control of the accused (whether or not the accused has an interest in it); or
as determined in accordance with section 9 or 10 of the Confiscation Act 1997;
(d) the conditions that may be specified by the court under subsection (3) do not include conditions relating to the identity, number or remuneration of persons representing the accused.
(6) A court must give Victoria Legal Aid an opportunity to appear and be heard before an order is made under subsection (3).
(7) Despite anything to the contrary in this or any other Act, Victoria Legal Aid may appeal to the Court of Appeal, if the Court of Appeal gives leave to do so, from an order under subsection (3) made by the Trial Division of the Supreme Court constituted by a Judge.
17 A question I have to consider is whether s 197(2) precludes me from adjourning this trial for the reasons proposed by Mr Jackson and not opposed by the Crown. In my opinion, s 197(2) has no application to the circumstances I am confronted with. Firstly, Mr Chaouk has not been refused legal assistance in terms. Second, in my opinion s 197(2) is formulated to make clear that the refusal of legal assistance is not, of itself, a ground for an adjournment or stay of the trial. This is consistent with, for example, the observation of Deane J in Dietrich v The Queen[4] that there could be circumstances where a trial without legal representation would "relevantly fair".[5] Thus, the refusal of legal assistance will not, of itself, be a basis for adjourning or staying the trial. Section 197(3) does not apply to the circumstances confronting me.
The power to order an adjournment or temporary stay of the trial
**18 On Mr Jackson's application for a temporary stay, the first question I must deal with is the nature and scope of the authority of a trial judge to make orders of the kind that are now sought.
19 Barton v The Queen[6] was a case where the High Court was concerned with whether the filing of an ex officio indictment was judicially reviewable and whether an unfairness arose by the failure to hold a committal proceeding. As to the power of the trial judge, concerning the prospect of an unfair trial, Gibbs ACJ and Mason J said:[7]**
There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power extends in an appropriate case to the grant of a stay of proceedings so as to permit a preliminary examination to take place. (Emphasis added.)
20 In Dietrich,[8] Mason CJ and McHugh J began their joint judgment by saying:
In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence. (Emphasis added; citations omitted.)
21 In considering the attributes of a fair trial, their Honours noted:[9]
There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial resulted in the accused being deprived of a fair trial and led to a miscarriage of justice. (Citations omitted.)
**22 Adopting the approach identified by their Honours in Dietrich, the decision I have to make as to whether to grant an adjournment or order a stay in the exercise of the Court's inherent jurisdiction, is whether the trial is likely to be unfair if the accused is forced on under the present circumstances.[10] This is not the exercise of a discretion. If I find that the trial is likely to be unfair in the relevant sense, then I must adjourn or temporarily stay the trial.[11] Relevant to the question of fairness are all the interests of justice, referring not only the interests of the accused but also to the public interest in having cases tried.
23 In Milat,[12] the Court of Criminal Appeal of New South Wales made the following remarks:**
[t]he principle in Dietrich turns upon whether representation is unavailable to an indigent accused. It would be a serious criticism of a qualified lawyer, regularly practising in the criminal area, to say that representation by such a person was the equivalent of being relevantly unrepresented...It does not concern an accused person's supposed right to competent counsel; the existence of such a right was denied by the decision in Dietrich...It may well be that, in a given case, if the only representation available to an accused is manifestly inadequate to the task, it would be appropriate to regard the accused as being, for practical purposes unrepresented. (Emphasis added).
**24 With respect, I do not agree that this is the principle of Dietrich. It is not necessary, for me to be satisfied that the trial would be unfair, that I be satisfied that the accused is unrepresented. First, the inherent jurisdiction to prevent an abuse of process, including by staying a trial which would be unfair, is unfettered.[13] The question of what is unfair must always depend upon the circumstances of the case. Second, the notion of legal representation averted to in Dietrich must necessarily import some notion of adequacy, competency or appropriateness. This is explicit in the judgments of Brennan J[14] and Toohey J[15] and implicit in the judgment of Dawson J.[16]
25 Mason CJ and McHugh J found that the right to the "effective assistance" of counsel, as acknowledged in the US, is not recognised in Australia.[17] However, this finding was made in the context of rejecting the existence of a right to the provision of counsel at public expense. It does not amount to a finding that the type of representation available to an accused is irrelevant to the question of whether forcing the trial on would be unfair. Indeed, though a slightly different question, in R v Fuller, the South Australian Court of Criminal Appeal examined the legal qualifications of the defendants in determining whether they should be forced to appear unrepresented and found that even with those qualifications, forcing the trial on carried a risk of improper conviction.[18]
26 The question here is not whether the accused is 'represented', but whether forcing his trial on in the present circumstances would be unfair. As Gaudron J said in Dietrich:[19]**
A trial is not necessarily unfair because it is less than perfect, but it is unfair if it involves a risk of the accused being improperly convicted. If the only trial that can be had is one that involves a risk of that kind, there can be no trial at all.
