Diplomat Dan v State of Tasmania

[2024] TASCCA 9

[2024] TASCCA 9

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:               Diplomat Dan v State of Tasmania [2024] TASCCA 9

PARTIES:	DIPLOMAT DAN
v
STATE OF TASMANIA
FILE NO:	1876/2024
DELIVERED ON:	26 August 2024
DELIVERED AT:	Hobart
HEARING DATE:	19 August 2024
JUDGMENT OF:	Estcourt J, Jago J, Martin AJ

CATCHWORDS:

Criminal law – Appeal and new trial – Particular circumstances not amounting to miscarriage – Misdirection or non-direction – Trial judge did not err in law or in factual basis for rulings during the trial, in summing up or the memorandum provided to the jury – No miscarriage of justice. Aust Dig Criminal Law [3470]

Criminal law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Other irregularities – Allegation that trial Court lacked jurisdiction – Court held to have had jurisdiction to try indictment and appellant was lawfully in charge of the jury – No miscarriage of justice.

Aust Dig Criminal Law [3472]

Criminal law – Appeal and new trial – Particular grounds of appeal – Conduct of trial judge – Allegations of corruption and misconduct by trial judge, prosecutor and jury held to be without any foundation – Appeal dismissed.

Aust Dig Criminal Law [3516]

Criminal law – Appeal and new trial – Particular circumstances not amounting to miscarriage – Improper admission or rejection of evidence – Evidence of appellant's guilt clearly admissible and completely overwhelming – No miscarriage of justice.

Aust Dig Criminal Law [3471]

REPRESENTATION:

Counsel:

Appellant:                   

In Person

             Respondent:              

Solicitors: 

P Sherriff

             Respondent:             

Director of Public Prosecutions

Judgment Number:            

[2024] TASCCA 9

Number of paragraphs:  

13

Serial No 9/2024

File No 1876/2024

DIPLOMAT DAN v STATE OF TASMANIA

REASONS FOR JUDGMENT    COURT OF CRIMINAL APPEAL 

Serial No 9/2024

File No 1876/2024

DIPLOMAT DAN v STATE OF TASMANIA

REASONS FOR JUDGMENT   COURT OF CRIMINAL APPEAL

ESTCOURT J
JAGO J
MARTIN AJ
26 August 2024

The appeal

1. The appellant was convicted, after being found guilty by a jury, of two counts of assault and four counts of committing an unlawful act intended to cause bodily harm.

2. He has appealed against his conviction by two notices of appeal, the first filed on 25 June 2024 and the second on 28 June 2024. 

3. The two notices of appeal are attached to these reasons. The Court has not attempted to summarise or paraphrase the grounds set out in those two notices as to do so might rob them of their full import.

4. The following summary of the facts of the case is taken from the learned trial judge's comments on passing sentence:

   "Although charged under the name Daniel Victor Gandini, he strongly prefers to be known as 'Diplomate Dan'. In order to minimise tensions I took the unusual course throughout the trial of referring to him as 'Dan' and addressing him as 'Dan'.  I will continue to do that in these sentencing comments.

   The charges relate to events that took place on 7 and 8 July 2021 at the home of Dan and his wife at Port Sorell.  For sentencing purposes I will need to make some findings of fact in relation to the relevant events and Dan's state of mind.  I may make findings of fact adverse to him only if I am satisfied of such facts beyond reasonable doubt. I may make findings of fact favourable to him if satisfied of such facts on the balance of probabilities.

   Dan was due to appear before a magistrate on Friday 9 July 2021 on a charge of driving whilst disqualified.  He feared that he would lose his driver's licence.  In my view his mental health was not good. He was very distressed about the forthcoming court appearance, and was putting an enormous amount of effort into preparing for it. His wife gave evidence that he and she had a heated discussion about court documents on the night of 7 July 2021, that he stood in front of her, that he was very agitated, that he raised his voice at her, and that he used two fingers to push into the left side of her chest. Count 1 on the indictment was a charge of unlawfully assaulting his wife by pushing her to the chest. The jury found him guilty of that charge.  It is clear that they accepted Mrs Gandini's evidence, and so do I.

