Bargashoun v R

1. [1]

   ADAMSON JA: Richard Bargashoun (the applicant) was charged on indictment with three counts: shoot with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW) (count 1); in the alternative, discharge a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act (count 2); and robbery with infliction of grievous bodily harm contrary to s 98 of the Crimes Act (count 3). He pleaded guilty to counts 2 and 3 and stood trial on count 1 before Colefax SC DCJ (the trial judge) and a jury, which returned, by majority of 11, a verdict of guilty on 25 May 2015.

2. [2]

   The applicant applies for an extension of time for leave to appeal against his conviction.

3. [3]

   On 1 April 2016, the applicant was sentenced for counts 1 and 3, as well as a related charge of dealing with the proceeds of crime, and a separate substantive charge of robbery in company (which involved the applicant and Mr Lewis stealing about $116,000 worth of jewellery). An aggregate sentence of 20 years’ imprisonment was imposed with a non-parole period of 15 years’ imprisonment. The term commenced on 1 July 2013. The applicant will first become eligible for parole on 30 June 2028. There has been no appeal against the aggregate sentence.

4. [4]

   The applicant filed a notice of intention to appeal on 27 April 2016. Six applications for extension of time were filed on: 27 October 2016, 27 January 2017, 27 April 2017, 3 August 2017, 29 September 2017 and 29 December 2017. Extensions were required because of the difficulty in obtaining exhibits and transcript and the need to allow time for an advice on the merit of an appeal to be obtained. On each occasion, the Registrar extended the period of time for filing a notice of appeal.

5. [5]

   In his application filed on 29 December 2017, the applicant’s solicitor explained that the grant of Legal Aid had been terminated because advice had been received from Ms Davenport SC to the effect that there was no merit in an appeal. The basis of the further application was that the applicant wished to explore obtaining funds from private sources so that he could challenge his conviction.

6. [6]

   On 15 January 2018, the Registrar of the Court of Criminal Appeal granted an extension to 30 March 2018. The notation on the file read: “[f]inal extension without good reason as one MERIT advice has already been provided.” No notice of appeal was filed within the extended time.

7. [7]

   On 1 June 2021, the applicant instructed Jordan Gear, a solicitor, to act on his behalf and advise about prospects of appeal. On 22 October 2021, Mr Gear briefed Thomas Woods of counsel to advise on the prospects of appeal.

8. [8]

   On 23 June 2022, the applicant filed a notice of appeal and indicated, in the prescribed form, that an extension of time was required. In support of the application, the applicant relied on an affidavit of Mr Gear, who deposed to having briefed Mr Woods and having obtained advice that there were prospects of appeal. The notice of appeal contained a single ground: that the verdict was unreasonable.

9. [9]

   In the portion of the form entitled, “reasons for filing a notice of appeal out of time”, Mr Gear wrote:

10. [10]

    On 30 January 2023, further submissions were filed on behalf of the applicant, seeking leave to add two further grounds, as follows:

11. [11]

    There is no explanation for the delay in respect of grounds 2 and 3. Mr Woods accepted that leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules) was required in respect of grounds 2 and 3.

12. [12]

    As the question whether an extension of time ought be granted is affected by the merits of the grounds, it is appropriate to address the grounds of appeal before turning to the question of extension. However, it is necessary, in order to address the grounds of appeal, to set out, as briefly as possible, the conduct of the trial and the evidence which is germane to count 1.

13. [13]

    Much of the Crown case was not in dispute, having regard to the pleas of guilty to counts 2 and 3.

14. [14]

    It was common ground that the applicant and his co-offender, Mr Lewis, went to the Berala Hotel in Minto on 12 November 2012 with the intention of robbing Terrence Oliver when he left the hotel, having collected its takings. They brought a .22 calibre shotgun with them with a view to intimidating Mr Oliver, whom they knew, from previous observation, would be armed with a gun. When Mr Oliver emerged from the hotel at about 12.29pm on that day, the applicant and Mr Lewis approached him and demanded the bag which contained the money.

