AK v R [2024] NSWCCA 181

Catchwords: CRIMINAL PROCEDURE – conviction appeal – convictions of uncle for sexual abuse of young nephews – c omplaints by children to mother – delay in reporting to police – mother and father in acrimonious separation – court proceedings against father for domestic violence – challenge to mother’s credibility – failure to use evidence in domestic violence trial to challenge mother’s credibility in sexual abuse trial involving father’s brother – whether incompetence of trial counsel – whether trial unfair Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AK v R [2024] NSWCCA 181 Hearing dates: 13 September 2024 Date of orders: 27 September 2024 Decision date: 27 September 2024 Before: Basten AJA at [1]; Rothman J at [44]; N Adams J at [45] Decision: (1) Grant the applicant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL PROCEDURE – conviction appeal – convictions of uncle for sexual abuse of young nephews – c omplaints by children to mother – delay in reporting to police – mother and father in acrimonious separation – court proceedings against father for domestic violence – challenge to mother’s credibility – failure to use evidence in domestic violence trial to challenge mother’s credibility in sexual abuse trial involving father’s brother – whether incompetence of trial counsel – whether trial unfair Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1) Evidence Act 1995 (NSW), ss 38 , 91 Cases Cited: Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 R v Birks (1990) 19 NSWLR 677 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Category: Principal judgment Parties: AK (Applicant) Rex (Respondent) Representation: Counsel: G D Woods KC / T F Woods (Applicant) J Styles (Respondent) Solicitors: KPT Defence Lawyers (Applicant) C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/278775 Publication restriction: Statutory prohibition against publication of matter identifying, or likely to lead to the identification of, the children the subject of the sexual offence proceedings against the applicant Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2023] NSWDC 402 Date of Decision: 22 September 2023 Before: Fitzsimmons SC DCJ and jury File Number(s): 2020/00278775 JUDGMENT BASTEN AJA: In May 2023, the applicant was found guilty o f two counts of having sexual intercourse with a child then under the age of 10, one count of indecent assault on a child under the age of 16 and one count of attempted indecent assault o n a child under the age of 16. The child in relation to the three completed offences (counts 1, 2 and 4) was a nephew of the applicant, aged between 4 and 5 years at the time of the two offences of sexual intercourse and between 6 and 7 years at the time of the indecent assault. The attempted indecent assault was committed on another nephew, being the younger brother of the first victim. (The persons involved will be referred to by their relationship: there is a statutory non-publication order with respect to the identity of the children.) On 22 September 2023, the trial judge, Fitzsimmons SC DCJ, convicted the applicant on each of the charges on which he had been found guilty and imposed an aggregate sentence of imprisonment for four years , six months to date from 23 April 2023 with a non-parole period of two years , four months. By an appeal filed on 5 June 2024, the applicant challenged his convictions on the sole ground that the trial had “ miscarried because of counsel ’ s conduct of the defence ” . Each of the alleged offences of sexual intercourse , and the attempted indecent assault, occurred between April 2015 and November 2016; count 4 alleged an indecent assault between 31 December 2017 and 30 November 2018. The applicant was aged 16 or 17 years at the time of the first three counts, and 19 or 20 years at the time of count 4. The applicant ’ s older brother, who was the father of the children, was involved in an acrimonious separation from the mother (his wife) between April 2 019 when they separate d and June 2020 when the mother reported to the police complaints by her children of the misconduct of the applicant. The applicant ’ s defence was that, in the course of a heated dispute between the father and the mother in March 2020 over a property, the mother had said, “ if you don ’ t stop pursuing this property, I ’ m going to say that your brother molested the kids , and I ’ m going to put – and I ’ m going to put you out for domestic violence ” . Her report to the police three months later was said to be undertaken in carrying out the threat in relation to her husband ’ s brother, namely the applicant. On one view, it would have been open to the jury to accept that the conversation took place and, even if it did not, to accept that the timing of the report to police was a function of the acrimonious dispute between the mother and father. However, what was less readily explained was the motive to make an untrue complaint in relation to the applicant and, if the complaint were concocted by the mother, the unusual details of the complaints involving the two young boys. F or the challenge to the mother ’ s evidence to raise a reasonable doubt in the minds of the jury as to the offending conduct of the applicant , the credibility of the mother was , inevitably, a f ocal point of the trial. However, the complainants also gave evidence of the assaults on them and denied they had been told to lie to police. The subject of the appeal was the failure of the applicant ’ s counsel at trial to use material adverse to the mother ’ s credibility derived from an entirely separate set of