R v P F G [2006] VSCA 130

1 The applicant was arraigned in the County Court and pleaded not guilty to a presentment containing seven counts of incest. At the conclusion of the trial the jury returned verdicts of not guilty on counts one to three and guilty on counts four to seven. After a plea, the applicant was sentenced to be imprisoned for a term of five years on each count. With a measure of cumulation, a total effective sentence of seven years and three months was produced. The sentencing judge ordered that the applicant serve a term of five years' imprisonment before he was to be eligible for parole.

2 The applicant now seeks leave to appeal against his conviction and sentence.

3 The offences were alleged to have been committed against the daughter of the de facto wife of the applicant. The offences were said to have occurred on various dates between 1 February 1998 and 31 July 2001, when the complainant was between the ages of 13 and 16 years and the applicant was aged between 50 and 53 years.

4 The applicant lived with his de facto wife and the complainant in a house at Robertson's Beach. Nearby was a holiday lodge with ten bedrooms. The applicant and his wife managed the lodge.

5 The principal Crown witness was the complainant, who gave evidence that soon after the family moved into the house at Robertson's Beach, when the complainant was about 11 years' old, the applicant would come into her bedroom at night, touch her back, the front of her chest and her genitals under her clothes. He did so a couple of times a week. (Uncharged.)

6 The complainant said that on an occasion in 1998, when she was helping the applicant with maintenance at the lodge, he told her to go into one of the rooms and lie on the mattress and wait for him. She said that she had to take off the bottom half of her clothing and lie on the mattress and wait for him to come. The applicant entered the room, mounted the complainant and put his penis into her vagina. She said it hurt a lot and seemed to last a long time. (Count 1.)

7 In January 1999 the applicant, the complainant and her two young cousins, who had come to stay at the applicant's house, went on a fishing trip in a small boat. The applicant and the complainant dropped the cousins off at a small island and then went on to the next island. The applicant took a tarpaulin and put it on the sand. He told the complainant to take off her clothes and lie down on it. He then got on top of the complainant and had intercourse with her. (Count 2.)

8 In October that year the applicant told the complainant to go into his bedroom, take off her clothes and get under the sheets. She obeyed. The applicant came into the room and had sexual intercourse with the complainant. (Count 3.)

9 On St Valentine's Day, 14 February 2001, the complainant was at home with the applicant. The applicant came into the complainant's bedroom, told her to take off her clothes and lie on the bed. The applicant also got on to the bed and had sexual intercourse with the complainant. (Count 4.)

10 In about the middle of that year the complainant went with the applicant to the lodge. In the dining room the applicant told her to take off the lower part of her clothes, lie on the coffee table and open her legs and place them around his back. He then inserted his penis into the complainant's vagina. On this occasion, as he often did, the applicant told the complainant that he was really sorry that he had done it and that it would never happen again. (Count 5.)

11 Again, in the middle of 2001, the complainant and the applicant went to the lodge. The applicant told the complainant to go into a room, take off her clothes, lie on the bed and wait for him. She did so. The applicant entered the room, got on top of the complainant and had sexual intercourse with her. Afterwards he was very apologetic. (Count 6.)

12 On abut 12 July 2002 the complainant and the applicant went to the lodge. Obeying the instructions of the applicant, the complainant went into the first aid room, removed the bottom part of her clothing and lay down on the bed in the room. The applicant also got on to the bed and had intercourse with the complainant. (Count 7.)

13 A cousin of the complainant gave evidence that he stayed at the applicant's house at Robertson's Beach. He went on a fishing trip with his brother, the complainant and the applicant. The witness and his brother were dropped off at one of the islands at the applicant's suggestion. The boat with the complainant and the applicant went to another island. The applicant and the complainant got out of the boat and walked out of sight. After an hour they returned and picked up the witness and his brother.

14 A social worker at the secondary school attended by the complainant said that on 21 June 2001 the complainant told her that she wanted to leave home. She said that she felt uncomfortable with her stepfather, particularly when they were alone. She said that the applicant made her do things which she didn't want to do. The complainant described an incident at the lodge when she had sexual intercourse with the applicant at his instruction. The complainant was very upset and said that it had been going on for years.