   Mrs Gandini gave evidence that on the morning of Thursday 8 July she and Dan were talking about preparing documents for the court appearance, that he started to become frustrated about a document that he was not happy with, that he became quite short and snappy with her, and that he went to the kitchen, returned with a glass of water, threw it over her and their daughter, and then stood very close to her with the glass in his hand, put it up to her head so close that it was nearly touching her, and said that he wanted to drive the glass through her head. Count 3 on the indictment alleged that he unlawfully assaulted her 'by pouring water over her head and threatening to hit her in the face with the glass'. The jury found him guilty of that charge. Clearly they accepted Mrs Gandini's evidence in relation to that incident, and so do I.

   Mrs Gandini thought she might need to go somewhere safe and call for help.  She took her mobile phone and went outside. Dan locked her out. She tried to get back inside, without success. The couple have two children who were then aged 5 and 3. The 5 year old boy opened a door and both children came outside.  Mrs Gandini found herself in a situation where she did not have her car keys or her wallet, and was still in her dressing gown and nightshirt. She and the children waited in her car in the carport for a long time.

   Dan had been seeing a psychologist named Michael Marriott. Eventually Mrs Gandini phoned Mr Marriott, said something to him about Dan's mental health deteriorating, and told him that he had barricaded himself in the property and locked her and the children out.  He suggested that she call the police.

   After that phone call, Mr Marriott phoned the Devonport Police Station and spoke to a police officer. He said that Dan was his client, that he had lost the plot and locked himself in his house, that he had armed himself, with a knife he thought, and that he was quite a paranoid individual. He said that Dan had become increasingly disturbed and paranoid and distressed, that he did not think he would harm his wife or his children, that they were all in the car, and that Dan had the keys to the car inside the house.

   Shortly after 9am Mrs Gandini phoned 000.  She told the operator that Dan had barricaded himself inside the house with weapons, that he was having a mental breakdown, that he had locked her and the children out of the house, and that she did not have her car keys and could not leave. 

   A little later a police officer phoned Mrs Gandini.  They spoke together for 14 minutes, by which time a number of police officers had arrived at the corner of her street. During that call Mrs Gandini said that Dan had knives, that he was talking about blowing up the shed, that he was really unwell mentally, and that he was probably going to kill people. She said that he had shut all the windows, locked all the doors, and locked all the gates so that she could not even get into the back yard.  She said that he had security cameras at the front of the house and would be watching. She quoted him as saying, 'I'll be ready for war if anyone comes to get me.'  The police officer told Mrs Gandini that police were coming in cars from Devonport, Latrobe, Sheffield and Railton. 

   The first police officer on the scene was Constable Ford. He arrived at 9.21am.  Mrs Gandini and the children walked to the corner of their street and met him and other officers there a few minutes later.  He asked Mrs Gandini a series of questions.  He found out that Dan was in the house alone, and that he had knives but no firearms. He asked whether there was any fuel or fertilizer in the house and Mrs Gandini said that both were there.  She did not know whether the fuel was diesel or petrol or what the fertilizer was. Constable Ford had grown up in the country and was familiar with a practice whereby farmers blew up tree stumps using a mixture of diesel fuel and fertilizer. He asked Mrs Gandini whether her husband had any mining experience, and she confirmed that he had.  Constable Ford formed the view that there was the potential of a man with mining experience using fertilizer and diesel fuel to cause an explosion.

   A very large number of police officers arrived at the scene. They all remained at a safe distance from the house. They formed a cordon around it. They got the residents in neighbouring houses to evacuate their homes.  Two officers took Mrs Gandini and the children to a local park where one of then commenced obtaining a statement from her.  The main road into Port Sorell was blocked. A police forward command post was set up. Road spikes were deployed in case Dan tried to drive away.  Officers with specialist qualifications as negotiators arrived and attempted to contact Dan.  Officers from the Special Operations Group arrived from Hobart, Launceston and Bicheno. The Bomb Response Squad and a drone operator also arrived.

   It took some time for the negotiators to make contact with Dan. He had no legal obligation to speak to them, and initially chose not to.  Ultimately there was some communication with him during the afternoon by telephone and by text message. He made it clear that he was not willing to come out of his house.

   As a result of information provided by Mrs Gandini and made known amongst the officers on the scene, police officers reasonably suspected that Dan had committed a family violence offence by assaulting Mrs Gandini. As a result they had the power to enter the premises where Dan was, search for him there, and arrest him, pursuant to ss 10(7) and 11 of the Family Violence Act 2004. Section 10(7) authorised them to use reasonable force.

