AFP & Anor v Cochrane [2008] QMC 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: AFP & Anor v Cochrane [2008] QMC 1 PARTIES: AUSTRALIAN FEDERAL POLICE (applicant/ prosecution) COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (applicant) v JUSTIN WADE COCHRANE (respondent/ defendant) FILE NO/S: MAG164449/07(6) DIVISION: Magistrates Court PROCEEDING: Charge ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 14 March 2008 DELIVERED AT: Brisbane HEARING DATE: 27 February 2008 MAGISTRATE: Previtera T ORDER: Decline to order production by the Commonwealth Director of Public Prosecutions of the documents. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PRODUCTION OF SUMMONED DOCUMENTS – does legal professional privilege apply to the Commonwealth Director of Public Prosecutions COUNSEL: Power appeared for the applicant/ prosecution J M Horton appeared for the applicant Cuthbert appeared for the respondent/ defendant SOLICITORS: Australian Government Solicitor for applicant The applicant appeared on their own behalf Cavanagh Lawyers for defendant [1] In this matter, the Commonwealth Director of Public Prosecutions (CDPP) seeks to resist the production of certain documents in its possession, sought pursuant to a -- 1 of 12 -- 2 summons issued at the direction of the defendant’s solicitors on the 18th February 2008. [2] Production of the documents is resisted by the CDPP on the grounds of;- 1. lack of relevance; 2. lack of any legitimate forensic purpose to be served from them; and 3. legal professional privilege. [3] The background to the matter is as follows:- [4] 1. The defendant is contesting a charge that on or about the 18 th of August, 2007 at Brisbane he entered an air-side area of a security controlled airport contrary to Regulation 3.17(2) of the Aviation Transport Security Regulations 2005. [5] 2. The prosecuting legal officer Ms. Tkackzyk confirmed to defence Counsel Ms. Cuthbert on 13th February 2008 that all Crown material had been disclosed. A summary hearing commenced on the 14th of February 2008. [6] 3. During cross examination of the first Crown witness Ian Rossall (a Customs Officer at Brisbane International Airport in Air-Border Security) it was revealed that a supplementary statement of Mr. Rossall, dated 18th January 2008 and signed during a conference on 13 th February 2008, had not been disclosed. (The CDPP had indicated to the defence on 16th January 2008 that a second statement of Mr. Rossall providing further details in relation to the precise location of the defendant at the time of the offence, would be provided; but was not). [7] 4. This second statement did indeed contain a specific indication by Mr. Rossall, in metres, of the defendant’s location relative to the main fence of the airside security zone; in comparison to the vague description in the earlier disclosed statement dated 18th August 2007. [8] 5. The live issue in the hearing is the location of “the actual perimeters of the security area”1 of the Brisbane Airport, “there being a number of fences at different points and angles on the bridge over Boggy Creek, the banks of the creek and the land adjacent to the banks.”2 [9] 6. A licensed surveyor, Mr. Bruce Hallett, was contracted by Brisbane Airport Corporation (BAC) on 17 th January 2008 to conduct a survey of the area and provide a statement. He will be called as a Crown witness. [10] 7. The defence expressed concern that it appeared that the supplementary statement of Rossall came about only following the availability of Mr. Hallett’s survey results. The defence then argued that had Mr Rossall’s supplementary statement been supplied earlier, summonses would have been issued relevant to the engagement of Mr. Hallett, the delivery of Hallett’s advice relative to the taking of Mr. Rossall’s supplementary statement; and other circumstances surrounding the generation of the supplementary statement (including the notes of any witness conferences). 1 Defence submissions. 2 Defence submissions. -- 2 of 12 -- 3 [11] 8. Consequently, Mr. Rossall was stood down from further cross-examination and the defence made an application for a permanent stay of the proceedings on the basis of an abuse of process by the CDPP. That application was heard and dismissed by this court on the same day, with recorded reasons; and the matter was adjourned to enable the issue of the summonses indicated by the defence. One of those summonses was directed to the CDPP and is the subject of this determination. [12] 9. The documents to which production is resisted by the CDPP are those contained in paragraph 2 of the summons, which seeks production of - all records, including file notes, memoranda, conference notes and notes of telephone conversations between;- (i) officers of the Australian Federal Police (AFP) and officers of the CDPP; (ii) crown witnesses (Luke