15 Members of the police force gave evidence of removing a futon mattress from the bedroom of the complainant in the house at Robertson's Beach. On 28 August 2001 semen found on the futon was subjected to DNA analysis. On 5 March 2002 an analysis was made by the same scientist of biological samples from the applicant. The DNA characteristics of the sample matched the DNA in the applicant's saliva. The chance of the semen coming from a person other than the applicant was one in 98 million.

16 A witness, who had known the applicant, his de facto wife and the complainant for some nine years, said that on the night of 23 July 2001 he heard a car in his driveway. He walked outside and saw the applicant get out of a police car. The police car left. The witness asked the applicant what the problem was. The applicant said that he had been kicked out of his house. He said: "They reckon I've fucked (the complainant) and I've got nowhere to go." After some minutes the applicant said: "Wayne, I did (the complainant)."

17 A woman, who described the applicant's son as "my other half", gave evidence that on 5 August 2001 the applicant came into her house. He was upset and she asked him what was wrong. The witness said that the applicant " ... came to me and told me how he had done it three times with (the complainant), but it was with her consent ... "

18 The final Crown witness said that he met the applicant through the applicant's son. On the second occasion on which the witness saw the applicant, in about July 2001, the latter said that he was being investigated by the police for molesting his daughter. The witness said:

"He started crying and he then said to me that he had had sex with her, he said that he had - he had ejaculated on her stomach and he said to me that it was there, what man wouldn't take it ... He said 'the sex was there, what man would not take it.'"

The witness said that the applicant told him that "the sex" had occurred quite frequently.

19 The applicant was interviewed by the police. He flatly denied any wrongdoing.

20 Although the applicant did not give evidence, his counsel called four witnesses.

21 The first witness, a medical practitioner, who had treated the applicant for 20 years, said that in 2000 or 2001 the applicant told him that he was having difficulty in having sex in the missionary position due to his girth.

22 The applicant's son gave evidence that in May or June 2001 he visited his father at Robertson's Beach. The son entered the house and went into the lounge room, where he saw his father lying on the futon which the complainant used as a bed, masturbating, thereby innocently explaining the DNA evidence led by the Crown.

23 The applicant's sister said that she observed a close affection between the applicant and the complainant. The complainant told her that she wanted to leave home because she was not allowed to go out.

24 The applicant's adopted daughter, who lived with the applicant from the age of three months, said that he was a good, strict father. He never entered the shower or her bedroom. His children were not allowed to walk around the house naked.

25 The evolution of the grounds of the applicant for leave to appeal against conviction demonstrates the repeated, careful scrutiny given to the trial transcript on behalf of the applicant. There were originally ten grounds of the application drawn by counsel other than counsel who appeared at the trial. The full statement of grounds subsequently filed reduced the grounds to eight. When the hearing of the appeal commenced, newly engaged counsel for the applicant abandoned five of the existing grounds and sought and was granted leave to add five new grounds.

26 A ground of the application which was argued in this Court was that the trial judge erred in failing to charge the jury as to the effect of prior inconsistent statements by witnesses.

27 In the course of his charge the trial judge gave instances of witnesses who had accepted in cross-examination that they had on a previous occasion given evidence which was inconsistent with the evidence which they gave at the trial. The trial judge also told the jury that if they were satisfied that a witness had on an earlier occasion given a version which was consistent with the evidence the witness gave at the trial, the jury might use that "as indicating a consistency on the part of the witness and if you so choose to think, enhancing his or her credibility as a witness." Counsel for the applicant on appeal complained that the trial judge failed to direct the jury that prior inconsistent statements could be used by the jury to assess the credibility and reliability of witnesses.

28 In his charge the trial judge told the jury that they could take into account whether the evidence of a witness was inconsistent with other evidence that they might have given or with the evidence of other witnesses and whether the discrepancies were crucial. He also gave detailed directions as to the use the jury might make of the inconsistent statements made by the witness whose diary entry was tendered in evidence. Finally, the trial judge directed the jury to scrutinise the complainant's evidence carefully. In our opinion the directions of the trial judge constituted an adequate explanation of the significance of prior inconsistent statements. We do not think that the trial judge was obliged to identify each inconsistent statement.