   Mr Marriott, the psychologist, went to Port Sorell in the evening and spoke to Dan by telephone a number of times. Dan still would not come out of the house. Ultimately senior officers decided upon a plan to disable the security cameras, blow open the front door using a small explosive charge, and arrest Dan. At about 9.20pm four officers approached the residence and smashed the security cameras, using a ladder to reach the highest one. Shouting was heard from inside the residence. The explosive charge was placed at the front door. It was subsequently detonated.  There was evidence that Dan was known to be at a safe place inside the house when it was detonated, but Dan disputed that evidence saying that he could not be seen inside the house because all the blinds were down and the doors were closed.  After the destruction of the door Dan came through the front doorway and confronted four officers from the Special Operations Group. 

   Counts 4, 5, 6 and 7 alleged that Dan 'with intent to disfigure and/or do any grievous bodily harm and/or resist or prevent the lawful detention of himself, cast or threw hydrochloric acid and/or sulphuric acid which is a corrosive fluid' at the four officers.  There was a separate charge in relation to each officer. The jury found him guilty of all four of those charges.  Plainly they were satisfied beyond reasonable doubt that Dan threw a quantity of acid at the four officers, and that he intended at least one of the consequences pleaded in those charges.

   One of the officers, Constable Scott, who was standing at the front of the group, gave evidence that he saw Dan appear with a container and throw a liquid at them once, that some of the liquid went into his right eye, and that he could feel burning to his face, and that the vision to his right eye was severely impacted.  Two of the other officers said that they saw Dan throw the liquid at them, go back inside, return, and throw liquid at them a second time. The fourth officer, Senior Constable Bennett, did not give evidence of seeing Dan throw the liquid a second time, but he did say that he moved back with Constable Scott in case the liquid landed on him. I am satisfied beyond reasonable doubt that Dan threw a second quantity of liquid towards the officers.  However, of the two officers who described the second throw, one said that the liquid reached them and the other said that it fell short. I am not satisfied beyond reasonable doubt that the second quantity of liquid reached any of the officers.

   After throwing the liquid, Dan went back inside the house briefly, but then came back out.  Some officers fired projectiles that were described during the trial as "less lethal ammunition", hitting him and causing him to fall to the ground and sustain a minor injury. He was arrested and detained. Up to that point none of the officers had told him that they wished to arrest him for assaulting his wife.

   The four officers at whom Dan threw the liquid were all wearing protective clothing, including goggles, balaclavas, Kevlar sleeves, gloves, ballistic vests, and camouflage jackets.  They were carrying ballistic shields.

   Some of those items were damaged by the liquid that Dan threw. Parts of some items were burned or began to melt.  It is clear that the liquid thrown was a corrosive fluid, as alleged in the charges.  I need not make a finding as to whether it was hydrochloric acid, sulphuric acid or both.  The proposition that it was sulphuric acid appears to have originated from an entry in Constable Scott's hospital records.  Samples from the carport floor and the loungeroom carpet were analysed by a forensic scientist and determined by her to contain hydrochloric acid. An open container with a label saying 'Hydrochloric Acid' was found in the house, but its contents were not analysed. The weight of the evidence suggests that the corrosive fluid was hydrochloric acid.

   For sentencing purposes, I need to make findings as to what Dan intended when he threw the liquid. Each charge asserted three possibilities – 'intent to disfigure and/or do any grievous bodily harm and/or resist or prevent lawful detention'. Although Dan was in a very upset state, it must have been plain to him that the goggles and clothing worn by the four officers would make it very difficult, and possibly impossible, for the acid to cause them any physical harm. I think it far more likely that he was trying to scare them away when he threw the acid, rather than trying to disfigure them or cause really serious injuries. I will sentence on the basis that Dan apprehended that the officers were likely to be wanting to arrest and detain him, that such detention would have been lawful, and that he intended to resist or prevent his lawful detention by throwing acid at them. That is consistent with the verdict of the jury. Although the crime created by s 170(1) of the Criminal Code is called 'Committing an unlawful act intended to cause bodily harm', the wording of the subsection permits a jury to find a person guilty of that crime when that person's intention is not to cause bodily harm, but to resist or prevent lawful arrest or detention. It was however an ingredient of each of the four crimes charged that Dan cast or threw a corrosive fluid at a person."

5. On the six charges the appellant was sentenced to 3 years 6 months' imprisonment with effect from 24 March 2023.  He was not to be eligible for parole until he had served 21 months of that sentence.  