proceedings in the Local Court and the District Court dealing with charges laid by the mother against the father for common assault in 2014 , and intimidation and assault occasioning actual bodily harm in 2016 . The later charges were not unrelated to those made against the applicant ; the y alleged that the father threatened his wife and punch ed her in the face after she had told him that his brother (the applicant) had sexually assaulted one of the boys. There were two aspects of this separate proceeding which were sought to be relied on as material which should have been used by trial counsel for the applicant in challenging the mother ’ s credibility. The first involved evidence given by the mother in the course of a summary hearing in the Local Court, which resulted in the father being acquitted of the charge as to the 2014 assault, but convicted of the 2016 charges of intimidat ion and assault occasioning actual bodily harm. It was not the outcome in the Local Court, but part of the evidence given by the mother during cross-examination which was sought to be relied upon. Secondly, the applicant sought to rely upon material derived from a District Court appeal brought by the father, which ended in his acquittal o f the 2016 charges. Four preliminary points should be noted . First, counsel for the applicant accepted that he required leave to appeal as the single ground relied upon did not involve a question of law alone. [1] Secondly, counsel for the applicant accepted that his counsel at trial could not have relied upon the findings as to the credibility of the mother made in the Local Court or the District Court, nor the decision of the District Court to dismiss the 2016 charges. As counsel correctly noted, evidence of those matters w as inadmissible at trial pursuant to s 91 of the Evidence Act 1995 (NSW). The reasons in both the Local Court and the District Court were included in the material sought to be tendered in this Court, but were to be treated as “ submissions ” , said to demonstrate how the credibility issue might have been seen by a jury. Thir dly, b oth the applicant and the Director prepared evidence for the purposes of the appeal. Each affidavit sought to annex some 460 pages of material from the Local Court proceedings, being primarily the transcript of the hearing. (Both provided single-sided copies of the material.) However, for the purposes of the hearing, only the affidavit of the solicitor for the Director of Public Prosecutions was read. As was self-eviden t from the nature of the exercise, the vast bulk of the transcript was irrelevant. The Court agreed to admit so much of the material as was referred to in submissions. That material is identified in a schedule to this judgment. The content of the material will be addressed below. Two other items were admitted as relevant to the dispute between the father and mother. The first was a letter dated 7 February 2020 addressed to the father, by his family law solicitors. It identified the issue as to the property settlement which was then outstanding. Secondly, the Court admitted a parenting plan signed by the father and the mother on 11 March 2020, which gave some context and content to the dispute concerning custody arrangements. In addition to that material, the Director relied upon the affidavit by the solicitor appearing for the applicant at the trial, identifying the steps he had taken in preparing for the trial, and an affidavit by counsel who appeared for the applicant at the trial. Again, the details of that material will be referred to below. Fourth ly, it is necessary to identify the legal principles by which a challenge to the conduct of counsel for the accused at a trial may constitute a ground of appeal challenging a conviction. That exercise should be assayed before addressing the factual issues raised by the appeal. Legal principles relating to conduct of counsel There have been a number of cases in which questions of appellate review on the ground of incompetence of trial counsel have been discussed. It is sufficient in this Court to refer to three. First, in R v Birks [2] Gleeson CJ stated: “As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.” The Chief Justice continued , a fter referring to authorities supporting the last proposition: [3] “There is an evident tension between those principles, on the one hand, and on the other hand, the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice. It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise. The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice.” Further, Gleeson CJ summaris ed the relevant principles in the following terms: [4] “1. A Court of Criminal Appeal has a power and duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as a result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible , and undesirable , to attempt to define such cases with precision. When they arise they will attract appellate intervention.” The second case, TKWJ v The Queen [5] involved a failure by counsel to call evidence of good character of the accused, where the charges related to sexual offences against the son and daughter of a woman with whom the accused was living. A failure to call evidence favourable to the accused is not necessarily the same as failing to cross-examin e a prosecution witness: for example, in the case of a failure to adduce evidence, it may be relatively easy to establish what would have been said had a particular course been taken, whereas a failure to cross-examine will not necessarily lead to any clear conclusion, a factor which may be important in determining whether