29 One of the new grounds was that the trial judge erred in failing to give directions, or adequate directions, in respect of the confessions alleged to have been made by the applicant.

30 Counsel for the applicant submitted that there were weaknesses in the Crown evidence of admissions. One witness appeared to concede that the applicant may only have been speaking of what was alleged. Another recorded in her diary what she thought the applicant said and in cross-examination conceded that the applicant could have been speaking of the accusation against him. Accordingly, so it was submitted, the trial judge was obliged to instruct the jury that they could not use the evidence as admissions unless they were satisfied that the applicant had made the admissions and they were true.

31 As Knox, C.J., Gavin Duffy, J. and Starke, J. said in Ross v. R.[1], speaking of confessional statements:

"There is no rule of law or of practice which requires a judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it."

Further, Barwick, C.J., Gibbs and Mason, JJ. said in Burns v. R.[2]:

"The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case."

32 The evidence said to constitute admissions in the present case was capable of corroborating the evidence of the complainant, even if it did not stand by itself as a full confession. A specific direction would have drawn the attention of the jury to the precise wording of the statements said to have been made by the applicant, and his counsel may have considered such a direction would work against his client's interests. At all events, he sought no such direction. It would appear that the jury did not misuse the evidence, for they acquitted the applicant on counts to which the statements related. We would not conclude that a miscarriage of justice resulted in the absence of the direction.

33 Another new ground was that the trial judge should have instructed the jury that, if they rejected the motive suggested by the applicant in his record of interview as to why the complainant should make false accusations of incest, they could not use the rejection to support the Crown case.

34 In the course of his record of interview the applicant was asked if he could offer any explanation why his stepdaughter should make false allegations against him. The explanation proffered by the applicant was his reaction to the complainant failing to keep her bedroom clean or tidy. The applicant said:

"I went right off me brain. My first wife kept that house absolutely spotless. My children won't bring their kids down to that house because it is absolutely filthy."

The applicant went on to say that he and his wife spent three days cleaning the room and said that he had a terrible row with the complainant. He said the row occurred the day before the police came to the house.

35 Counsel for the applicant relied upon a passage in a judgment by Hunt, C.J. at C.L. in R. v. Uhrig[3] which was cited with approval by the majority of the Court in Palmer v. R.[4] His Honour said, speaking of a motive to lie on the part of a Crown witness asserted by an accused:

"[I]n many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth."

36 Although Palmer v. R. was concerned with an accused who, when taxed with the question why should the complainant lie, was unable to suggest a reason, in our view the passage from R. v. Uhrig on which counsel now relies is to be viewed as a corollary to the rule that an accused ought not be cross-examined as to a complainant's motive to lie. The decision in Palmer v. R. was based upon the principle that the accused is under no obligation to explain why a complainant should lie, and the failure of an accused to do so has no effect, upon either the complainant's credibility or that of the accused. If the accused does suggest a motive to lie on the part of the complainant and the jury rejects that motive, there is potential for the jury to use that rejection in the same way as they might use an accused's failure to advance any motive to lie, namely, to conclude that the complainant's credibility is enhanced by the absence of a motive to lie.[5] In R. v. PLK[6] the accused in an incest trial in his record of interview suggested a motive on the part of the complainant to lie in making the allegations against him. The accused was not cross-examined about any motive to lie on the part of the complainant. During her address to the jury, the prosecutor dealt with the suggested motives to lie at some length. It was held that the trial judge erred in failing to give warning to the jury that rejection of a motive to lie attributed to the complainant by the defence did not render the complainant's evidence more credible.

37 We do not think that in every case in which the jury are asked to reject a specific motive to lie on the part of the complainant, the judge must give the jury a direction that rejection of the motive does not mean the complainant is telling the truth. In the present case, however, we consider such a direction was required. The prosecutor and counsel for the applicant in their addresses to the jury made the question whether the complainant had the motive to lie a significant issue. Accordingly, we think that there was a real danger that, if the jury rejected the motive to lie suggested by the applicant, they would regard the complainant as a witness with no motive to lie and whose credibility was thereby enhanced.