15. [15]

    When Mr Oliver did not relinquish the bag, Mr Lewis stabbed him with a box cutter knife and the applicant fired shots at him. The first two shots were to his legs, but subsequent shots were fired. It was ultimately common ground that at least five further shots were fired, three of which were to the torso area (one in the upper chest area, one in the abdomen area and one in the right hip area).

16. [16]

    The Crown case was that, when the applicant fired each shot after the first two (which were fired at Mr Oliver’s legs), he had a dual intention: to rob Mr Oliver of the bag and to kill him. The Crown principally relied on the nature of the weapon – a commercially available hand gun firing .22 bullets – as distinct from a knife or a fist; the number of shots fired (at least three of which were to Mr Oliver’s torso), as well as the close range from which they were fired.

17. [17]

    The Crown further submitted that the jury ought accept Mr Oliver’s evidence that, after he handed over the bag containing the money, the applicant shot him again twice and that, if the jury accepted that evidence, the intention to kill was proved “overwhelmingly.” I note Mr Woods’ concession that, if the jury had been able to be satisfied that the applicant had shot Mr Oliver after he had relinquished the bag, the conviction would have been reasonable.

18. [18]

    The Crown submitted that the CCTV footage supported Mr Oliver’s evidence generally and about the timing of the final two shots. It also relied on the circumstance that Mr Oliver had not seen the CCTV footage before giving evidence and therefore could not be said to have reconstructed his evidence by reference to it.

19. [19]

    The Crown relied on Mr Oliver’s evidence that he was shot in the legs which caused him to fall to the ground, after which he received multiple gunshot wounds to his chest. Mr Oliver explained that although he felt the first bullet going into him, he “couldn’t feel anything” with respect to the others. He later qualified his response by saying:

20. [20]

    In cross-examination, Mr Oliver accepted that, having been shot, he was “dazed”. However, he maintained that he knew where he was shot “as a result of the body jerking when the bullets penetrated [his] body.”

21. [21]

    Mr Oliver said that he could see the person who was shooting him (who was accepted to be the applicant) and where he was pointing the firearm. He said:

22. [22]

    It was the Crown case, based on Mr Oliver’s evidence, that the gunshot wounds included the two marks below the right nipple area of Mr Oliver’s chest. It was also the Crown case that, after Mr Oliver had relinquished the bag containing the money, the applicant shot him twice in the chest. Mr Oliver’s evidence as to the sequence of events was as follows:

23. [23]

    Mr Oliver said that he got up and the red car (which was accepted to be the car in which the applicant and Mr Lewis were travelling) drove towards him and he “had to swerve out of the road to miss it.”

24. [24]

    The Crown tendered photographs of Mr Oliver, which were taken on 6 December 2012 (approximately four weeks after the shooting) which showed a mark above his right nipple, two marks below his right nipple, a mark on his abdomen, a wound on his back (in which was accepted to be an exit wound), some knife wounds on his back and arm and marks on his legs.

25. [25]

    The Crown also relied on an Emergency Department admission form which identified five gunshot wounds to the applicant: a gunshot wound to his right chest above the nipple, a gunshot wound to his abdomen, a gunshot wound to his hip and a gunshot wound to each leg.

26. [26]

    The Crown called Dr Khan, who gave evidence that a chest drain was inserted into the applicant’s chest cavity to drain the fluid which had collected there as a result of the gunshot wound or wounds. Dr Khan accepted (in cross-examination) that it was possible that the two marks below the applicant’s nipple area may be incisions relating to the insertion of the drain. Dr Khan confirmed that metallic fragments had been located in the right upper chest area, the right hip and the abdomen.

27. [27]

    The Crown also adduced evidence of eye witnesses. However, their evidence was not particularly germane to the principal issue of the applicant’s intention and was, in any event, not as probative as the CCTV footage or Mr Oliver’s evidence. Accordingly, it need not be addressed in these reasons.

28. [28]

    The defence case was that the applicant’s intention was to rob Mr Oliver and that, to persuade Mr Oliver to relinquish the bag which contained the money, he shot him, intending to cause him grievous bodily harm, but not to kill him. The jury, by its verdict, can be taken to have excluded this hypothesis. Mr Woods accepted that it was open to the jury not to accept the applicant’s evidence. Accordingly, it can be put to one side for present purposes.

