ST v Regina

King v The Queen [1986] HCA 59; 161 CLR 423 Spies v the Queen [2000] HCA 43; 201 CLR 603 Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317 Regina v Pedrana [2001] NSWCCA 66; 123 A Crim R 1 Andrews v The Queen [1968] HCA 84; 126 CLR 198 Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627 CASES CITED : Peacock v The King [1911] HCA 66; 13 CLR 619 The Queen v Taufahema [2007] HCA 11; 228 CLR 232 Everett v The Queen [1994] HCA 49; 181 CLR 295 Longman v The Queen [1989] HCA 60; 168 CLR 79 TJ v R [2009] NSWCCA 257 TK v R [2009] NSWCCA 151 R v RND [1999] NSWCCA 122

COUNSEL: J Girdham - Crown A Francis - Applicant

SOLICITORS: S Kavanagh - Crown S O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2007/8427

BASTEN JA HOWIE J HISLOP J

WEDNESDAY 10 FEBRUARY 2010 ST v REGINA Judgment 1 BASTEN JA: The appeal in this matter was allowed at the hearing before this Court last November and the Court indicated its intention to quash the appellant's convictions. The Court reserved its reasons and also reserved the question as to what further order should be made. I agree that the orders should be those proposed by Howie J. 2 Pursuant to s 6 of the Criminal Appeal Act 1912 (NSW), the Court, if it allows an appeal against conviction, "shall … quash the conviction and direct a judgment and verdict of acquittal to be entered": s 6(2). That obligation is, however, subject to "the special provisions of this Act". Section 7 of the Act refers to the powers of the Court "in special cases". That section provides power for the Court, for example, to substitute a verdict: s 7(2). It is clearly a "special provision". 3 Section 8 of the Criminal Appeal Act provides: " 8 Power of court to grant new trial (1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make." 4 The formulation of these various provisions reflects more of the history of the development of criminal appeals than an attempt to provide an orderly statement of the jurisdiction of the Court and its powers. Nevertheless, it has been accepted that s 8 is a "special provision" for the purposes of s 6, and that a new trial is appropriately ordered on the application of the Director. 5 In King v The Queen [1986] HCA 59; 161 CLR 423, Murphy J, dissenting, stated that a new trial "should only be ordered where it would more adequately remedy the miscarriage of justice than any other order the court is empowered to make" and that the "onus rests squarely on the prosecution to show the court that a new trial is the most appropriate remedy": at 426. Dawson J noted that the section laid down the conditions for its own application and that it conferred a broad discretion: at 433. 6 The approach of Murphy J has not been followed. For example, in Spies v The Queen [2000] HCA 43; 201 CLR 603 a new trial was ordered despite the fact that the appellant had already served the sentence for the particular offence and that it was "unthinkable" that, if convicted, he would receive any additional punishment. The joint judgment (Gaudron, McHugh, Gummow and Hayne JJ) stated: "[103] … That being so, it seems prima facie oppressive to put the appellant to the expense and worry of another trial which, on the evidence of the previous trial, is likely to take about ten days. On the other hand, the case against the appellant … seems a strong one. If this Court were now to refuse to order a new trial of that charge, the appellant would be acquitted of all charges. In addition, members of the commercial community as well as the general public have a vital interest in ensuring that directors who abuse their office and breach the criminal or company law do not escape conviction." [104] Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge. In the present case, given the competing considerations, it cannot be said that the interests of justice require that the appellant be acquitted …. That being so, it is a matter for the prosecuting authority to determine whether in all the circumstances there should be a further trial …." 7 One question raised by these provisions is whether this Court is limited to the alternative of directing an acquittal or ordering a new trial. An intermediate possibility may be to quash a conviction and leave it to the Director of Public Prosecutions to determine whether to place the appellant before a jury for a second trial. Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317 appears to be authority for the proposition that such a course was available and that this Court need not direct a verdict of acquittal in circumstances where it was inappropriate to order a new trial. 