38 On more than one occasion in the course of his final address to the jury the prosecutor reminded the jury of the motive to lie on the part of the complainant advanced by the applicant in his record of interview, and contended that the suggested motive was false because the complainant had complained of the applicant's conduct to the social worker a month before the row about the state of the complainant's bedroom. For his part counsel for the applicant in his address to the jury countered the argument that had been described by the applicant in his record of interview. The absence of evidence by the applicant at the trial increased the importance of the record of interview. In the light of the importance which the evidence of motive played in the trial, in our view a firm and clear direction was called for, carrying the authority of a judge, to prevent a miscarriage of justice. Nowhere did his Honour give the jury any direction as to the manner in which they should deal with the motive suggested by the applicant and relied upon by his counsel.

39 The next ground was that the trial judge erred in his directions to the jury as to the evidence of complaint and, in particular, erred in his description of the use that could be made of that evidence. The evidence was that of the social worker, which we have recounted.

40 Counsel for the applicant submitted that the complainant said in her evidence that she had no intention of telling the social worker about sexual abuse, and only did so after several questions from the social worker suggesting that the complainant may have been sexually abused. On the other hand, the evidence elicited from the social worker was that she did not put any leading questions to the complainant. Counsel for the applicant also said that the prosecutor called the evidence, not for the purpose of buttressing the complainant's credibility, but rather for the purpose of rebutting the motive to lie on the part of the complainant suggested by the applicant in his record of interview, for the complaint was made before the incident relied upon by the applicant.

41 The complaint was made on 12 July 2001 and related to acts which occurred at about that time. In our view the evidence was capable of being treated as being made at the earliest available opportunity and was not the product of suggestion by the social worker.[7] The evidence was capable of being used by the jury to buttress the complainant's credit as a witness by demonstrating consistency. Accordingly, we think the trial judge was entitled to tell the jury that they could rely upon the evidence for that purpose, whether or not the prosecutor sought to make use of the evidence in the same fashion. In our view it is significant that no complaint was made by counsel for the applicant at the trial.

42 The next ground was that the trial judge erred in his directions to the jury by including in his description of uncharged acts the statement by the complainant to the social worker that "it had been going on for years."

43 The statement was, of course, hearsay. There was, however, admissible evidence to the same effect. The complainant said that not long after the family moved to Robertson's Beach the applicant would enter her bedroom at night and touch her breasts and genitals. She said that happened a couple of times a week. The complainant also said that the allegations she had made to others were true. In the light of that evidence, we do not consider that trial judge's slip occasioned any injustice to the applicant.

44 The final ground was that the trial judge failed to summarize the defence case. The trial judge did summarize the evidence led by the Crown, and in the course of doing so reminded the jury of the denials by the applicant in his record of interview. He did not, however, summarize the evidence of all the defence witnesses.

45 The defence case was that the acts alleged by the complainant did not take place. That was squarely put by the trial judge to the jury. The trial judge also reminded the jury of the evidence given by the applicant's son that the applicant had masturbated on the futon used by the complainant as a bed. In our view the evidence of the remaining defence witnesses was peripheral to the central issue in the trial, and the trial judge was not obliged to summarize that evidence. He did say to the jury that they were to consider all the evidence and not simply that evidence which he had referred to in the course of his charge, and said that the jury could be reminded of the evidence if the need arose. The jury in fact requested the judge to do so in respect of the evidence of two of the witnesses.

46 For the foregoing reasons we are of the opinion that the trial judge did err in failing to instruct the jury as to the manner in which they were to treat the motive of the complainant to lie, which was advanced by the applicant in his record of interview. Counsel for the respondent submitted that, if we arrived at that conclusion, nevertheless the appeal should be dismissed because no substantial miscarriage of justice actually occurred.[8]

47 The task we must undertake in determining whether the proviso applies is to make our own independent assessment of the evidence and decide whether, making due allowance for the fact that we are limited to proceeding on the record, the audio recording of the applicant's record of interview and two photographs of the applicant, the applicant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned their verdicts of guilty.[9]