6. After hearing the appellant's oral submissions, supplementing what may be regarded as submissions contained within the notices of appeal, and a number of documents he had filed in support of two bail applications and the appeal itself, the Court dismissed the appeal without calling on the respondent. These are the Court's reasons for so doing.

Discussion

1. As can be seen, the two notices of appeal contain grounds ranging from a lack of jurisdiction on the part of the Court, errors of law on the part of the trial judge, jury misconduct and a conspiracy between the judge and the jury and counsel for the State. In addition, on the hearing of the appeal, the Court permitted the applicant to raise arguments about lack of evidence and fabrication of evidence by the appellant's wife and his psychologist and by police officers and about factual inconsistencies in the evidence, all of which would ordinarily be regarded as arguments that the verdicts were unsafe and unsatisfactory.

2. The Court also allowed the appellant to raise an asserted error of law on the part of the trial judge in directing the jury that police had the power to enter the premises where the appellant was, search for him there, and arrest him, pursuant to ss 10(7) and 11 of the Family Violence Act 2004.

3. A reading of the almost 1000 pages of the transcript of the trial satisfied the Court that the trial judge did not err in law or in the factual basis for his rulings made during the course of the trial, nor in his summing up or the memorandum that he provided the jury. In particular the Court was satisfied that the judge was correct in law when he directed the jury as follows:

   "Now, before I go there – before I go into self defence and defence of a dwelling house, I need to explain things to you about the police powers. In fact, this relates back to whether his – whether Dan's arrest and detention would have been lawful or was lawful if he was resisting an attempt to arrest and detain him. At this point, I'll take you to page three of the memorandum, and I need to give you some information about the Family Violence Act 2004.

   I've quoted from it in paragraph 13. The provisions that I've set out there in paragraph 13 give police officers in certain circumstances the power to enter premises and the power to arrest a person. So I'll just read out some provisions from s10 of the Family Violence Act, subsections (7), (7A) and (7B).

   If a police officer reasonably suspects that a person has committed family violence, the officer, without warrant and using such force as is reasonably necessary in the circumstances, may –

   (a)          enter any premises on which the officer reasonably suspects the person may be found; and

   (b)         search those premises for the person; and (c) arrest the person.

   (7A):                  

   For the purpose of exercising his or her powers under this section, a police officer may authorise any other person, including another police officer, to assist the police officer as is necessary in the circumstances.

   So four people can enter, search and arrest if there's a reasonable suspicion of family violence.

   (7B):

   A person authorised under subsection (7A) to assist a police officer may use such force as is reasonably necessary in the circumstances to so assist.

   Okay. The – so the first question, or the first thing that needs to be considered, if you look at the beginning of – the early words of subsection (7). 

   If a police officer reasonably suspects that a person has committed family violence –

   Then certain things can happen. Now, what's family violence, all sorts of things constitute family violence. If a man assaults his wife that's family violence for the purposes of the Family Violence Act. You don't need to know anything more about what else might constitute family violence. So the – if a police officer suspected that Dan had assaulted his wife and if that suspicion was reasonable then there's a power of entry and a power of arrest and no need for a warrant. But the amount of force used must be no more than is reasonably necessary.

   Now there's another provision in the Family Violence Act that I refer to in par 14:35.

   Where a police officer reasonably suspects that a person has committed family violence, the officer my arrest that person without a warrant.

   That's s 11 subs(1). So it's again a question of whether an officer suspected that Dan had assaulted his wife and if so whether that suspicion was reasonable.

   Paragraph 15 deals with provisions in the Family Violence Act about what may be done with a person who has been arrested:

   When a police officer has arrested a person without a warrant in relation to a family violence offence, that person may be detained for various purposes including determining any charge or charges that should be laid, carrying our a risk screening assessment, or bringing the arrested person before a court.

   So obviously if the police were going to arrest they were going to detain him, for some length of time, doesn't matter how long. So the question is, if you come back to that point about resisting lawful detention, was it his intention to resist arrest and detention was the anticipated arrest and detention 'lawful arrest and detention'? It was lawful if there was a reasonable suspicion that he'd committed family violence. Now the evidence is that Catherine Gandini gave details of what had happened including the glass of water incident to Senior Constable Bobby Gray. He passed that information on. Officers said that they had beliefs or suspicions about him having committed family violence. It's open to you to infer that they were aware of at least the fact that there was an allegation of an assault, if not the details of the assault – if not three assaults. But then that would warrant – that would allow one or more officers, without force – sorry, without warrants, and using no more force than was reasonably necessary, to enter onto the premises. Now I'm not talking about the blowing up of the door. You might very well conclude that that was going too far, that that was not reasonably necessary. But these four charges relate to an incident in the garage. They don't relate to entering into the house. I keep calling it a garage – it's a carport.