8 However, this Court has explained a number of cases, including Fowler (see below) in the High Court, where an appeal was allowed and a conviction quashed, but no new trial ordered or verdict of acquittal directed, as involving in each case an "oversight": Regina v Pedrana [2001] NSWCCA 66; 123 A Crim R 1 at [71]-[77] (Ipp AJA, Wood CJ at CL and Simpson J agreeing). 9 It is well-established that a new trial should not be ordered if the evidence presented to the jury on the first trial was inadequate to support a conviction: Andrews v The Queen [1968] HCA 84; 126 CLR 198 at 211; Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627 at 630. 10 Where the evidence satisfies the test of sufficiency, the discretionary power to grant a new trial is properly engaged. As explained by O'Connor J in Peacock v The King [1911] HCA 66; 13 CLR 619 at 675: "In exercising the discretion given by the Statute the interests, not only of the prisoner, but of the efficient administration of justice ought to be considered, always providing that no injustice is done to the accused. In this case there was … ample evidence to justify a verdict of guilty, if the jury thought fit to come to that finding on the evidence. If it were not for the misdirection as to the prisoner's statement, the verdict of the jury could not in my opinion have been disturbed." 11 A similar approach was adopted by the High Court in Fowler at 630. That course should be applied in the present circumstances. For the reasons given by Howie J, there was evidence which would, absent the misdirection, have entitled the jury to convict. 12 The power being properly engaged, it is necessary to consider whether other factors militate for or against such an order. First, although there has been a significant lapse of time since the offences were committed, that did not render the initial trial unfair to the appellant and similarly would not preclude him properly being put before a second jury. 13 Secondly, by the time of his release on bail, the appellant had served a little more than 18 months of his sentence and had a little less than a year to serve of his non-parole period on count 1. The sentence on count 3 was cumulative by a period of six months and he had, accordingly, served a little over a year of the non-parole period of two years, six months imposed with respect to count 3. In each case there remained a balance of term of two years which, in relation to count 3 would have expired on 22 April 2013. 14 The fact that a significant part of the sentence on each count has been served is a factor weighing against the order of a retrial: see The Queen v Taufahema [2007] HCA 11; 228 CLR 232 at [55] (Gummow, Hayne, Heydon and Crennan JJ). However, as explained in Spies, even completion of the sentence is not conclusive against an order for a new trial. 15 Thirdly, the first trial was brief, the evidence being completed within two days, and any retrial may be expected to be of similar duration. 16 Fourthly, in some circumstances it may be relevant to inquire as to whether the error at the first trial was one for which the prosecution was responsible: Taufahema at [51]. Although there was debate between the trial judge and counsel as to the legal requirements relating to jury directions, this is not a case in which responsibility for error should be apportioned or treated as significant. There is a material difference between the circumstance which arises where the prosecution has deliberately presented a case on an erroneous basis and one where a legal question has been wrongly decided, resulting in a misdirection. In the former case, as Taufahema illustrates, there is a real risk that the Director is seeking a retrial in order to run a different case, in itself a highly relevant factor. 17 Fifthly, it has been treated as a relevant consideration militating against an order for a retrial that the appellant has been released from custody following a successful appeal: Taufahema at [55], referring to Everett v The Queen [1994] HCA 49; 181 CLR 295 at 302, although the Court was there dealing with a discretionary decision to grant leave to the prosecution to appeal against inadequacy of sentence. It is doubtful whether this factor is entitled to great weight, although it might be an element of potential prejudice to the appellant in having to face the stress and ordeal of a second trial. 18 Finally, it should be noted that the transitional provision of the Criminal Procedure Act 1986 (NSW), discussed by Howie J, will have the effect that the direction required by Longman v The Queen [1989] HCA 60; 168 CLR 79 would operate in a new trial, as it should have operated in the first trial.