29. [29]

    The applicant denied shooting Mr Oliver after he obtained possession of the bag. The jury was entitled not to accept this evidence.

30. [30]

    In closing submissions, the applicant’s trial counsel submitted that, in circumstances, where the applicant did not shoot Mr Oliver’s head, heart (or, indeed, the left side of his chest) or other vital organs, the jury could not reasonably infer an intention to kill.

Consideration

1. [31]

   Mr Woods submitted that the jury could not be satisfied that the applicant intended to kill Mr Oliver because the Crown could not prove that the final two shots had been fired after he relinquished the bag. He submitted that Mr Oliver was an unreliable witness because of the gravity of the injuries he sustained and the trauma of the shooting which, understandably, made him “dazed.” Further, he submitted that only two of the shots were actually life-threatening – the shot to the upper right chest and the shot to the abdomen – and that the Crown could not prove that the applicant’s intention, at the time of firing those shots, was an intention to kill, as distinct from recklessness (foresight as to the probability that Mr Oliver would die). Mr Woods accepted that recklessness would not be sufficient to make out the offence in count 1 but conceded that it would have been sufficient to make out the mental element of murder, had Mr Oliver died: The Queen v Crabbe (1985) 156 CLR 464; [1985] HCA 22; Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27.

2. [32]

   In substance, the Crown case was that it was open to the jury to infer that the applicant intended to kill Mr Oliver after firing the first two shots (which had been directed to his lower body) because the subsequent shots were directed, at very close range, at Mr Oliver’s torso (chest, abdomen and hip) and went into his torso. As referred to above, the Crown case included the submission that, after the applicant and his co-offender took the money from Mr Oliver, the applicant returned to shoot him again in the torso. Although the Crown case was stronger if this latter submission was made out, the Crown case was that the intention to kill was formed and acted on after the first two shots had been fired.

3. [33]

   Where an unreasonable verdict ground is raised, this Court must determine whether it was open to the jury to find the applicant guilty or whether a jury must have had a (reasonable) doubt: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728. Thus, this Court must determine whether it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

4. [34]

   The jury is the body which is entrusted with the primary responsibility of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

5. [35]

   However, the judges who constitute the Court must review the evidence for themselves to determine whether we have a doubt. In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said at 494:

6. [36]

   There is a distinction between an intent to do a particular act (discharging a firearm) and an intent to achieve a particular consequence (to kill a person). In the present case, the issue is whether it was open to the jury to infer to the requisite standard (beyond reasonable doubt) that the applicant, when he deliberately shot Mr Oliver, intended to kill him or, merely (as he has admitted by his plea to count 2) to cause him grievous bodily harm. Thus, the present applicant is concerned with intention to bring about a particular consequence (the death of Mr Oliver). Recklessness as to consequences is insufficient to establish intention for the purposes of the offence of shoot with intent to murder.

7. [37]

   Absent an admission (and there is none in the present case), proof of intention will depend on circumstantial evidence. Thus, the jury was required to determine, as a matter of inference from evidence of the surrounding facts and circumstances, whether the accused intended to bring about the requisite consequence.

8. [38]

   I do not consider it to be necessary, in order to address ground 1, to resolve the relatively confined factual issues referred to above. In my view, it was reasonably open to the jury to convict the applicant of count 1, whether or not the two marks below Mr Oliver’s right nipple area were gunshot wounds or surgical incisions to drain his chest cavity, and whether or not all, or only some, of the shots were fired when Mr Oliver was still holding the bag containing the money.