**27 Despite a legislative intention that the profession in Victoria be fused, since 1884 when the Victorian Bar was established, "...there have always been practitioners in Victoria who, in accordance with voluntary arrangements undertaken on their signing the Roll of Counsel maintained by the Victorian Bar, have chosen to practise solely as barristers".[20] Others chose to practice as solicitors in large or small firms in the city, suburbs or regions, sometimes with a diverse range of general work and sometimes as specialists. They are all members of the Law Institute of Victoria. Many of those lawyers are experienced in the criminal law and, although not members of the Victorian Bar, regularly act as advocates.
28 Various rules of practice have required that the two branches of the profession work in combination in relation to litigation.[21] In the practice of the criminal law, the role of a solicitor instructing counsel - whether privately instructed or instructed by the organisations which dispensed legal assistance over the years - has been fundamentally important to ensuring the fairest trial possible.
29 In my experience as a trial advocate over a period of 34 years I have understood the role of a solicitor to regularly include the following activities in indictable criminal cases:**
**30 As a result of those first three stages, the instructing solicitor is, or should be, thoroughly familiar with the facts of the case and able to provide valuable opinions and insights as required in planning the defence of the accused.
31 To continue with the role, a solicitor undertakes:**
32 There are of course other matters as well concerning the sentencing process which are not relevant for the sake of this issue. Whilst of course, some of the above activities will have already been carried out when the trial commences, there is still a great deal of work to be done. It can be seen that a great deal of the role of an instructing solicitor is strategic.
33 Defence counsel are regularly called upon to make forensic decisions during the conduct of a trial. My own experience illustrates to me that the making of the important decisions best occurs in consultation with another lawyer who is experienced and well versed in the facts of the case and the relevant law. Ordinarily, the judgements of counsel about the way they cross-examine a witness or whether they call witnesses on behalf of the accused are decisions by which the accused is bound.[22] As the Full Court of this Court said in Knowles:[23]
Decisions [upon the best course to follow] depend essentially on the judgment of counsel and counsel for the defence, familiar with all aspects and features of the trial, is in by far the best position to make such decisions.
34 It is vitally important that counsel be in the best position to make those choices with the assistance of a person who is thoroughly engaged in the trial. As Mr Jackson submitted during the course of his brief application, it is important that an experienced solicitor be involved in the making of those forensic decisions. Some decisions that counsel make will be required to be made on instructions from the client. It is very important that the solicitor be present when that occurs to avoid later disputes about what was said and what advice was given. A solicitor who has had the confidence of a client over a period of time will make the process much easier and more efficient.
Previous consideration of the role of a solicitor
35 The role of a solicitor in criminal trials has been previously examined in several jurisdictions. In DPP v Kim,[24] Eames J stated:
[i]t is, I believe, the experience of the courts in this State, and certainly my own, that, generally speaking, the proper conduct of criminal trials in higher jurisdictions requires not merely competent counsel to be engaged but, also, competent instructing solicitors. The necessity for competent instructing solicitors to be engaged is demonstrated by the fact that it is the invariable practice of prosecuting authorities to have an instructing solicitor in attendance at all times.
**36 In that case, his Honour found that "a change of solicitor at this time [the evening before the trial] would mean that I could not be satisfied that I could ensure that the accused would receive a fair trial".[25] His Honour made orders that the solicitor with a full working knowledge of the case be retained and not replaced by a Victoria Legal Aid solicitor without such knowledge. Regardless of whether or not his Honour had the power to make such an order, it demonstrates the importance which he placed in having an informed solicitor available to assist counsel.
37 In R v Sandford,[26] the New South Wales Court of Criminal Appeal considered whether there had been miscarriage of justice when counsel had not pressed for an adjournment when his instructing solicitor had fallen ill on the fourth day of a voir dire and would be absent for at least a month. The pre-trial argument lasted eight days and the trial for seven. The accused had been charged with supplying heroin and sentenced to six years and eight months' imprisonment. A clerk from the solicitor's office had attended the trial, after the solicitor had fallen ill, though not for the entirety of any one day. The Court found that there was no miscarriage of justice in continuing the trial - counsel had had the brief for nine days prior to the commencement of the trial, he had had conferences with his client and there was nothing of peculiar difficulty for counsel of average experience.
38 The Court of Appeal purported to apply the same test as the trial judge, the inquiry being whether, if counsel had pressed for the adjournment, the judge would have been obliged to grant it. However, the Court of Appeal made this inquiry with the benefit of hindsight. It was open to the Court of Appeal to state that the trial carried no particular difficulty for counsel of average experience - the Court had a full knowledge of the case and how it ran, as well as the grounds of appeal ultimately argued. I do not have that benefit and there is a certain unpredictability in this case. It would have been open for the Court of Appeal to find that even though the trial judge would have been bound to adjourn the trial, there was nevertheless no miscarriage of justice.[27]
39 In The Queen v Williams,[28] McDonald J had made an order that Victoria Legal Aid provide assistance to the defendant pursuant to what was then s 360A of the Crimes Act 1958. The defendant then sought an order for conditions including that his solicitors be provided with funds for 140 hours of preparation. His solicitors had accepted the schedule of fees offered by Legal Aid, but argued that the time allocation for preparation would not permit them to adequately prepare the trial. His Honour found that it was not necessary, in order to secure a fair trial for the accused, to order that 140 hours of preparation be paid but he did consider it necessary, that Victoria Legal Aid 'straightaway retain a solicitor for Williams, to assist in the preparation of Williams' defence, to instruct counsel in that work, to attend any necessary conferences with counsel and to instruct counsel at trial'.