there has been a miscarriage of justice. In TKWJ , Gaudron J (with whom Gummow J agreed) observ ed that an inquiry into whether there has been a miscarriage of justice raises a question as to “ whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage ” . [6] Gaudron J continued: “27 One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.” To similar effect, Hayne J (with whom Gummow J also agreed) stated: “107 No less importantly, however, it follows from the characteristics of a criminal trial which I have identified that, when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?” Despite these comments, there are cases in which the hypothetical consideration of counsel ’ s conduct has been qualified by allowing evidence to be called as to whether counsel in fact considered the relevant issue, and if so, had a reason for adopting the course in fact taken. Such evidence was called in the present case, without objection. The third case is Nudd v The Queen . [7] The question of the objective nature of the exercise was revisited by Gleeson CJ in Nudd in the following passage: [8] “To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the i nquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel.” In a further prescient observation, Gleeson CJ stated: [9] “Nowadays, when most criminal trials and appeals are funded by legal aid, appellants are often represented by counsel who did not appear at the trial. By hypothesis, trial counsel lost; an appellant supported by legal aid will often want new counsel to conduct the appeal. The client may well be dissatisfied with the performance of trial counsel. Appeal counsel will have his or own ideas about the way the defence case should have been conducted. Inevitably, in some cases, trial counsel will be blamed for failure. Such blame is pointless unless it can be related to a legal rubric of relevance to the jurisdiction being exercised by the court of criminal appeal. The relevant rubric is miscarriage of justice.” Despite the further warnings against avoiding a ‘ trial of counsel ’ , it is convenient to set out the evidence of those representing the applicant at trial: their affidavits were read without objection and without the deponents being called for cross-examination. Fresh evidence – trial lawyers T he trial solicitor for the applicant stated that the applicant was committed for trial at Parramatta District Court on 14 April 2022. The solicitor acted for him throughout the period from his committal to the end of the trial. The trial date of 1 May 2023 was fixed 11 months in advance , on 3 June 2022. On 29 July 2022, the solicitor briefed the first counsel. Due to the continuation of another trial, the first counsel was un available on 1 May 20 2 3 and there was an application to vacate the hearing date, which was refused. On Monday, 24 April 2023, trial counsel was briefed. An electronic copy of the brief was sent to him on that day. The trial solicitor was aware of the proceedings involving the father which w ere before the District Court on 10 February 2023. On 24 April 2023, he brief ed trial counsel with the tender bundle for the District Court appeal, includ ing the Local Court transcript and exhibits. The solicitor stated that he had discussions with trial counsel on Monday 24 April and again on Friday 28 April. He stated in his affidavit: [10] “These discussions included, but were not limited to, the significance of the District Court appeal proceedings of 23 February 2023, issues surrounding a family property dispute and the credibility of the mother of the child complainants in our Trial matter.” Finally, the solicitor note d that the trial did not commence on Monday 1 May, but the following day, and that he and trial counsel conferred with the applicant at the District Court on the Monday , discussing the same matters as had earlier been discussed between the lawyers. Trial counsel gave evidence that he was aware of the findings made by the District Court judge with respect to the mother , and that she had admitted in the Local Court on 27 May 2021 that she had told a “ lie ” . He referred to the evidence she gave in the Local Court which may have been relevant to her credibility and the risks which might attend opening up such a line of cross-examination. For reasons explained below, the evidence given provided a rational explanation for the course taken, which would have been apparent without his evidence to that effect . The primary information of significance from the lawyers ’ affidavits was the pretrial history. Despite the late change in counsel, there was no submission that trial counsel did not have a sufficient opportunity to prepare for the trial, nor is that apparent from the limited evidence as to the steps taken in the week before the trial. That matter may be put to one side. Matter not used in cross-examination The evidence in the Local Court matter was taken over six days between 28 April 2021 and 6 July 2022. The magistrate delivered her judgment on 29 July 2022. The mother ’ s evidence and cross-examination commenced on 28 April 2021, but the relevant evidence was given on 27 May 2021, commencing when the mother was cross-examined about a visit by a police officer on 12 June 2020 to premises on Bobin Road, Sadleir. There were two aspects of the cross-examination relied upon by counsel on the appeal. The first related to an issue as to whether the mother had assaulted the father. The following cross-examination took place: [11] “Q. Were you aware as at 12 June 2020 [that] my client had made police reports about you and your family? A. Yes, that I recall that