Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kitchingman v R [2023] NSWCCA 4 Hearing dates: 29 November 2022 Date of orders: 3 February 2023 Decision date: 03 February 2023 Before: Basten AJA at [1]; Dhanji J at [45]; R A Hulme AJ at [46] Decision: (1) Grant the applicant leave to appeal from the judgment in the District Court of 2 November 2022 refusing a permanent stay. (2) Dismiss the appeal. Catchwords: CRIME – procedure – interlocutory appeal – application for permanent stay – applicant unfit to stand trial – charge of buggery with child – special hearing to be conducted – refusal by trial judge to permanently stay proceedings – reliance on delay, cognitive impairment and physical infirmity – whether judge erred in not finding continuation of proceedings unacceptably unfair Legislation Cited: Bail Act 2013 (NSW), s 6(1) Crimes Act 1900 (NSW), s 79 Criminal Appeal Act 1912 (NSW), s 5F Mental Health Act 1958 (NSW), ss 23, 24 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 49-51; Pt 4, Div 3; ss 56(1), 57, 59, 63(2); Sch 2, cl 7 Mental Health (Forensic Provisions) Act 1990 (NSW) Pt 2, s 22A Cases Cited: Derley v R [2016] NSWCCA 60 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 R v Edelsten (1989) 18 NSWLR 213 R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 R v Steffan (1993) 30 NSWLR 633 R v WRC (2003) 59 NSWLR 273; [2003] NSWCCA 394 Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51 Category: Principal judgment Parties: Allan Kitchingman (Applicant) Rex (Respondent) Representation: Counsel: J Watts (Applicant) B Hatfield (Respondent) Solicitors: R Behan, Solicitor for Legal Aid (NSW) (Applicant) C Hyland, Solicitor of Public Prosecutions (NSW) (Respondent) File Number(s): 2019/00092656 Publication restriction: Statutory prohibition on identification of complainant Decision under appeal Court or tribunal: District Court Lismore Jurisdiction: Criminal Date of Decision: 2 November 2022 Before: McLennan DCJ File Number(s): 2019/00092656 JUDGMENT 1. BASTEN AJA: The applicant, Allan Kitchingman, seeks leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) from an interlocutory judgment of the District Court given on 2 November 2022. On that date, Judge McLennan SC dismissed an application for a permanent stay of a special hearing involving the applicant. 2. The applicant was charged on 13 March 2019 with one offence of buggery as identified in the Crimes Act 1900 (NSW), s 79, as in force in 1977/1978. The charge was based on a complaint that the applicant, then an Anglican priest in Mullumbimby on the New South Wales north coast, had engaged in anal intercourse with the complainant, then a boy aged 12 or 13 years. 3. On 24 September 2020, following an inquiry conducted under the Mental Health (Forensic Provisions) Act 1990 (NSW) ("Forensic Provisions Act"), the applicant was found unfit to be tried. [1] He was then 87 years old and suffering from Alzheimer's dementia and in poor physical health. 4. In addressing the application for a permanent stay, McLennan DCJ noted the submission that a special hearing would be manifestly unfair to the applicant as a result of a combination of factors, namely (i) the effect of the delay in bringing the matter to the attention of investigating authorities; (ii) the loss of evidence and witnesses leading to a forensic disadvantage which is incurable; (iii) the applicant's degree of cognitive impairment and physical infirmity; and (iv) his general inability to raise a defence. [2] 5. As to matters (iii) and (iv), the judge identified and summarised the material before the Mental Health Review Tribunal which had to led to its conclusion that the applicant was unfit to stand trial, a conclusion described by the primary judge as "inevitable". [3] The judge continued: "What it means, however, for the special hearing is that Mr Kitchingman will, from a practical point of view, be unable to give evidence in his own defence in respect of matters relating to the relevant period 1 January 1977 through to 12 September 1978 [the period specified in the charge], nor will he be able to meaningfully take part in the proceedings so as to instruct his lawyers during the course of those proceedings about any of the evidence given during those proceedings because he does not have the capacity to recall what it is that he would hear during the course of the day." 1. With respect to his physical health, the judge stated: "There has been steady decline over the past 12 months, as is expected with chronic renal failure, dementia and old age. His weight is declining and his oral intake is poor. It is clear he is in the palliative stage of his illness and that recovery is not expected." 