English, Jan French, Ian Rossall, Bruce Hallett, Gary Gately) and officers of the CDPP; and (iii) officers and employees of BAC and officers of the CDPP. [13] 9. A number of documents within those categories within the CDPP file were disclosed by the CDPP to the defence under cover of a letter dated 15th February 2008 and some are annexed to the affidavit of Deborah May Kilroy, the defendant’s solicitor, sworn 27th February 2008. The defence has highlighted the contents of a number of email communications in support of its argument that the CDPP cannot resist production of the balance of the CDPP file. These documents include:- [14] A. Email communications from BAC surveyor Gary Buchanan (who is not being called as a Crown witness) to Mr. Bruce Hallett. In an email on 15 th January 2008 Mr. Buchanan, states “here is a brief overview of what I had done and I’ve attached the few plans I have in that area” …I went and relocated the fence in the area of concern… in order to confirm our as con info…which appears to be ok. Both south and north of the creek the fence appears to be inside the boundary by approx 0.5m. Where the boundary crosses the creek the fence deviates to the side of the bridge bringing it approx 3.1m outside the boundary.”3 [15] B. Email communications from prosecuting legal officer Tkaczyk to AFP investigating officer Stephen Moore (who is not being called as a Crown witness), including “Legal-in-Confidence” emails. In an email on 15th January 20084 Ms. Tkaczyk states “…I have just phoned Greg Gately (Security and Emergency Planning Manager for Brisbane Airport Corporation Pty Ltd and Crown witness) and asked him whether he is able to give the evidence we discussed that we still need to get in.. Gary the surveyor…determined the main fence is some 0.5 metres inside the boundary and the fence at the bridge is some 3.6 metres outside the boundary. Greg has offered to speak with a Registered Surveyor and obtain a statement setting out this evidence for court”; [16] C. Email communications from Stephen Moore to; (i) Bruce Hallett. By email dated 31st January 2008 Stephen Moore attaches photos “.. that might help set the scene..”5 , although a file notation by Greg Gately indicated a site inspection with Hallett on 21st January 2008. 3 Annexure DMK 4 to Affidavit of Deborah May Kilroy at P.03 4 Annexure DMK 4 to Affidavit of Deborah May Kilroy at P.10 5 Annexure DMK 4 to Affidavit of Deborah May Kilroy at P.15 -- 3 of 12 -- 4 (Hallett’s statement dated 1st February 2008 indicates “My survey revealed that the fence on the bridge was 3.14m outside the Brisbane Airport Corporation Boundary, and the main fenceline was about 0.5m inside the boundary. I have drawn a plan(copy attached) showing these measurements)”; (ii) Gary Goldsworthy. By email dated 17 th January 2008,6 Stephen Moore, in referring to Ms. Tkaczyk states “She doesn’t know whether all or just one Customs officer is required. I tried to tell her that maybe Ian Rossall can give the same evidence as Luke but he hasn’t as yet confirmed the same details”. (In an email from Ian Rossall to Ms. Tkaczyk on 18 th January 20087, however, Mr. Rossall makes it clear to Ms. Tkaczyk that his “view is different to the view Officer English had as I was in the back seat behind the driver.”) [17] 10. The defence also highlight, in support of their argument that the CDPP produce their file, that, despite verbal confirmation from Ms. Tkaczyk on 13th February and 14th February 2008 that there was no outstanding material to be supplied to defence: defence was notified under cover of the letter dated 15 February 2008 that, in the course of conferencing another Crown witness Jan French (Customs Officer present with Officers English and Rossall when the defendant was observed) on 12th February 2008, “she volunteered for the first time a description in metres of the defendant’s location in relation to the bridge. She said that she saw the defendant approximately 8 metres from the Boggy Creek bridge.” Notes of the witness conference with Ms. French were provided with a promise to provide an addendum statement as soon as possible,8 which statement has since been provided. [18] The defence argue that, in light of the above matters; the lack of a statement from the investigating AFP officer Stephen Moore, and in the absence of the production of the complete CDPP file, the defendant will be unable to explore: the role of the Director’s Office and Ms. Tkacyzk in the investigation; how the prosecution came into being; who undertook the investigations; how, when and why the supplementary statements of Rossall and French came into existence; who was responsible for taking the supplementary statements; how, when and why Bruce Hallett was engaged; the involvement of the investigating officer Stephen Moore and the involvement of Greg Buchanan. [19] In