Conclusion 19 An order for a new trial under s 8 is supported by the following factors:

(a) the case presented at the first trial was one on which a jury, properly instructed, could reasonably convict on each count; (b) there is no suggestion that the evidential basis for the prosecution would be different in any significant respect at a new trial. (c) the administration of justice favours the resolution of the charge at a properly conducted trial; (d) it would not be unfair, in a general sense, to put the appellant on his trial again; (e) the first trial was completed within three days. 20 The following factors militate against such an order:

(a) there has been a significant lapse of time since the offences were committed in 1999/2000;

(b) the appellant has served a significant part of his mandatory custodial sentence, namely approximately one-half of the accumulated non-parole periods;

(c) the appellant was released from custody on the convictions being quashed;

(d) there will be a degree of stress and uncertainty caused by an order for a new trial. 21 The factor weighing most heavily against such an order is the fact of a significant portion of the sentence having being served. However, the effect of a further period of conditional liberty, could, if a further trial resulted in fresh convictions, properly be taken into account by the sentencing judge. Overall the public interest in ensuring that complaints of sexual abuse on a young boy, committed by a member of the family, at least on one occasion acting in a position of trust as a babysitter, should be resolved in accordance with the due process of law should be allowed to prevail. Furthermore, in the present case the appellant resisted the Director's application for a new trial purely on the basis that the verdict was unreasonable. Accordingly, the order for a new trial should be made. 22 An order for a retrial, perhaps anomalously, does not mean that a further trial will necessarily take place. The decision to put the appellant on trial a second time ultimately rests with the Director of Public Prosecutions: see Spies, above at [6]. 23 HOWIE J: The appellant was convicted after trial by jury of two counts of having sexual intercourse with a child under the age of ten years contrary to s 66A of the Crimes Act 1900. He has appealed against those convictions. The appeal was heard on 13 November last and the Court indicated that the appeal would be allowed and the convictions quashed. However the Court made no other orders and reserved its decision. The issue to be resolved was whether the Court should order a retrial or enter a verdict of acquittal consequent upon quashing the convictions. The appellant was subsequently granted bail. 24 The offences were alleged to have been committed on two separate occasions, about 2 months apart, between 1 September 1999 and 1 March 2000 when the complainant, M.M. was aged 5 or 6 years. The appellant was a juvenile at the time of the alleged offences, being 16 or 17 years. No complaint was made about the alleged sexual abuse until 2006 and the complainant made an interview with police on 19 May 2006. The trial commenced on 29 April 2008 when the complainant was aged 14. The jury returned guilty verdicts on 1 May 2008. The appellant was sentenced to a term of imprisonment on 8 August 2008 and remained in custody until he was granted bail following the hearing of the appeal. There was no application to appeal against the sentences imposed. 25 There were a number or grounds of appeal filed but only two have to be resolved. The second ground of appeal asserted in effect that the trial judge failed to give the jury a Longman direction as a result of the delay between the date of the commission of the alleged offences and the complaint to police, a period of over 6 years. The fifth ground of appeal is that a miscarriage of justice occurred because "the jury ought to have entertained a reasonable doubt". It was accepted by both parties that, if the Court upheld the second ground of appeal, the only other ground that needed to be addressed was the fifth ground. 26 The Court indicated at the hearing of the appeal that it would uphold the second ground of appeal and counsel then addressed the Court on the fifth ground. The reasons for upholding the second ground of appeal can be briefly stated and ultimately the Crown all but conceded that the ground should succeed. The Crown case 27 The Crown case presented at the trial can be summarised very briefly. The complainant was the son of the appellant's half brother. The jury had played to them a recording of the interview conducted between a police officer and the complainant on 19 May 2006. In the interview the complainant asserted that the first offence occurred while the appellant was babysitting him and his brother while his parents were in Bathurst. The complainant said that he was in kindergarten at the time and his teachers were Mrs Briddle and Miss Moyo. The incident occurred during school holidays. In cross-examination he said that it took place in winter and during a weekday, as his mother went to Bathurst on Thursdays. 28 The complainant stated that the incident occurred in the bathroom of the appellant's flat in Dart St, Oberon. He was washing his hands when the appellant entered the bathroom, grabbed him on the arms and forced him to the ground. The appellant then pulled down the complainant's pants and inserted his penis into his anus. The complainant said he was on his stomach and felt something like a "stick going up him". He could hear the appellant breathing. When he got up from the floor, he saw the appellant's penis and it looked "red and normal" and big. 29 The complainant said that while the incident was occurring his brother came to the door and asked whether the complainant was all right. The appellant said, "He's okay. He's just having a little pain". Although the brother was called to give evidence at the trial he could not recall any incident occurring. There was evidence that he had learning difficulties and trouble with his memory. 30 The complainant said that after the incident his anus hurt and he felt pain. He could see that his buttocks were red. He did not tell anybody about the incident because he was afraid. The appellant had told him, "Its our little secret". He also told him not to tell anybody and that, if he told his mother or father, they would not believe him. The complainant said as a result he felt alone and sad. 31 The complainant alleged that the second offence occurred at his home in Bligh Street, Oberon in the same year as the first incident. In cross-examination he said the incidents occurred a month or two apart but he was not certain of this. He was playing in his bedroom and a number of family members and relatives were in the lounge room. The appellant entered the room and said, "Lay on the floor for me again". The appellant then pulled down the complainant's pants and inserted his penis into his anus. The complainant said that it hurt and it felt like there was some "really, really sharp thing". Although he did not see the appellant's penis, he remembered how it felt on the first occasion. 32 The complainant repeatedly asked the appellant to stop, but he said that "it will be over in a second". He also said that the pain would not last long. The appellant was moving up and down and the complainant could hear his breathing. When the appellant stopped, he told the complainant to remember it was "our little secret". The complainant said that he cried and his father asked him what was the matter. He said that he had fallen over. 33 The complainant explained that he had not told his parents because he did not know that what the appellant had done was wrong. He saw a television programme which was about people getting raped and he knew then that what the appellant had done was wrong. He told his parents about a year after seeing the programme. 34 The complainant's mother gave evidence that the tenancy of the Bligh Street premises commenced in September 1998. The appellant came to live there some time in 1999. Her husband moved into premises in Dart Street in September 1999 because he was a shift worker. The appellant moved into those premises in January or February 2000 but would come to visit at Blight Street. At times the complainant and his brother would sleep over at Dart Street. 35 She said that the complainant told her in 2006 that the appellant had raped him. He told her that it happened when he was sleeping at Dart Street and the appellant had come into help him in the bathroom. He told the complainant to lie on the floor and put his "his thingy" in his bum. 36 A letter from the principal of the school at which the complainant had attended indicated that the complainant commenced kindergarten on 1 February 2000. Ms Biddle gave evidence that she taught the complainant in the first three terms and that Ms Moyo taught him in fourth term. She said that complainant was a well-behaved child and she did not notice any change in his conduct in 2000. The defence case 37 The appellant gave evidence. He said that in 2000 he was living in the flat in Dart Street. There were times when the complainant and his brother were left there while their parents were away in Bathurst. He denied ever indecently assaulting the complainant. He denied that the boys ever slept over and said they were there for at the most three hours. He denied ever helping the complainant to use the toilet because "it's not the right thing to do".