48 The Crown case depended, to a significant degree, upon the testimony of the complainant. There was no other direct evidence of the commission of any of the counts. The evidence of confessions said to have been made by the applicant was capable of corroborating the evidence of the applicant, but it did not constitute evidence of the commission of any particular count. The DNA evidence was capable of corroborating the complainant's evidence with respect to count 4, although it was first necessary to evaluate the evidence of the applicant's son. The evidence of complaint made to the social worker was consistent with the complainant's evidence of the applicant's conduct in mid-2001. Some of the evidence as to confessions said to have been made by the applicant was attacked in the manner described in paragraph [30], above. On the other hand, the evidence of the final Crown witness described in paragraph [18], above, was unequivocal, striking and unshaken by cross-examination. The evidence of the complainant differed slightly from the evidence she gave at the committal. We do not think the differences were significant. Although he did not give evidence, the applicant denied each allegation of wrongdoing made to him in the course of his record of interview. His account of the surrounding circumstances was not shown to be false by any other evidence.

49 We are to have regard to the whole of the record of the trial, including the fact that the jury returned verdicts of guilty on four counts and acquitted the applicant on three counts. The acquittals are to be explained by the times at which the offences were alleged to have been committed. Counts 1 to 3 were alleged to have occurred between 1998 and 1999, count 4 was said to have occurred in February 2001 and counts 5 and 6 were said to have occurred in mid-2001. The trial judge instructed the jury that they could take the complaint made by the complainant to the social worker as bearing upon the complainant's credibility as to counts 5 and 6, but not as to counts 1 to 4, for the complaint was made too late to support the complainant's evidence as to the earlier offences. His Honour said that the jury could regard the absence of complaint of the offences the subject matter of counts 1 to 4 as inconsistent with the evidence given by the complainant as to those counts. He then said:

"When you come to evaluate the evidence of [the complainant] I suggest you seek other evidence that confirms or supports her evidence, because evidence from an independent source which tends to confirm her potentially unreliable memory about what happened years earlier may assist you in determining whether the crime has been committed and that it was the accused man who committed it."

The trial judge also told the jury that the DNA evidence corroborated the complainant's evidence only as to count 4 and that the evidence of confessions by the applicant did not corroborate the complainant's evidence as to any particular count.

50 It appears that the jury faithfully applied the directions given to them by the trial judge, for they acquitted the applicant on those counts in respect of which the complainant's evidence was not directly supported by independent evidence. Accordingly, we do not view the acquittals as detracting from the effect of the verdicts of guilty. Nor do we think that the trial judge's failure to direct the jury as to the complainant's motive to lie significantly detracts from the weight to be ascribed to those verdicts.

51 Having reviewed all the evidence and the record of the trial we are of the opinion that no substantial miscarriage of justice has actually occurred. We are satisfied beyond reasonable doubt that the applicant committed the offences the subject matter of the verdicts of guilty. The complainant's evidence was not challenged by any witnesses and was supported by evidence we view as cogent.

52 Turning to the application for leave to appeal against sentence, two of the grounds of the application were pursued. They were:

"1. The learned sentencing judge erred in failing to place sufficient weight on the medical evidence of the applicant.

2. In the circumstances the total and individual sentences and the non-parole period are manifestly excessive."

53 The applicant is now aged 58 years. He has 15 prior convictions from eight court appearances. Most of the convictions were for offences of dishonesty. The applicant was also convicted of street offences and, in 1968, carnal knowledge of a girl between the ages of 10 and 16 years, for which he received a good behaviour bond. The girl became the applicant's first wife.

54 The applicant worked in a briquette factory at Morwell when, in 1991, he suffered kidney disease which ended his working life. He has survived since then on a disability pension.

55 The applicant's health was central to the plea made on his behalf. The doctor who had treated him for more than 20 years reported to the Court that he suffered from chronic nephritis, an incurable kidney disease (which would eventually result in kidney failure), diabetes mellitus, hypertension, gastro oesophageal reflux disease and obesity. The applicant was a heavy smoker. The doctor said that the applicant "is at best a poor complier with taking medication and with following medical advice" and was of the opinion that the applicant would not achieve the average lifespan for males. He said that "I would suspect that his prognosis may well be a maximum of 10 years healthy life." He continued:

"If [the applicant] were to adopt a new lifestyle, that is, cease smoking, exercise regularly and pay meticulous attention to a low fat diet, he could well extend his lifespan.

In my opinion it is extremely unlikely that [the applicant] could achieve these aims in prison and in my opinion a prolonged period of imprisonment will shorten his life."