1. While such incapacities were essential elements of the finding of unfitness to stand trial, the judge accepted that it was "relevant to consider the state of Mr Kitchingman's health as described in an application such as this, particularly when it is said that the combination of factors is what makes the continuance of a special hearing unacceptably unfair". [4] 2. Matter (i), namely delay in bringing the matter to the attention of the authorities, was relevant to the fact of the applicant's current unfitness, but it was also causally related to the forensic disadvantage resulting from the loss of evidence and witnesses. 3. The evidence relied upon by the prosecution was limited to the evidence of the complainant and reliance upon the applicant's pleas to offences of indecent assault in relation to another boy with whom he had contact in similar circumstances. The indecent assaults involved fondling of the genitals and fellatio, conduct also relied upon with respect to the complainant, by way of tendency evidence. The defence case (other than the evidence which might have been called from the applicant) was directed to the assertion that the applicant (allegedly due to a "botched circumcision") was unable to maintain an erection. That evidence would be relied upon to demonstrate that anal intercourse as described by the complainant could not physically have occurred. 4. The primary judge dealt with the evidence in some detail. In part it depended upon evidence from the applicant's wife, Jan Kitchingman, who had stated: [5] "Allan told me he had experienced a botched circumcision and I always understood from Allan that sexual penetration hurt. Our marriage is unconsummated in the sense that we have never had penile-vaginal intercourse." 1. Ms Kitchingman also gave evidence of a visit with her husband to a general practitioner in Lismore, Dr Oakeshott, and a referral by him to an IVF specialist in Brisbane. There was evidence that the records of the Lismore clinic for the relevant period had been destroyed in the 2017 floods, and that the IVF facility in Brisbane could not be identified. The judge addressed that material by noting, first: [6] "In my view, focusing particularly on the loss of the material from the [Lismore clinic] and the IVF clinic for the moment, the forensic disadvantage suffered by Mr Kitchingman is not of the order claimed by the applicant, in my opinion. There is a significant body of material which, in my view, demonstrates the following: 1. Mr Kitchingman has consistently, through time, asserted to a number of people, who have no relation to each other it might be added, that he could not sustain an erection because of a botched circumcision. 2. Mr Kitchingman has acted in a way consistent with those assertions and, in particular, went to the time and trouble and expense of a difficult process of attempting with his wife to fall pregnant through the IVF fertility process. 3. His assertion that in fact there was a botched circumcision is supported by Dr Martin A White's observations concerning the small tissue bridge on Mr Kitchingman's penis…." 1. In short, the primary judge was not persuaded that the absence of the medical records would create a forensic disadvantage of a significant magnitude. To the extent that there was a forensic disadvantage, it was a matter which he, as the judge conducting the special hearing, would be able to identify, take into account and expose in his judgment. [7] 2. Thirdly, the judge addressed a submission on behalf of the applicant relying upon the weakness of the prosecution case, in conjunction with the applicant's cognitive decline and the general problems associated with delay. Noting that whether he entertained a reasonable doubt would depend to a significant extent on his assessment of the complainant as a witness, the judge concluded that it was "difficult to come to a conclusion that the Crown case is so weak that one would consider that there was no reasonable prospects of success at a special hearing". [8] 3. The judge's conclusion was as follows: [9] "The decision to grant a stay is a discretionary one. I have considered the issue concerning delay, the loss of evidence, Mr Kitchingman's degree of cognitive impairment and physical infirmity but I am not of the view that, in the circumstances of this case, it makes it impossible for there to be a special hearing that is acceptably fair and there is the great public interest in having trials of this nature, even in the form of a special hearing, determined, not only because of the interests of the accused but also because of the interests of the complainant and, as made clear in the High Court's decision in Walton, there is a need to maintain public confidence in the administration of justice …." Jurisdiction of this Court 1. Section 5F(1)(a) of the Criminal Appeal Act provides that the right of appeal conferred by the section applies to "proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court". Pursuant to subs (3), a party to the proceedings may appeal to this Court against an "interlocutory judgment or order given or made in the proceedings", subject to a grant of leave to appeal. 