further arguing that the claim for legal professional privilege does not exist to defeat the production of the CDPP file, the defence submit that:- (i) The CDPP has strayed outside its proper functions, which are prosecutorial, by conducting the investigation by evidence gathering. (ii) In any event, the partial compliance by way of production of certain documents by the CDPP constitutes a waiver by the CDPP of the privilege in relation to the undisclosed portion of its file. 6 Annexure DMK 4 of Affidavit of Deborah May Kilroy at P.30 7 Annexure DMK 4 of Affidavit of Deborah May Kilroy at P.31 -- 4 of 12 -- 5 [20] The CDPP has provided written submissions in relation to the issues and they are the subject of court record. This court also heard oral submissions by each party on 27th February 2008. Prosecution Policy of Disclosure [21] The court accepts, as stated in the written CDPP Statement of Prosecution Disclosure provided to this court, that, in relation to summary matters where a defendant has pleaded not guilty, the CDPP should provide: (i) copies of any written statements by persons whom the prosecution intends to call to give evidence at the hearing. If the prosecution intends to call a person who has not made a written statement, the defence should be so advised; and (ii) reasonable access to inspect proposed exhibits and, where it is practicable to do so, photocopies or photographs of such exhibits. [22] There is no suggestion that the prosecution has not complied with this policy. [23] The CDPP Statement of Prosecution Disclosure also requires that any unused material be supplied to the defence, being all information relevant to the charge/s against the defendant which has been gathered in the course of the investigation and which: (a) the prosecution does not intend to rely on as part of its case, and (b) either runs counter to the prosecution case (i.e. points away from the defendant having committed the offence) or might reasonably be expected to assist the defendant in advancing a defence, including material which is in the possession of a third party (i.e. a person or body other than the investigating agency or the prosecution. [24] This court has been provided with the complete CDPP file as well as the bundle of those parts of it which have been disclosed to the defence. The court has had an opportunity to privately inspect the complete CDPP file, in accordance with common practice,9 in order to resolve the claim for privilege. Statutory functions of the CDPP [25] S 6(1)(e) of the Act permits the Director to “carry on proceedings for the summary conviction of persons in respect of offences against the laws of the Commonwealth (whether or not instituted by the Director)”. [26] It is not disputed that, in prosecuting this matter, commenced by the AFP, the CDPP is acting within its statutory functions pursuant to S 6(1)(e) of the Act. 8 Annexure DMK 5 of Affidavit of Deborah May Kilroy at B1 9 R v. Mokbel 2005 VSC 410 at paragraph 21. -- 5 of 12 -- 6 [27] S.6 (1) (n) of the Act then permits the director “to do anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (m), (b) and in subsection (2)”. [28] In relation to the scope of conduct permitted by the CDPP and its officers pursuant to s 6(1)(n), it was held in Health Insurance Commission v. Freeman10 that the giving of legal advice to a Commonwealth authority, both before or after it becomes a party to a proceeding is within the scope of conduct of the CDPP provided that there is some nexus between the investigation being conducted by the authority and a statutory function of the Director of Public Prosecutions11. [29] His Honour Merkel J stated "… it would seem to be incidental or conducive to the DPP's function of prosecuting, carrying on or taking over proceedings, including considering prosecuting, carrying on or taking over proceedings, to give legal advice to any Commonwealth authorities or agencies involved in the investigation of matters which are likely to be the subject of such proceedings, irrespective of whether the proceedings are prospective, imminent or actual… it would clearly be "conducive" to the better fulfilment of the prosecutorial functions of the DPP, for advice to be given to an investigative agency to ensure evidential material being gathered by it for the purpose of a prosecution which is intended to be carried on by the DPP, is being gathered lawfully.12 [30] In Grofam Pty Ltd v Australian New Zealand Banking Group Limited13 the Court said14 “having regards to the functions of the DPP, it would be usual and expected for legal advice to be given in aid of those functions to an authority of the Commonwealth…” [31] Even in circumstances where proceedings had not yet been instituted, His Honour Heerey J stated that it was incidental or conducive to the performance of the DPP’s function to give advice sought by the AFP and the ATO as to whether to institute proceedings “since they were engaged in an investigation of a kind which was necessary, or at least likely to be of assistance, for any such future proceedings.” [32] This court is satisfied that, by reason of the Director actually “carrying on” the proceedings against the defendant, as instituted by the AFP, and providing advice to the AFP in relation to the gathering of evidence, there is a nexus between the investigation and the Director’s functions. [33] In any event, s 13 of the Act provides that “Where the Director: 10 158 ALR 544 11 158 ALR 267 at272 12 At 282. 