Grounds of Appeal Failure to give a Longman warning 38 This ground of appeal relies upon a decision of this Court given after the hearing of the trial but before the hearing of the appeal. In TJ v R [2009] NSWCCA 257, this Court was concerned to determine what law operated at the date of the trial of that appellant with respect to the necessity or otherwise of giving a Longman warning. This is a warning to be given to the jury where there has been extensive delay between the date of the alleged offence and the date of the trial. The necessity for a warning and its contents was derived from the decision of the High Court in Longman v The Queen [1989] HCA 60; 168 CLR 79. It is unnecessary for the determination of this ground of appeal to consider in detail that decision or the plethora of cases in this Court concerning the warning. They were reviewed in TJ v R. It was necessary in that case to determine whether the warning given at the trial complied with what the High Court held to be the appropriate warning about the prejudice suffered by an accused where there had been lengthy delay between the alleged offence and the commencement of criminal proceedings. 39 In the present case no Longman warning was given of any kind. This was because the Judge believed, incorrectly as it now appears, that the law was governed by s 294 of the Criminal Procedure Act as it had been amended in January 2007 before the date of the trial. 40 The history of the section is set out in TJ v R and does not need to be repeated in detail here. The section originally was concerned with what the a trial judge should say to the jury where there was evidence that there had been no complaint or a delay in complaint about the conduct that gave rise to the charge before the jury. However, in January 2007 the section was amended by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 to address the circumstances in which a Longman warning should be given and what its contents should be. In effect the section, as amended, required the trial judge to make a determination whether the period of delay was such that the accused had suffered a "significant forensic disadvantage" before warning the jury about the effects of delay. Subsection (5) of s 294 stated:

The mere passage of time is not in itself to be regarded as establishing a significant forensic disadvantage. 41 The Judge raised with defence counsel prior to the summing up the terms of the section as it then appeared and noted that there had to be evidence that the accused had suffered "significant forensic disadvantage" and that there was no "presumed prejudice". He was of the view that there was no evidence that the accused had suffered a "significant forensic disadvantage". He, therefore, concluded that, although the delay was significant, "it doesn't seem to me that it requires a Longman style direction given s 294". 42 In TJ v R this Court was chiefly concerned with interpreting the transitional provision that applied to the amendments that came into operation on 1 January 2007. The relevant provisions stated:

(1) The amendments made by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 do not extend to any proceedings commenced before the commencement of the amendments and any such proceedings may continue as if that Act had not been enacted." 43 The Court unanimously held that the amendments did not apply where the accused was charged with the offence prior to 1 January 2007 even if the trial commenced after that date: see per McClelland CJ at CL at [21] to [23]. The other members of the Court agreed with the Chief Judge on this interpretation of the transitional provision. 44 Therefore, applying TJ v R, as the present appellant was charged with the offences prior to 1 January 2007, the amended section did not apply to his trial and a Longman direction was required in accordance with the decided cases. 45 The Judge in the present case, in accordance with his previous ruling, said nothing by way of warning, comment or direction to the jury about the effects of delay upon the ability of the appellant to defend himself. The only warning he gave the jury was what has become known as the Murray warning. This is a standard direction given in addition to a Longman warning and in no way addresses the matters with which the Longman warning is concerned. It focuses the jury's attention on the importance of the complainant as the sole witness of the allegations in the Crown case whereas the Longman warning draws the jury's attention to the disadvantages suffered by the accused in meeting the allegations made by the complainant because of the delay before the commencement of proceedings. There was nothing in the summing up that touched upon that issue. 46 The appellant raised a number of matters that were said to be particular forensic difficulties faced by him due to the delay. The solicitor appearing at the trial raised none of these matters in an attempt to persuade the judge that there had been a "significant forensic disadvantage". Rule 4 may have been relevant had his Honour been correct in determining that the section applied. But in my opinion the trial miscarried because his Honour, by reason of his erroneous view of the applicability of the section, made no attempt to raise the issue of delay to the jury's attention and point to the difficulties it caused, or may have caused, the appellant in meeting the Crown case. Presumed prejudice by reason of the delay would have warranted the Longman warning. 47 It was for these reasons that I reached the conclusion that the ground was made out and that the convictions would have to be set aside. Unreasonable verdict 48 The approach that this Court takes to a ground asserting that the verdict of the jury was unreasonable has been settled by a number of decisions in both the High Court and this Court. This Court most recently considered the various authorities in TK v R [2009] NSWCCA 151. The question is whether this Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. If this Court experiences a doubt about the guilt of the appellant, after taking into account what advantage the jury had in seeing both the complainant and the appellant give evidence, then that is a doubt that the jury ought to have held. 49 The trial was a short one and the evidence was in a very narrow compass. In deciding whether it was open to the jury to convict the appellant or whether this Court has a doubt about the appellant's guilt, it is necessary to take into account both that there was no evidence in the Crown case to support the allegations made by the complainant. We also must take into account, even though the jury were not required to do so, the prejudice to the appellant arising from the delay of six years before any complaint was made. 50 In considering the reliability of the complainant the Court was asked to take into account an argument that had given rise to the first ground of appeal filed for the appellant. The ground alleged that the date specified in the indictment should have been of the essence. There was no such submission at the trial but it is argued that the complainant was proved by the evidence to be fundamentally unreliable in his assertion of when the offences took place and therefore the jury should have had a doubt about the appellant's guilt. 