2. These provisions raise two issues, namely whether (i) a proceeding by way of special hearing in the District Court is a "proceeding… on indictment", and (ii) a refusal of a stay of such proceedings is an "interlocutory judgment" in the proceedings. No issue was raised by the respondent as to the jurisdiction of this Court. 3. As to the first matter, the procedure for determining fitness to stand trial, as set out in Pt 2 of the Forensic Provisions Act, [10] envisaged that the person concerned is to be, or has been, arraigned on a charge. Fitness may be addressed prior to arraignment, but, as is clear from the express terms of s 5F(1), pretrial proceedings, such as committal proceedings, may be the subject of an interlocutory appeal. That would appear to include findings by a court that the defendant is fit, or unfit to be tried. (It is not necessary to consider the position with respect to findings of the Mental Health Review Tribunal as to whether a defendant is fit or unfit and whether, if unfit, may become fit to be tried for the offence within 12 months. [11] ) 4. Although a special hearing under Pt 4, Div 3 of the 2020 Act is not a trial in the usual sense, the court is required to conduct the hearing "as nearly as possible as if it were a trial of criminal proceedings": s 56(1). It is clear from the power of amendment of an indictment given by s 57, that the special hearing proceeds as a restricted trial on indictment. [12] Accordingly, a special hearing may give rise to orders the subject of s 5F. Indeed, so much has been assumed in a number of cases where interlocutory appeals have been brought from such orders. 5. As to the second matter, it was accepted in the early case of R v Edelsten [13] that the refusal of a permanent stay is, in relation to a criminal trial, an interlocutory order for the purposes of s 5F(3). In R v Steffan [14] the point was conceded, but the concession was accepted as correct, the primary intention of the provision being to prevent such matters going to the Court of Appeal in its supervisory jurisdiction. [15] There is no reason to suppose that a similar conclusion should not apply with respect to a stay sought and refused in relation to a special hearing. Principles relating to stay applications 1. As the primary judge correctly noted, the applicable legal principles have been stated in a number of cases, including, recently in Moubarak bht Coorey v Holt. [16] In particular, the primary judge set out a summary of relevant principles identified by Bell P (Leeming JA and Emmett AJA relevantly agreeing) at [71]. Various phrases, with no precise operation, were identified, including whether the continuation of the proceedings would be "manifestly unfair to a party" or would "bring the administration of justice into disrepute". [17] 2. Moubarak was a civil case, but Bell P noted the observations of Mason CJ in a criminal matter, Jago v District Court of New South Wales. [18] In Jago, Mason CJ, after noting the power of the court to take appropriate action to prevent injustice continued: "But it may be that 'injustice' in this context has a limited meaning, although the power is not to be confined to closed categories…. In particular, the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context. However, for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is the nature of the proceedings, not their formal classification, that is important…." 1. Moubarak was a civil claim, but it involved similar issues. Thus, the plaintiff brought proceedings against her uncle alleging sexual assaults on four occasions when she was 12 years old, some four decades earlier. The uncle was suffering from severe dementia and was incapable of giving evidence or instruction for his defence. A refusal to grant a stay of the civil proceedings was reversed. 2. Despite the factual similarities, there is an important distinction between civil proceedings and the present case. The availability of a process of special hearings with respect to an accused who is not fit to stand trial necessarily engages different criteria. So much was recognised by the High Court in Subramaniam v The Queen: [19] "28 Stays in the context of the Act: One important purpose of the Act is an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end. It is also no doubt another purpose of the Act that a special hearing actually take place, and that victims be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done. This purpose is secured not only by the holding of the special hearing, but also, in an appropriate case, by the pronouncement of a 'limiting term' of imprisonment that would have to be served if the person had been tried in the normal way. It is self-evident that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings, will have its deficiencies. But no system of justice is perfect. Neither the deficiencies of a special hearing under the Act, nor the other matter which was referred to in submissions, that the Act reposes expansive and wide discretions in the State Attorney-General, provides reason to construe and apply the Act otherwise than according to its tenor. 