13 1993 117 ALR 669 14 Page 676 -- 6 of 12 -- 7 (a) is considering instituting, taking over or carrying on, or has instituted or taken over, or is carrying on, a prosecution for an offence against a law of the Commonwealth; and (b) is of the opinion that a matter connected with, or arising out of, the offence requires further investigation; (c) the Director may… request the Commissioner of Police of the Australian Federal Police for the assistance of the Commissioner, Deputy Commissioner of AFP employees in the investigation of that matter, and where the Director so requests, the Commissioner shall, so far as practicable, comply with the request.” The Doctrine of Legal Professional Privilege [34] Legal professional privilege applies to confidential communications, whether oral or written15, which pass between a legal adviser and his/her client; which are brought into existence for the dominant purpose of the giving or obtaining of legal advice in connection with anticipated or existing litigation,16 and which are referable to the relationship of legal adviser and client.17 The rationale of the doctrine [35] The rationale for the existence of the privilege was stated in Grant and Downs18, as follows:- (i) “The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisors, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision. None the less there are powerful considerations which suggest that the privilege should be confined within strict limits.”19 (ii) In Carter v. Managing Partner Northmore Hale Davy and Leake20 it was stated “That fundamental principle is now so well entrenched in the common 15 Baker v. Campbell (1983) 153 CLR 52 16 AWB Ltd v. Cole & Anor (2006) FCA 571 17 Attorney-General (NT) v. Kearney (1985) 158 CLR 500. 18 (1976) 135 CLR 674. 19 Per Stephen, Mason and Murphy JJ at page 685. 20 1995 183 CLR 121 -- 7 of 12 -- 8 law of this country that it should not be overturned or significantly curtailed by the Courts… in the absence of compelling legal consideration, any curtailment of the operation of the privilege is for the Legislature, not the Courts.”21 The CDPP and its salaried officers [36] It has been established that the doctrine of legal professional privilege applies as between communications between the officers of the CDPP and the Director. His Honour Martin J in R. v. Bunting & Others22 stated “.. subject to the impact of the duty of disclosure, I am unable to discern any reason in principle why, in appropriate circumstances, the necessary confidential relationship could not exist between the Director and DPP practitioners thereby giving rise to privileged relationships. For example, in my view advice by a DPP practitioner to the Director concerning the likelihood of a conviction resulting from a prosecution would be privileged”. [37] In Bunting23 the accused issued subpoenas directed to the Commissioner of Police and the Director of Public Prosecutions in relation to communications between the Commissioner of Police and the DPP; all documents and notes of communications between the DPP or DPP practitioners and a witness or the witness’ legal advisers; communications between the DPP or DPP practitioners and investigating police officers and notes made by DPP practitioners of communications with prosecutions witnesses during proofing sessions. The communications were made with the dominant purpose of the giving or obtaining of legal advice in connection with anticipated or existing litigation; or were between the Director or DPP practitioners and third parties with a view to obtaining advice to be used in the litigation. The AFP and Crown witnesses [38] It has also been established in R v. Dainer; ex parte Pullen24that the CDPP is able to claim legal professional privilege in relation to communications with it. In that case, the communications the subject of the claim for privilege were witness statements obtained by police investigators and provided to the Police Legal Branch and then the CDPP which continued the prosecution. As stated therein “..the Director is the legal adviser of the Australian Federal Police when that police force institutes criminal proceedings which it may expect the Director to carry on in due course in the exercise of powers and functions under the Act. …the Director is acting in the exercise of his functions as a prosecutor and as a statutory officer of the Crown who is required to be legally qualified and is therefore necessarily the legal adviser of the Crown…”25. 