9. [39]

   This inference that the applicant intended to kill Mr Oliver from at least the last (if not the third) shot was open because of the nature of the weapon, a .22 calibre hand gun, the number of shots, the range at which the shots were fired and the parts of Mr Oliver’s body into which the bullets were fired. The applicant was, as the CCTV footage shows, very close to Mr Oliver and was shooting directly at him. The gun was directed at Mr Oliver’s body. It was accepted that his evidence and the medical evidence established that the first two shots were fired at Mr Oliver’s legs. The later shots, whether there were three further shots (one into the upper chest, one in the abdomen and one in the hip) or five further shots (including two further shots below the right nipple area), were all directed at Mr Oliver’s torso and were therefore life-threatening. Mr Oliver’s evidence was largely corroborated by the medical evidence and the CCTV footage. Although he said that he had been shot in the left upper chest and the medical evidence established that he had been shot in the right upper chest, the jury was entitled to regard this as an understandable mistake which did not impugn his credibility to any material extent.

10. [40]

    It was open to the jury to infer that the applicant realised that the two shots fired at Mr Oliver’s legs were insufficient to get him to give up the bag with the money and decided to change his approach. By this time, Mr Oliver was on the ground because of the injuries to his legs. The applicant leaned over him and continued to shoot at Mr Oliver’s torso. It was open to the jury to infer that the only reasonable inference to draw from the applicant’s act of shooting Mr Oliver multiple times, at point-blank range above his lower extremities, was that he intended to kill him in order to get the bag with the money. The jury was entitled to reason that whether or not the applicant shot Mr Oliver after he had relinquished the money bag was beside the point.

11. [41]

    It may be accepted that, had Mr Oliver given up the money bag after he had been shot in the legs, the applicant may not have formed the intention of killing him. However, the applicant’s change in tactics to shoot him, not in the lower extremities (where the first two shots had been fired) but in the torso, was sufficient, in my view, to render it open to the jury to infer that the only reasonable hypothesis was that the applicant intended to kill Mr Oliver at the time he shot him, after the first two shots.

12. [42]

    I confirm that, having reviewed all of the evidence at the trial, including the CCTV footage, I am satisfied beyond reasonable doubt that when the applicant fired the third and subsequent shots, he intended to murder Mr Oliver and was therefore guilty of count 1.

13. [43]

    For these reasons, I am not persuaded that it is appropriate to extend time for leave to appeal in respect of ground 1.

14. [44]

    Even had there been merit in the ground, there are significant reasons why an extension of time ought be refused.

15. [45]

    Ground 2, like ground 3, was raised for the first time in written submissions filed on 30 January 2023, a week before the hearing of the appeal. It is a classic “armchair appeal” ground: see, for example, Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; (2011) 209 A Crim R 424 at [169]-[170] (Johnson J, McClellan CJ at CL and James J agreeing).

16. [46]

    Ground 2 arises from directions given by the trial judge in the course of the summing up. However, it is necessary to review what occurred in the parties’ closing addresses to put the directions in context.

17. [47]

    Towards the conclusion of the Crown’s closing submissions, the prosecutor said:

18. [48]

    When the Crown finished the closing address, the trial judge sent the jury out for the short adjournment. In the absence of the jury, his Honour asked the Crown why he had told the jury that they could be satisfied of certain matters beyond reasonable doubt when it was a circumstantial case. His Honour expressed concern that the jury had been misled. The prosecutor asked for an opportunity to correct the submission, which was granted, with the applicant’s trial counsel’s concurrence.

19. [49]

    When the jury came back, his Honour invited the prosecutor to say something to the jury. The prosecutor said:

20. [50]

    In closing address, the applicant’s trial counsel also referred to “beyond reasonable doubt” in the context of particular facts. She said:

21. [51]

    In the absence of the jury, the following exchange occurred:

22. [52]

    Following this exchange, the applicant’s trial counsel, in the presence of the jury, said:

23. [53]

    In the summing up, his Honour gave the standard direction regarding circumstantial evidence and referred to the oft-quoted analogy of strands in a cable. His Honour then said:

24. [54]

    Mr Woods contended that the Crown was required to prove beyond reasonable doubt that the applicant returned to shoot Mr Oliver again, after Mr Oliver had given up the bag of money because this was a matter that was essential to the Crown case on intention. He submitted that, had the jury been satisfied that this had occurred, it was entitled to return a guilty verdict on count 1. However, if the jury was not satisfied of this matter beyond reasonable doubt, he submitted that the verdict was unreasonable (which is related to ground 1). He contended that, because the Crown was required to prove that matter (the post-bag shooting) beyond reasonable doubt, his Honour’s direction amounted to a misdirection. Mr Woods sought to distinguish this submission from a contention that his Honour ought to have given a Shepherd direction (see Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56), directing the jury that they were required to be satisfied of that matter beyond reasonable doubt before they could convict the applicant of count 1.