29 No error has been shown: The main difficulty for the appellant is that the Act assumes as the basis for its application to her, the very matter upon which she would seek to rely to escape its application, her current mental infirmity and all that it involves. 30 The appellant relied not only upon her current mental condition, but also upon the potential for its exacerbation by reason of the special hearing. This, it was said, would be so oppressive to her as to justify a permanent stay. 31 A relevant test that has been applied and which we would adopt, is whether, in light of the appellant's deteriorating condition, it 'would be out of accord with common humanity' to have allowed the matter, which was, it must be emphasized, a special hearing, to proceed." [Footnotes omitted.] 1. As the High Court also recognised in Subramaniam, concepts such as these defy analytical definition and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. [20] 2. First, there is a public interest in the operation of the criminal justice system which is absent from civil cases between individuals. On the other hand, the purpose of legislative provisions allowing for special hearings of the kind proposed in the present matter, is to provide a person accused of an indictable offence with an opportunity to obtain an acquittal if the prosecution evidence is inadequate to satisfy the criminal burden of proof. 3. The history of both the common law and statutory schemes dealing with unfitness to plead or to stand trial was comprehensively addressed by Wood CJ at CL in R v Mailes. [21] As Wood CJ at CL explained, in dealing with common law developments: "141 A finding of unfitness under this legislation had the consequence that an accused was treated in the same fashion as a person found not guilty by reason of insanity. To that extent it maintained the earlier linkage between unfitness to plead and insanity. In each case the Court had no alternative other than to make an order for his or her admission to and detention, in a hospital, subject to restrictions on discharge. The consequences were so harsh that most accused tried to avoid a fitness hearing by pleading to the substantive charge or to some lesser charge." 1. Until 1986, the Mental Health Act 1958 (NSW) provided that a person found to be mentally ill and unfit to be tried was to be kept in "strict custody" and then (usually) detained in a mental hospital: ss 23 and 24. The predecessor to the current procedures introduced by the Mental Health (Criminal Procedure) Act 1983 (NSW), which came into operation in August 1986, dealt with the problem of the uncertain fate of persons found to be unfit to plead and stand trial. As explained in Mailes, "this legislation was intended to deal with the problem that a person who had been found unfit to plead might be detained indefinitely at the Governor's pleasure in a mental hospital or prison, without ever having an opportunity to present a defence case." It is also clear from the second reading speech that the legislation was intended to apply to the intellectually disabled, as well as to those suffering from some form of mental illness". [22] 2. As a special hearing is designed to provide an opportunity for acquittal of the accused, a question arises as to the consequence of granting a permanent stay. The available verdicts, as now set out in the 2020 Act, are as follows: 59 Verdicts at special hearings (1) The verdicts available at a special hearing include the following— (a) not guilty of the offence charged, (b) a special verdict of act proven but not criminally responsible, (c) that on the limited evidence available, the defendant committed the offence charged, (d) that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged. (2) A judge who determines a special hearing must include in the determination the principles of law applied by the judge and the findings of fact on which the judge relied. (3) A special verdict of act proven but not criminally responsible may only be entered under this section if the judge is satisfied that the requirements of section 28(1) and (2) are met. 1. It may be seen from the terms of s 59 that a person who is not acquitted and is not found to have suffered from a relevant impairment at the time of the conduct the subject of the charge, may be dealt with by the imposition of a "limiting term", but only if the court would have imposed a sentence of imprisonment had the person been convicted following a criminal trial: s 63(2). 