   Dan has been explaining from time to time through the trial that the High Court has said things about people going onto private property and that he's put up a sign that makes a difference to that. And he was right. If you think about it, anybody who lives in a house with a front door that's set back from the front boundary is the owner of private property. Generally speaking, visitors to a house are welcome to walk up to the front door and knock on the door, and the law about that, going back centuries, is that as a general rule, visitors to a residence have what's called an implied licence, in other words, implied permission from the owner or occupier to walk up to the front door for – if they're there for lawful purposes. The same applies if you making a three point turn and you need to turn into someone's driveway and drive the front of your car a little way into their driveway in order – a little way onto their property in order to complete your turn. There's an implied permission, or an implied licence that allows you to do that. But, its private property, and that means that the landowner can put up a sign making it clear that the usual situation doesn't apply, and that's what Dan's done. His sign tells visitors that they're not allowed past the front boundary without permission. But the Family Violence Act supersedes any such arrangement. The Family Violence Act overrides the ordinary common law rights of a landowner to the extent that the provisions that I've explain – that I've set out in this memorandum, in certain circumstances, give police officers to enter premises, to enter upon premises, and arrest a person who's reasonably suspected of committing a family violence offence.

   So, if the four officers reasonably suspected that – or if the four officers or their ringleader, for want of a better word, or that their lead officer, commanding officer – if the – if there was a belief that Dan had committed family violence by assaulting his wife, or of suspicion that he'd assaulted his wife, and if that suspicion was reasonable, then those men, if they were intending to arrest him, had the lawful right to go into the carport without a warrant and to arrest him there. So it's a matter for you. Was he intending to resist lawful arrest and detention?"

1. There can be no question but that the Court had jurisdiction to try the indictment and that the appellant was lawfully in charge of the jury, and the assertions as to jury misconduct and a conspiracy between the judge and the jury and counsel for the State are simply without any foundation on the record of the trial or in any evidence before this Court. In so saying the Court has not lost sight of the following exchange between the appellant and the trial judge:

   "HIS HONOUR: Now, I understand that there are, there were two or three jurors running late, but as there's something to discuss I thought I'd sit first and see how we go when we're finished discussing. Before I invite submissions there's one thing I need to say and that is that one  of the diagrams that was tendered where a witness was asked to draw the positions of people was drawn on a piece of paper that had typing on the other side. I've directed my Associate to substitute a photocopy that will go to the jury so that whatever was on the other side they don't see. Now, Dan, I believe you wanted to raise something? 

   ACCUSED: Yeah, a couple of things. You haven't brought up that governor, Governor Green that you work for, you haven't brought up his dependency. So, I'm not dependent on Governor Green. Obviously, you're one of his dependencies. I don't work for your  company. So, I need a list of who his dependencies are. So that's part of my argument because that's part of your authority and he only gives you authority to work in your streams and estuaries.

   There's also the name, so, identification. You've decided to capitalise on my name on this memorandum. That's not my name, and there's fraud in that document. Now this is part of my argument that the instruments that's been used by the State, the documentation have a name on there that's similar to mine, but it's not my name and it's already been proven in an affidavit. Now you're attempting to overrule something that already stands as truth in law, the State's brought no evidence to counteract that affidavit. So I'd appreciate that the State of Tasmania v Gandini, that name's not my name, okay, so on the indictment it has to be made clear of identification purposes, that the ID that they've used, part of my argument, it's not my identification.  So it's actually not me and the State's provided no evidence of identification accept for hearsay through a system that they have that other people have put evidence on. So there's been no evidence of identity and I've provided evidence that the State's wrong who they believe I am. 

   HIS HONOUR: Alright, first of all the only reason I mention Sir Guy Green, is that he was the Governor in the year 2000 and he swore me in when I became a judge. I don't know what you're referring to when you request a list of his dependencies. He's a retired Governor, he hasn't got any dependencies in any sense that are in any way significant. So I won't be giving you a list.