In November 2001 the applicant suffered a mild stroke and was committed to hospital. After three days he fully recovered. While in prison in December 2004 the applicant suffered vertigo which was diagnosed as a result of vestibular disturbance.

56 In the course of his sentencing remarks the sentencing judge said, with respect to the applicant's state of health:

"[T]he real question with which a sentencing judge must grapple is not whether the circumstances of the offender will make his or her incarceration more burdensome than that of a notional ordinary gaol inmate, but rather whether the circumstances of incarceration will impose a greater burden on that offender because of such person's state of health ...

What must be determined is whether the impact of the prison regime will be more burdensome upon a specific prisoner because of his or her particular disability. Thus I must determine whether the physical disabilities associated with your condition would be magnified by the normal consequences of imprisonment ...

I have concluded ... incarceration will not place upon you any greater imposition than that which you would be subjected to if you were living in your own residence."

57 While it is a mitigating factor that there is a significant risk that imprisonment may have an adverse effect upon an offender's health, it is also a mitigating factor that imprisonment will be significantly more burdensome for a prisoner than for a person in normal health. The impact of an offender's ill health upon the duration of a prison term was authoritatively stated by King, C.J. in R. v. Smith[10], who said:

"Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

58 In R. v. Van Boxtel[11] Callaway, J.A. said of that passage:

"It has always been recognised that the last sentence identifies two different ways in which ill health may be a factor mitigating punishment."

59 We have same difficulty understanding the distinction drawn by the sentencing judge between incarceration imposing a greater burden on an offender by reason of his ill health and the ill health of an offender rendering his or her incarceration more burdensome. It does appear that, in purporting to pose the correct and incorrect questions, his Honour was stating in different words the first alternative posed by King, C.J. At all events his Honour failed to address the question whether there was a serious risk of imprisonment having a gravely adverse effect on the applicant's health. In doing so we think he erred, for the evidence of his treating doctor was that imprisonment would hasten the applicant's death.

60 Accordingly, in our opinion, the sentencing discretion has been reopened.

61 The applicant could rely upon his health and age as mitigating factors. On the other hand, the crimes for which he was convicted were serious indeed. Children must be protected from sexual abuse by adults who are entrusted with their care. Incest often permanently scars its victims emotionally and psychologically. The offence also corrodes human relations. It is an attack upon the family and thus upon a singularly important social institution.

62 We are minded to impose no lesser head sentence upon the applicant than was imposed upon him at first instance, although we will impose a slightly shorter minimum term. The applicant is resentenced to a term of five years' imprisonment on each of counts 4, 5, 6 and 7. Nine months of the sentence imposed in respect of count 5 are to be served cumulatively on the sentence imposed in respect of count 4. Four years and three months of each of the terms of imprisonment imposed in respect of counts 6 and 7 are to be served concurrently with the sentence imposed on count 4. The total effective sentence is seven years and three months. We direct that the applicant is to serve a period of four years and six months before he is to be eligible for parole.

63 The applicant has been sentenced on counts 6 and 7 as a serious sexual offender pursuant to the provisions of Part 2A of the Sentencing Act 1991. In our opinion it is not necessary to impose a disproportionate sentence upon the applicant in order to adequately protect the community from the applicant.

[1] [1922] HCA 4; (1922) 30 C.L.R. 246 at 255.

[2] [1975] HCA 21; (1975) 132 C.L.R. 258 at 261.

[3] Unreported, Court of Criminal Appeal (NSW) 24 October 1996.

[4] [1998] HCA 2; (1998) 193 C.L.R. 1 at 10.

[5] Cf. R. v. Hilsey [1998] VSCA 143 at [24] per Ormiston, J.A.

[6] [1999] VSCA 194; [1999] 3 V.R. 567.

[7] See R. v. Freeman [1980] VicRp 1; [1980] V.R. 1.

[8] Section 568(1) of the Crimes Act 1958.

[9] Weiss v. R. [2005] HCA 81 at [41] per Gleeson, C.J., Gummow, Kirby, Hayne, Callinan and Heydon, JJ.

[10] (1987) 44 S.A.S.R. 587.

[11] [2005] VSCA 175; (2005) 11 V.R. 258 at 267.