2. That legislative scheme leaves open a question as to what powers the court may have in circumstances where a special hearing does not occur. In principle, the indictment remains on foot; however, as a practical matter, no further steps can be taken on the indictment and bail may be dispensed with, if the proceedings have not been finally disposed by a permanent stay. [23] Review of District Court judgment 1. As the respondent correctly submitted, review of the refusal of a stay engages principles generally applicable to an exercise of discretionary power. However, the decision did not engage a discretionary power of the kind considered in House v The King, [24] involving a sentencing exercise. The judgment required in the present case was undoubtedly evaluative and one with no precise criteria to guide it. However, it involved a binary choice: either the special hearing should proceed, or it should not. Nevertheless, as explained by Payne JA in Derley v R: [25] "50 Proceedings under s 5F … do not proceed by way of rehearing. The role of this Court, if leave is granted under s 5F, is to review the correctness of the interlocutory decision under the principles established in House v The King (1936) 55 CLR 499: TS v R [2014] NSWCCA 174; R v BWM (1997) 91 A Crim R 260 at 264. 51 The decision of the primary judge was a discretionary one. In those circumstances, this Court will not intervene unless it can be established that there was some error on the part of the primary judge which caused his discretion to miscarry: Calleija v R [2012] NSWCCA 37 at [6]; 223 A Crim R 391. 52 The power to grant a permanent stay of criminal proceedings should only be exercised in exceptional cases: Jago v The District Court of New South Wales (1989) 168 CLR 23. The Court must be satisfied the continuation of the proceedings would involve unacceptable injustice or unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process: R v Edwards [2009] HCA 20; 83 ALJR 717 at [23]. The mere risk of unacceptable injustice or unfairness is insufficient: TS v R [2014] NSWCCA 174 at [1] per Leeming JA." 1. In considering a grant of leave under s 5F, it may be noted that the grounds of appeal did not seek to challenge the statement of principle identified by the primary judge. Rather, as explained in oral submissions, there were in substance three propositions presented, though concededly not identified with great clarity. Reformulating them in accordance with the discussion at the hearing of the application, they were as follows: 1. the primary judge mistook the facts in making findings as to the scope of the disadvantage resulting from the missing documents; 2. the primary judge failed to give proper weight to the fact that the applicant could not participate in the hearing at all either by giving evidence or giving instructions to lawyers; and 3. the decision was unreasonable or plainly unjust. Disadvantage resulting from missing documents 1. The manner in which the primary judge dealt with the question of missing medical records has been identified above. There was careful consideration of the material which was available, including the evidence of the applicant's wife, who was very much concerned with the issue of the applicant's capacity to have intercourse and was able to give evidence that the marriage remained unconsummated, if that were the case. The judge acknowledged that the loss of medical records would provide a forensic disadvantage, at least to the extent of removing a possible source of medical support for the applicant's claimed incapacity. 2. The judge was also conscious of the fact that the loss of the documentary support, such as it might have been, flowed directly from the lengthy delay in the complainant coming forward and reporting the alleged offending to authorities. The judge accepted that the absence of such independent evidence might be of particular concern in circumstances where the applicant himself was not able to give primary evidence of the facts. 3. This challenge did not give rise to any supportable basis for granting leave to appeal from the decision of the primary judge. This ground should be rejected. Failure to acknowledge effect of dementia 1. This ground also concerns the assessment made of a particular factor which undoubtedly caused forensic disadvantage to the applicant. However, the simple fact that the applicant would not be able to give evidence and would not be able to instruct lawyers was acknowledged by the primary judge. It was, as recognised in Subramaniam, the reason why the statutory process was engaged: it could not of itself provide a basis for staying the statutory process. 