25. [55]

    There are two principal difficulties with that submission. First, it was not the way the Crown put its case. As referred to above, the Crown put its case on the basis that in respect of all shots but the first two (which were to Mr Oliver’s legs), the applicant had an intention to kill Mr Oliver, and that, with each subsequent shot, the Crown’s case became stronger. The Crown submitted that its case was “overwhelming” (which I understand to mean even greater than beyond reasonable doubt) if the jury was satisfied that the last two shots had been fired after Mr Oliver had relinquished the bag. Secondly, proof that the last two shots were fired after Mr Lewis got the bag was not an essential ingredient of the offence, which could well have been proved without it.

26. [56]

    Further, the applicant was represented by experienced trial counsel. There was no suggestion of incompetence. That his counsel did not seek either a Shepherd direction or to correct the direction the trial judge gave, is a powerful indication, in the circumstances of the present case, that there was no error in his Honour’s direction.

27. [57]

    For these reasons, ground 2 has not been made out.

28. [58]

    Mr Woods contended that the following direction, given in the summing up, was apt to mislead the jury:

29. [59]

    Mr Woods argued that his Honour’s use of the words “quite easily” and “different analyses” was “revealing”. He contended that some jurors might not be satisfied that the applicant had an intention to kill Mr Oliver until he fired the last two shots and that those last two shots were fired after Mr Oliver had relinquished the bag, whereas other jurors might have been satisfied that the applicant had an intention to kill Mr Oliver from the third shot, irrespective of whether the applicant fired shots after Mr Oliver had relinquished the bag. He submitted that the possibility of different jurors coming to different conclusions was so real in the present case that a unanimity direction was required, in accordance with the principles articulated in Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 (Lane).

30. [60]

    Mr Woods accepted that the applicant’s trial counsel may have had a forensic reason for not seeking a unanimity direction, since it would have been objectively reasonable for trial counsel to consider that such a direction would serve to highlight the repeated shooting and the last two shots.

31. [61]

    In Lane, the Crown case was that the appellant struck the deceased twice and on each occasion the deceased fell to the ground and struck his head. The Crown submitted to the jury that it could be satisfied beyond reasonable doubt that the appellant was guilty of murder (or manslaughter) on the basis of either, or both, of those assaults. The trial judge directed the jury that it was open to it to find that a deliberate act of the appellant had caused the death of the deceased, if the jury found that either fall was caused by the appellant. No specific unanimity direction was given to direct the jury that it had to be unanimous as to the act which caused the death of the deceased. The High Court allowed the appeal and quashed the conviction on the basis that the verdict was necessarily uncertain as to the act or acts of the appellant on which it was based. The plurality (Kiefel CJ, Bell, Keane and Edelman JJ) said at [42]:

32. [62]

    I consider the present case to be distinguishable from Lane. The Crown case was not confined to a particular shot, but rather to the whole course of events. It is possible, in the present case, that one juror may have been satisfied that, from the third shot, the applicant intended to kill Mr Oliver, but that another may have been satisfied that he had that intention only from the fourth shot, and yet another from the fifth shot, and another from the last shot. However, this did not require a unanimity direction since the first juror referred to above must have been satisfied that the applicant had the intention to kill Mr Oliver when he fired each of the shots from the third shot, including the last shot. Thus, there must have been unanimity in respect of the last shot, irrespective of when particular jurors were satisfied that the intention to kill was first formed. Further, it did not matter whether the jurors were unanimous that, when the last two shots were fired, Mr Oliver did not still have the bag, since this was merely a factual matter and not an element of the offence. What needed to be proved beyond reasonable doubt was that the appellant had an intention to kill Mr Oliver when he shot him. In these circumstances, I infer that the applicant’s trial counsel did not seek such a direction because she appreciated that it would not have been appropriate that it be given.