21 Per Deane J 22 (2002) SASC 412 23 2002 SASC 412 24 (1988) 78 ACTR 25 at 33 per Kelly J. 25 Ibid at page 33. See also R v. Bunting & Others (2002) SASC 412 per Martin J -- 8 of 12 -- 9 [39] His Honour Justice Kelly added “it seems to me that there must in ordinary circumstances be a chain of communication between police officers conducting an investigation and the Director of Public Prosecutions. As a matter of common sense it must I think be the case that any statements prepared during the course of such an investigation would eventually come into the hands of the officer responsible for the conduct of the investigation, that the brief should when that officer passes it on, be checked by a legal section within the Australian Federal Police and that finally it should come into the hands of the director”. Third Parties – the Brisbane Airport Corporation and its employees [40] His Honour Martin J in R. v. Bunting & Others26 has held that appropriate communications between a DPP practitioner acting on behalf of the Director and a third party would also attract the privilege.” His Honour Lockhart J in Trade Practices Commission v. Sterling27 earlier propounded this view provided that the communications and documents passing between the legal officer and a third party were made or prepared when litigation is anticipation or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence28”. [41] This court is satisfied, therefore, that each of the three (3) categories of communications within paragraph 2 of the summons to the CDPP falls clearly within one or other of the above-mentioned categories of communications; that all of the communications were for the dominant purpose of giving/obtaining legal advice for the prosecution case; and consequently each category of communications attracts the operation of the doctrine of legal professional privilege. Exceptions to the privilege [42] The defence argue that a recognised category of exception to the upholding of the privilege is the public interest in ensuring that there is no abuse of power and it is accepted by this court, as was stated in Attorney-General (NT) v. Kearney29that ”…there is force in the argument that legal professional privilege should, as a matter of policy, give way in any case, particularly a criminal case, in which a conclusion is reached that the consideration favouring the disclosure of privileged material in the particular circumstances of the particular case out weigh the considerations favouring the preservations of confidentiality. A possible answer to that argument may be that the cases in which the privilege significantly impedes the ascertainment of the truth are so exceptional that they do not justify its curtailment.”30 26 (2002) SASC 412 27 (1978) 36 FLR 244 at 246 28 Submissions of Crown prosecutor. 29 1985 158 CLR 500 30 Ditto Per Deane J -- 9 of 12 -- 10 [43] In Attorney-General (NT) v. Kearney31 a majority of the Court32 held that communications between officers of the Northern Territory Government and the Government’s legal advisors for the purpose of obtaining and giving legal advice relating to the making of Regulations were not the subject of legal professional privilege. Essentially the reason for refusing the privilege was because the Northern Land Council had established a prima-facie claim that the communications came into being as part of a scheme to defeat Aboriginal land claims; and that it was contrary to the public interest and the better administration of justice to allow the privilege to be used to protect the communications made to further a deliberate abuse of statutory power, and by that abuse to prevent others from exercising their rights under the law. [44] His Honour Justice Wilson stated “I think it is wholly insistent with the reason for the privilege that it should protect a government’s deliberate abuse of its statutory powers. In this regard, the exception for fraud should be understood … it includes all forms of dishonesty, including trickery and sham contrivances.” In the same case Mason J stated “notwithstanding strong judicial assertions of the value of the public interests said to be promoted by the privilege – for the most part assertions made a century ago - … it is by no means self evident that the value of this public interest is greater than the public interest in facilitating the availability of all relevant materials for production in litigious disputes”. [45] Examples given in Kearney of where the balance may be tipped against the privilege included matrimonial proceedings in which a person has taken a child into hiding against compliance with a Court order; or where a party refuses to disclose a medical report unfavourable to them but necessary to determine the best interests of the child, or where disclosure of police informant material is necessary to show a person’s innocence. [46] In Carter, Deane J referred to communications occurring for the purpose of crime or abuse of statutory powers33 as “exclusions from the reach of legal professional privilege rather than exceptions to the scope of the protection which it affords.”