   ACCUSED: Well I'm only going off what you give me as evidence that you had some sort of authority, and this is who gave you authority, some Governor Green. And you said he's – the piece of paper that you gave me, was you have authority over his dependencies. So I don't know who his dependencies are, I'm not his child and I'm not ward of the State. So you're claiming you have authority over Governor Green's dependencies, I'm not his dependencies. The State's provided no evidence that I am dependent on Governor Green, in fact it's the opposite way around. The corporate state of this land that's taken over, I'm on Palawa land at the moment, has come and seen me each fortnight. And then each year they took over 60 thousand dollars, so you were actually dependent on me, okay. So I'm not dependent on anyone, so whoever his dependencies are, you need to provide them. They provided no evidence that I'm dependent on this Governor Green and obviously he's someone whose on your ship, so you only have authority over people who are on your ship, in your estuaries, 'cos you're on external territory at the moment, you're in Palawa country, okay and I'm a diplomat of Palawa country. So you know that and you had no authority to come on to land and kidnapping.

   Now you're using presumption that you have some sort of authority in Palawa country, but you only have authority in the State of Tasmania, which is your corporation. So you have authority, and I don't mean any disrespect, you have full authority over your employees of your company. I completely give you that. But for me I'm not an employee of your company and Governor Green, obviously he only has dependencies which is part of his company, and you are only meant to be looking after his dependencies. And I have no authority –

   HIS HONOUR: Well look – look I'll interrupt you, you're not going to persuade me – you're not persuading me to change my mind. I'm going to tell the jury that this is a properly constituted Court and if you want to tell them otherwise, I won't try to stop you, but I'm going to tell them that this is a properly constituted Court and that they have to apply the law as I explain it to them, and I'll tell them that although you don't acknowledge that you are – you have the name Daniel Victor Gandini, the char – the State has charged somebody and that the State says that you're the person who's described in the indictment as Daniel Victor Gandini, and that they should proceed on the basis that that name is intended to refer to you, or –

   ACCUSED: That's presumption that I've already rebutted, so – 

   HIS HONOUR: Well –

   ACCUSED: - that's the problem.

   HIS HONOUR: - you can – I'll let you tell them that, but I'm not going to give rulings along the lines that you've –

   ACCUSED: So, you're going to assist the – HIS HONOUR: - you're seeking from.

   ACCUSED: - you're going to assist the State, so that's what you're doing, you're assisting the State with evidence that I've already provided to contradict what they're saying, and then you're going to assist them – that's what you're doing, you're assisting the State, you're working with another arm of government to overthrow a lawful thing that I've put in place to show you facts, and then you're going to overthrow those facts with delusions.

   HIS HONOUR: Well, if you want to tell the jury that, I'll let you, but it– ACCUSED: Thank you.

   HIS HONOUR: - you better – I don't agree."

2. It is accepted that one juror declared a potential conflict after he had sat for about a week of the trial, but he was excused and the jury inquired of in a perfectly familiar and proper way, as the following passage from the transcript demonstrates:

   "HIS HONOUR:  I've received a note from a juror named Craig Ellis. Would you stand up please, Mr Ellis? It appears that Mr Ellis is acquainted with the wife of the next witness, and I've decided that I'll be very cautious about this and I'll discharge him from service on this jury and at this sittings, so, Mr Ellis, you're discharged. I ask you to leave your seat, go back to the jury room and you're free to go, you don't need to return, thank you.

   JUROR: Thank you, your Honour.

   HIS HONOUR: I'll just ask the remaining members of the jury panel, have any of you spoken to – have you been told anything by Mr Ellis that might have any impact on your decision in this case? If so, raise one hand. There are no hands. Alright, we'll continue. Mr Sherriff?"

3. As to the appellant's arguments about lack of evidence and fabrication of evidence by his wife and his psychologist and the police officers involved, and about factual inconsistencies in the evidence, these are all the result of assertions by the appellant, all of which were either before the jury whose obvious findings cannot be regarded as perverse, or they involve mere suspicion and speculation on the part of the appellant, as in the case of the content of the telephone call between the appellant's wife and Mr Marriott, or the existence of any conspiracy between them to fabricate the allegations against the appellant.

4. Overarching all of this is that even if there were inconsistencies and or prior inconsistent statements in the evidence of some witnesses, these were all exposed to the jury and were questions for the jurors to determine. And even if the trial judge erred in any evidentiary ruling in any way asserted by the appellant, no miscarriage of justice could have arisen in this case. The clearly admissible evidence of guilt against the accused was completely overwhelming.

ANNEXURES AS REFERRED TO IN PARAGRAPH 3
NOTICES OF APPEAL DATED 25 AND 28 JUNE 2024