the police came to my house stating that [the father] had taken the police – taken the kids to the police and they’ve said that my brother hit my son, and – which was false. Q. Is that when the police had advised you of that when they came to your - - A. I don’t remember the – that day exactly when it was, but I do recall them coming and reporting that. And they came and they seen the kids and made sure everything was okay and he made 100% sure that my brother did not hit him; he hit himself in to the rubbish bin. Yeah. So he’s pretty much just teaching the kids to lie and make fake reports to the police. … Q. Do you accept that my client was raising concerns about family violence emanating from your family prior to you going in to the police and making this complaint? A. Yeah, I was aware that he was making fake reports. Yes, I did.” The mother went to the police to make her own complaint about domestic violence and about the conduct of the applicant with regard to the children on 30 June 2020. She was asked: [12] “Q. Then what made you scared as at 30 June 2020? Were you scared on 30 June 2020? A. I was scared that he was manipulating the kids and I was scared and I was crying because the kids were going through enough stress and anxiety. I couldn’t handle from them going to see their dad anymore. That’s what I was scared of . I was scared of – for my kids’ safety. [The question was repeated.] A. Well, as of that day that I did go and report, my son told me so many new things that I was scared of . I was scared that my kids a re going to – he’s going to manipulate my kids, and that’s what I was scared of . So I – yes, I went and reported everything. I wasn’t going to let him get away with doing that anymore.” The Court was also taken to further evidence along the same lines, although it was not the subject of complaint in the written submissions that it had not been put to the mother during the trial, nor was it clear what it was suggested should have been put. The second topic related to the property at Bobin Road, Sadleir. The cross-examination commenced with the following passage: [13] “Q. Do you recall that at the time of the discussions of the parenting plan that you also discussed some property? There was some - - A. No. Q. - discussions – there was no discussion regarding property? A. No. There was none. Q. Were you aware that [the father] lodged a caveat over the property that you were trying to sell? A. I didn’t sell. It’s in my parents’ name. Q. Isn’t it in your name? A. No. Q. At the time that you were separating, wasn’t it in your name? A. No. Q. Are you sure about that? A. Yep. Q. No property was in your name at that time? A. My – it’s in my parents’ name. Q. At the time that you were separating. I’m not asking now, just so it’s clear so there’s no confusion. A. No. Q. I’m putting it to you that you said words to the effect of, this is in February to May of 2020, you said words to the effect of to [the father], ‘if you don’t stop what you’re doing’, referring to lodging of the caveat over that property, ‘I’m going to say that your brother molested our kids’. A. No.” The mother was then shown a land transfer document and further questions were asked: [14] “Q. Do you accept that as at October 2020 you were the owner of a property? A. Me and my brother? Q. Yes. A. Yes. Q. Do you accept that in your earlier evidence you denied that? A. Because there was no – there was no – we didn’t need to talk about it, so why do I need to talk about it? Q. I asked you a specific question. You answered ‘no’. You denied that you owned any property as at the time of separation. … Q. Do you accept that you lied previously when you said that you did not own any property as at the time of separation? A. I just have to check my notes and check when I was – when I was given the divorce. So as of the separation, no, I still owned it, yes. Q. So you accept that what you said earlier in your evidence was a lie? … Q. Do you accept that when I asked you whether you owned any property as at the time of separation with [the father], that you said ‘no’? Do you accept that you said that? A. Yeah, I said ‘no’. Q. Do you accept that now, upon reviewing of that document, that you accept that you were, in fact, an owner of a property as at the time of your separation with [the father]? A. Look, it was in my name, but I didn’t live at the property and I didn’t make any payments for this house. So no – yes, sorry, I did lie.” Almost immediately thereafter, in re-examination , the following exchange took place: [15] “Q. You were originally asked a question in regard to whether you owned any property at the time of separation. You said ‘no’. A. Yes. Q. You were asked a second question after reviewing a document of transfer. You were asked a question whether you lied or not in your previous response. My question to you is, can you explain what is it that you mean by ‘lied’? A. So it wasn’t - so this whole property thing wasn’t relevant for this case, so why did I need to speak – say I did own one? Like, I really didn’t own – I owned it by name, but I didn’t even live in the house. I never did and I never made payments for the house. Yeah. Q. When my friend first asked you the original question about whether you owned any property at the time of separation and you said ‘no’, when you – A. Yes. Q. -- answer ed that question, was it your intention to mislead the Court or give false evidence? A. No. Definitely not.” Four points are immediately evident from this material. First, the word “ lie ” came first from the cross-examiner, and was repeated by him. Secondly, there was