2. The consequence for the conduct of the special hearing was self-evident: it did not require analysis or further exposition. In substance, ground (2) provided no independent basis of challenge: it may, however, inform ground (3). Unreasonable decision 1. The heart of the applicant's case turns upon re-exercising the discretion in circumstances in which no specific error can be identified but it may be said that the refusal of a stay demonstrates that the legal test, although correctly stated, cannot have been applied. 2. The test to be applied is that identified in Subramaniam, with respect to a special hearing, making it necessary to ask whether, given the applicant's deteriorating condition, it would be out of accord with common humanity to allow the matter to proceed. In rejecting the challenge to the stay in that case, the High Court continued: "35 … This is not to say that notwithstanding the manifest purposes of the Act, there may not still be cases of mental infirmity calling for the grant of a stay even of the special hearing for which it provides although instances of them are likely to be rare. This is so for two reasons: the Act does not, expressly or by implication, forbid their application; and, common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave." 1. The principle stated there was exemplified by reference to the decision of this Court in R v WRC. [26] WRC addresses the principle, but does not provide an obvious example of circumstances in which the relevant criteria might require a permanent stay. 2. In substance, the applicant's case must turn upon whether his current requirement of care and treatment would make it an afront to his humanity to allow the trial to continue. It is true that the medical evidence before the primary judge demonstrated that the decline in cognitive abilities was irreversible and continuing. That in itself inevitably required ongoing and increasing requirements of care and assistance. However, the judge noted that the evidence did not support a conclusion, nor did the applicant contend for the conclusion, that "he is someone who is near death or is likely to die before the special hearing is heard". [27] Indeed, the judge noted that "it is not contended on the part of Mr Kitchingman that to conduct a special hearing would be an afront to common humanity, as that term is explained in Subramaniam at [pars] 31-35". 3. These circumstances do not permit the conclusion that the judge made a manifestly unreasonable decision. It follows that ground 3, although it raised a legitimate concern, must be rejected. Orders 1. It was appropriate to allow this matter to proceed to a full hearing, so that the factual and other issues could be ventilated. Accordingly, it is appropriate to grant leave to appeal, but the appeal must be dismissed. 2. I propose the following orders: 1. Grant the applicant leave to appeal from the judgment in the District Court of 2 November 2022 refusing a permanent stay. 2. Dismiss the appeal. 1. DHANJI J: I agree that, for the reasons given by Basten AJA, leave should be granted but the appeal dismissed. 2. R A HULME AJ: I agree with Basten AJA that leave to appeal should be granted. However, the three grounds upon which the appeal is based fail for the reasons his Honour has provided at [33]-[42]. I therefore agree that the appeal should be dismissed. ********** Endnotes 1. Although the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("2020 Act") had by then received assent, it did not commence until 27 March 2021. However, steps taken in relation to a special hearing have been taken under the 2020 Act, pursuant to Sch 2, cl 7. 2. Judgment on stay application, 2 November 2022, pp 1-2. 3. Primary judgment, p 7. 4. Primary judgment, p 8. 5. Primary judgment, p 10. 6. Primary judgment, p 14. 7. Primary judgment, p 15. 8. Primary judgment, p 17. 9. Primary judgment, p 18-19. 10. See now Pt 4 of the 2020 Act. 11. 2020 Act, ss 49-51. 12. A similar provision was found in s 22A of the Forensic Provisions Act. 13. (1989) 18 NSWLR 213 at 218F (Lee J). 14. (1993) 30 NSWLR 633, 635E-G (Hunt CJ at CL, Grove and Sharpe JJ). 15. See Edelsten at 218E. 16. (2019) 100 NSWLR 218; [2019] NSWCA 102. 17. Moubarak at [71](8) and (9). 18. (1989) 168 CLR 23 at 25-26; [1989] HCA 46. 19. (2004) 79 ALJR 116; [2004] HCA 51. 20. Subramaniam at [27], citing Deane J in Jago at 57. 21. (2001) 53 NSWLR 251; [2001] NSWCCA 155 (Spigelman CJ and Greg James J agreeing). 22. Mailes at [191]. 23. Bail Act 2013 (NSW), s 6(1). 24. (1936) 55 CLR 499 at 505; [1936] HCA 40. 25. [2016] NSWCCA 60 (Payne JA, Price and Adamson JJ agreeing). 26. (2003) 59 NSWLR 273; [2003] NSWCCA 394 (Spigelman CJ, Dunford and Hidden JJ). 27. Primary judgment, p 7. 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: 03 February 2023