“ [47] There is however, no admissible evidence to which the defence can point to suggest that there has been anything more in this case than sloppy preparation by the Crown and insufficient attention to the provision to the defence, within a timely fashion, of witness statements, including addendum witness statements. Whether they are exceptions to or exclusions from the reach of legal professional privilege, there is certainly no admissible evidence in this case of dishonesty, trickery, sham, illegal purpose or abuse of process on the part of the CDPP, the AFT, the BAC or any Crown witnesses. Those matters in relation to which the defence has expressed concern can practically, be the subject of cross-examination of the witnesses 31 1985 158CLR500 32 Gibbs CJ, Mason, Wilson and Brennan JJ 33 R v. Bunting & Others (2002) SASC at page 19 -- 10 of 12 -- 11 Rossall, French, Hallett and Gately. Documents as have already been disclosed to the defence indicate the intention to take a further statement from Rossall, prior to either the engagement of Hallett or Hallett’s inspection of the area. The communications by Buchanan to Hallett indicate no influence brought to bear on Hallett, given Hallett’s survey findings. An inspection of the CDPP file indicates nothing to the contrary. Waiver [48] It has been held in Waterford v. Commonwealth34that if the communications are properly the subject of legal professional privilege, which has not been waived35, a person/entity cannot be compelled to produce them pursuant to a subpoena issued on behalf of an accused person in criminal proceedings even though they may establish the innocence of the accused or may materially assist his defence36. [49] In relation to waiver, Gleeson CJ, Gaudron, Gummow and Callinan JJ in a joint judgment in Mann v Carnell37 identified that it is inconsistency between the conduct of the client entitled to the benefit of the privilege and the maintenance of the confidentiality that forms the basis of waiver which is imputed by operation of law at the point of the inconsistency. [50] As stated by His Honour Martin J in Bunting, when referring to the decision in Goldberg v Ng38 “Underlying the relevance of the conduct is the concept that, in view of the conduct of the client, it would be unfair for the client to maintain the privilege”.39 [51] In Goldberg and Ng40, the Court held that there had been an imputed waiver because the information had been disclosed voluntarily in circumstances where it could have been withheld or where the society could have used cohesive powers to require its production. The solicitor agreed to provide the Law Society, which was investigating a client complaint, with legal advice he had received consequent upon the complaint on the basis that it be used for a limited purpose and confidentially. When the Society discontinued its investigation, the client brought subsequent proceedings against the solicitor and subpoenaed the Society, successfully obtaining production of the documents including the subject legal advice provided confidentially. [52] In this case, the CDPP, by its officers, has already disclosed part of otherwise privileged communications and as such, for the same reasons as stated by Martin J in Bunting it “gives rise to an inconsistency between that conduct and the 34 1987 HCA 25 35 My emphasis. 36 Carter v. Managing Partner Northmore Hale Davy and Leak (1995) 183 CLR 121; and R v. Mokbel (2005) VSC 410. 37 (1999) 201 CLR 1 at 7, 38 (1995) 185 CLR 83 at 95-97 39 At paragraph 71. 40 1995 185CLR83 -- 11 of 12 -- 12 maintenance of the confidentiality…and it would be unfair for the Director to maintain the privilege in respect of the communication. Waiver of privilege is, therefore, imputed. In that sense the duty of disclosure "prevails" over legal professional privilege”41. [53] However, having inspected the CDPP file, and regardless of the imputed waiver, this court is satisfied that the documents the subject of the claim are irrelevant and would not assist the accused in any forensic way in his defence. This court therefore declines to order production by the CDPP of the documents required pursuant to the summons issued at the direction of the defendant’s solicitors on 18th February 2008. 41 R v. Bunting 2002 per Martin J at paragraph 71 -- 12 of 12 --