33. [63]

    For these reasons, ground 3 has not been made out.

34. [64]

    In addition to the lack of merit of any of the grounds, there are further reasons why an extension of time ought not be granted. As set out above, the applicant had the benefit of publicly funded (Legal Aid) advice that his appeal did not have merit. His opportunity to file a notice of appeal was extended on more than one occasion. He allowed the final extension, 30 March 2018, to lapse without filing a notice of appeal. His appeal has been brought on almost seven years after he was convicted and sentenced. There is no adequate explanation for the delay.

35. [65]

    Although Mr Woods submitted in writing that a new trial was not sought in respect of count 1 (since if it was made out, the plea to the alternative count, count 2, would apply), the same could not be said for counts 2 and 3, where the only practical relief would be an order for a new trial. To extend time with a view to determining whether a re-trial ought take place over eight years after the original trial would not necessarily be in the interests of justice: see the considerations referred to in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [29] (French CJ, Hayne, Bell and Kiefel JJ). In particular, Mr Oliver, the victim and principal eye witness, would have to revisit events which were admittedly life-threatening. To require him to give evidence again would be difficult and would, almost inevitably, invoke the trauma which he has already suffered.

36. [66]

    Further, the maximum penalty for the count 1 offence (shoot with intent to murder) and the alternative count 2 offence (shoot with intent to cause grievous bodily harm) is the same: 25 years’ imprisonment. There is a slight difference in the standard non-parole period, which is 10 years’ imprisonment for count 1 and 9 years’ imprisonment for count 2. Thus, even if the applicant had been wholly successful in obtaining an extension of time, leave to appeal and an order that the appeal be allowed on the ground that the verdict for count 1 was unreasonable and the conviction for count 1 quashed, he would still have had to be sentenced for count 2. This would have required him to be re-sentenced for the four offences (including count 2) for which he was sentenced in 2016. Whatever marginal benefit there would be to him in this process cannot be predicted, but it is likely to be modest at best. It is difficult to discern the utility in the present application.

37. [67]

    It can be expected that the appeal process will take a significant toll on an applicant. It is undesirable, to say the least, to engender misplaced, or exaggerated, hope in a prisoner. The appeal process may also be distressing to the victim (who faces the prospect of having to give evidence again if a new trial is ordered). Applications such as the present should only be brought where there is a prospect that the interests of the applicant will be appreciably advanced if the application is granted.

38. [68]

    I note for completeness that the trial judge, when sentencing the applicant, was not satisfied that the last two shots were fired after Mr Oliver had relinquished the bag. As set out above, I have not found it necessary to resolve that question for the purposes of determining the reasonableness of the verdict. In these circumstances, it unnecessary to address the circumstances in which this Court may take into account findings made by a sentencing judge in addressing grounds of appeal against conviction.

Conclusion

1. [69]

   As set out above, there has been inordinate delay. None of the grounds has been made out. Grounds 2 and 3 were pressed notwithstanding that no point was taken at trial, thereby attracting the leave requirement in r 4.15 of the Rules. Nonetheless, this Court has heard full argument on each of the three grounds. Although none was made out, each turned on a fundamental principle of the criminal law. The first concerned the circumstances in which an inference of intention can be drawn (which is largely a factual matter); the second concerned the identification of those matters which must be proved beyond reasonable doubt; and the third concerned the circumstances in which a specific unanimity direction is required.

2. [70]

   Notwithstanding the several matters which militate against an extension of time and a grant of leave, I consider it to be appropriate in the present case to extend time, grant leave and dismiss the appeal. This will bring the matter to finality.

Proposed orders

1. [71]

   I propose the following orders:

   1. (1)

      Extend the time for filing the notice of appeal to 23 June 2022.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [72]

   N ADAMS J: I agree with Adamson JA.

3. [73]

   WEINSTEIN J: I agree with Adamson JA.