51 The indictment alleged that both of the offences occurred between 1 September 1999 and 1 March 2000. The complainant was never specific about when the offences occurred, which is unsurprising given his age at the time and the delay before complaint. However, he thought they occurred about 2 months apart but was uncertain of this. 52 In his interview with police the complainant said that he thought he was aged 5 or 6 "because he was living in the flats when I was about that age". He said he was in kindergarten. He believed it was in school holidays because he was not at school. He said it was on a Thursday because that was when his mother went to Bathurst. He said, during cross-examination, that he thought it occurred in winter. 53 The contention is that, when all the evidence is considered together, the incidents occurred in the latter part of 2000, this was because the complaint though it occurred in winter when he was in kindergarten but on holidays. Yet the indictment indicated a period up to March 2000. However, the complainant's mother thought that the appellant had left Dart St in January or February 2000. The appellant accepted that in 2000 he was living in Dart St and the complainant's father was staying there as well. He thought he was there for about 3 or 6 months. He also accepted that the complainant and his brother visited those premises when their parents were in Bathurst but denied they slept over. It was common ground that the appellant visited the Bligh St premises after leaving Dart St. It seems plain that, if the incidents occurred, the first of them took place while the appellant was living at Dart St. The evidence seems to be that he left there in early 2000, at the latest in February. 54 It is unnecessary strictly to determine whether the Judge should have told the jury that the time in the indictment was of the essence. But I do not believe that it was. The jury could well find that the incidents occurred in 2000, by reason of the complainant's association of the incidents with when he was in kindergarten. Yet on all the evidence the appellant had left those premises by March 2000. Clearly the complainant was in error in that he thought they occurred in winter, because by winter of 2000 the appellant was not living in Dart St. Again it was open to the jury to conclude that he was mistaken that the first incident occurred while he was on holidays, that is after he had commenced kindergarten, because he did not start kindergarten until February 2000. He thought it happened while he was on holidays because he was not at school and yet it took place on a Thursday when his mother went to Bathurst. 55 In my opinion there was nothing about the way the trial was conducted that required the jury to find that both the offences occurred within the time specified in the indictment. There was no forensic issue that overcame the general rule that the date specified in the indictment is not an element of the offence: R v RND [1999] NSWCCA 122. It was well open to the jury to conclude that the first incident occurred within the period in the indictment but the second incident occurred after that date. The fact that the complainant was in kindergarten established the year as 2000 but it did not mean that he had actually commenced kindergarten when the first incident occurred. It was open to the jury to find that the complainant was mistaken as to the fact that he was actually in kindergarten at the time and that the evidence was consistent with the incident having taken place shortly before he actually started attending. 56 The second incident seems to have taken place after the appellant had left Dart St and, even though this might have been a date outside the time specified in the indictment, it did not follow that the Crown case failed for that reason alone. 57 Nor do I find that this question about when the incidents occurred destroys the reliability of the complainant to such a degree that the jury should have rejected his evidence. Apart from the issue of whether the complainant and his brother slept over in Dart St, there was no dispute that the circumstances surrounding the two incidents could have occurred. The complainant's mother supported his account that he and his brother slept over in Dart St contrary to the evidence of the appellant. 58 I take into account the fact that the complainant's allegations were unsupported by evidence of his family members or the presence of injuries. I also take into account the delay in complaint generally and in particular after he saw the television programme. I accept that the delay caused the appellant forensic prejudice in defending the allegations particularly because of the vagueness of the complainant as to exactly when it was that each incident occurred. Yet unlike the jury I have not had the advantage of hearing the complainant in his interview with investigating police or in his evidence. Of course the jury also saw and heard the appellant give evidence. 59 I am not persuaded from a consideration of the whole of the evidence that the jury should have had a reasonable doubt about the general reliability of the complainant. There was no such inconsistency in his account to police or his evidence or what he told his mother about the allegations that I am left with a doubt about the general truthfulness and accuracy of his account of the incidents. Just from reading the transcript of the evidence I have a sense that the complainant was giving an honest and accurate account of the events and his sensations at the time. 60 I propose that the appeal be allowed, the convictions quashed and that there be a retrial of the counts in the indictment. 61 HISLOP J: I agree with Howie J. **********

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