a real sense in which the mother was not the owner, although the registered title included her name and that of her brother. Thirdly, the explanation given (without objection) in re-examination , if accepted, eviscerated any opprobrium which might have affected her credibility. Fourthly, her con ce ssion that she “ lied ” might have been seen by a jury as, if not supportive of her credibility, at least as neutral. As counsel for the applicant submitted, the District Court judge who heard the appeal from the father ’ s convictions took an adverse view as to the credibility of the mother, based on the “ lie ” as to the ownership of the property. It was noted that the judge described her evidence in re-examination as “ disingenuous ” . However, t hat show ed no more than that two judicial officers had taken different views of the mother ’ s credibility. One saw the mother give evidence, the other did not. Whether counsel sought to challenge the mother ’ s credibility before a jury on the basis of that evidence, in circumstances where she would, no doubt, have had every opportunity to repeat, and perhaps improve on, her explanation, raised a question of forensic tactics, with no obvious answer. It was undoubtedly open to trial counsel to decide not to challenge the mother ’ s credibility on that basis. In written submissions prepared before the lawyers ’ evidence was served, counsel for the applicant described the approach taken at the applicant ’ s trial as “ inexplicable ” and stated that it was “ incumbent upon counsel properly to address the matter in evidence and submissions ” . [16] Those comments were not persuasive, even without reference to the trial lawyers ’ evidence. Separately, there was a one-line allegation, not developed in the written submissions, that counsel also “ did not elicit evidence from [the father] denying that he had been violent towards his wife ” . [17] The issue of domestic violence was a tangential question. The mother gave evidence of having reported domestic violen ce to the police. The jury may have inferred that there had been court proceedings but in circumstances where the outcome could not be given in evidence, the attempt to challenge the mother ’ s credibility on the basis of such a complaint would have invited a retrial of the domestic violence allegations. Their relevance would have been peripheral and a distraction from the applicant ’ s primary defence. That disputed domestic violence allegations between husband and wife may affect the credibility of one or both may be accepted. However, even if the mother ’ s credibility were adversely affected in relation to that matter, the connection between that matter and her allegations with respect to the applicant and the young children, remained obscure. It may be, as the applicant suggested, that counsel asked one question too many of the father when he elicited from him that he had been charged with domestic violence offences , without being able to ad duce evidence as to the outcome. That does not demonstrate that the trial was unfair. It may be observed that the jury may have thought that a cloud hung over the father ’ s evidence before them in any event, as he had been questioned twice by the prosecutor, with leave of the court, as an unfavourable witness. [18] Conclusions The applicant failed to establish that, by not challeng ing the credibility of the mother on the basis of evidence given in the Local Court in proceedings against the father, there was a miscarriage of justice at the applicant ’ s trial. An objective assessment of the evidence relied upon for this purpose readily demonstrates reasons why trial counsel took the approach that he did. To the extent that it is relevant, counsel ’ s affidavit evidence supported that analysis. Further, the affidavit evidence of the trial solicitor corroborated the consideration given to the issues before the trial, both in consultation with counsel and in conference with counsel and the applicant. To the extent that it was submitted that trial counsel had failed to elicit evidence from the father denying any domestic violence towards the mother, no adequate attention was given to the way the evidence was presented at trial, the risks attending a reagitation of the domestic violence proceedings and the possibility, if not the likelihood, that the father would make a poor impression on the jury. In the se circumstances, there is no basis to uphold the submission that there was a miscarriage of justice. The Court should make the following orders: Grant the applicant leave to appeal. Dismiss the appeal. ROTHMAN J: I have had the advantage of reading the draft reasons of Basten AJA and I cannot add to its eloquent and concise statement of the principles to be applied nor any other comments. I agree with those reasons and with the orders his Honour proposes. N ADAMS J: I agree with the orders proposed by Basten AJA for the reasons provided by his Honour. ********** SCHEDULE OF ADMITTED EVIDENCE Local Court transcript 27.05.21, pp 45-61 Endnotes 1. Criminal Appeal Act 1912 (NSW), s 5(1). 2. (1990) 19 NSWLR 677 at 683G. 3. Birks at 684E. 4. Birks at 650D-E. 5. (2002) 212 CLR 124; [2002] HCA 46. 6. TKWJ at [25]. 7. (2006) 80 ALJR 614; [2006] HCA 9. 8. Nudd at [10]. 9. Nudd at [12]. 10. Affidavit, Ivan Bertoia, 20 August 2024, par 12. 11. Tcpt, 270521, p 49(32). 12. Tcpt, p 52(20). 13. Tcpt, p 56(15). 14. Tcpt, p 60(35). 15. Tcpt, p 62(45). 16. Written submissions, 2 June 2024, par 103. 17. Written submissions, par 106. 18. See Evidence Act 1995 (NSW), s 38. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2024