40 Indeed, in cases which considered what orders should be put in place regarding solicitors in the exercise of the Court's power under s 360A of the Crimes Act 1958,[29] a provision which required that the Court be satisfied that the order was necessary to ensure a fair trial, there was no suggestion by any party at any time, that the retention of a solicitor was unnecessary.**
**41 As I have earlier mentioned, Mr Jackson referred to the prosecution's position. Mr Livermore has the assistance of an instructing solicitor, as the Crown always do. He also has the assistance of the informant police officer. That is entirely appropriate but it can be assumed that Mr Livermore will make good use of their contribution on all issues that he has to deal with in the running of the trial. Many of the kinds of things that I have already outlined will be functions that those two people will fulfil for the prosecutor. Mr Livermore will also have forensic decisions to make from time to time and no doubt will make use of those assisting him. As things presently stand, Mr Jackson would not have any such service if the trial proceeded. It will be expertise on his own opposed to the combined expertise of the prosecutor, his instructor and an experienced police officer.
42 In my opinion, the guidelines which have been applied to Mr Jackson's client are random. It is evident that to deprive him of the assistance of an instructing solicitor except for the two half days demonstrates a lack of understanding of the solicitor's role. It is true that it would be awkward for Mr Jackson to enter the dock robed for the purpose of assisting the accused with his jury challenges. But to deprive him of all the other benefits of having a solicitor, particularly with the experience of Mr Nikakis, demonstrates a lack of insight into the role a solicitor plays.**
**43 This trial, in the context of trials in this Court, could not be regarded as complex. It is a two or three week trial, but there is a great deal at stake. Obviously, verdicts of guilty would expose the accused to the prospect of significant penalty.
44 The defence of this trial will occur in an atmosphere that may well be hostile and unpredictable. Many of the benefits of the instructing solicitor that I have referred to above will be called into play if Mr Jackson is assisted by an instructing solicitor.
45 The significance of the role of the instructing solicitor is not be measured only by how many days or weeks trial will take (although that is clearly a factor) or by the complexity of the circumstances. It is important to consider what is at stake for the accused and whether there is a risk that the trial will be unfair.**
**46 In my opinion the absence of a solicitor in this case means that Mr Jackson is without a valuable resource. His workload is increased as he will also be required to do the "administrative" work and the making of arrangements. More importantly, and in the context of this increased workload, he will be required to make forensic decisions without the assistance of a solicitor, informed of the law and abreast of the evidence.
47 Such circumstances, in my opinion, substantially increase the likelihood of errors being made or important matters being overlooked by counsel - a risk that will not confront the prosecution. I am therefore of the view that in the circumstances as they are at present, the trial of the accused is likely to be unfair in the sense that it carries a risk of improper conviction.
48 I order that the further hearing of this trial be adjourned to a date to be fixed and that the trial not commence until counsel for the accused has the assistance of his instructing solicitor on a day to day basis for the duration of the trial.**
[3] R v Fuller [1997] SASC 6297; (1997) 69 SASR 251, 260. See also Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 365 per Gaudron J 'whatever the consequences and whatever the cost, it is for the courts to decide what is or is not fair in a criminal trial'; DPP v Kim, Unreported, Victorian Supreme Court, Eames J (21 August 1997), 8.
[5] At 335-36. See for example, R v Pirimona (1998) 7 Tas R 407.
[7] At 96. See also Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 at 243.
[8] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 ("Dietrich") at 297-98.
[10] At 311 per Mason CJ and McHugh; 331 per Deane J; 357 per Toohey J.
[11] Batistatos v RTA (NSW) [2006] HCA 27; (2006) 226 CLR 256, [7].
[12] Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370.
[18] [1997] SASC 6297; (1997) 69 SASR 251 at 257 and 259.
[19] At 365. This was adopted as the relevant test in Fuller [1997] SASC 6297; (1997) 69 SASR 251 at 257.
[20] D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [17].
[22] See for example R v Brown [2002] VSCA 207; (2002) 5 VR 463, [39].
[23] [1984] VicRp 67; (1984) VR 751, 769.
[24] Unreported, Victorian Supreme Court, Eames J (21 August 1997).
[27] See R v Phung [1999] VSCA 195 at [15].
[28] Unreported, Supreme Court of Victoria, McDonald J (5 December 1997).
[29] DPP v Kavanagh, Unreported, Supreme Court of Victoria, Mc Donald J (15 December 1997); Victoria Legal Aid v Beljajev and Ors [1999] 3 VR 764.
R
Chaouk [2013] VSC 48
(1992) 177 CLR 292
(1997) 69 SASR 251
(1998) 7 Tas R 407
(1980) 147 CLR 75
(2010) 241 CLR 237
(2006) 226 CLR 256
(1995) 37 NSWLR 370
(2005) 223 CLR 1
(2002) 5 VR 463
(1994) 33 NSWLR 172