Heapes v The Queen
[2000] TASSC 77
•28 June 2000
[2000] TASSC 77
CITATION: Heapes v R [2000] TASSC 77
PARTIES: HEAPES, Noel Christopher
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 17/2000
DELIVERED ON: 28 June 2000
DELIVERED AT: Hobart
HEARING DATE: 2 June 2000
JUDGMENT OF: Cox CJ, Slicer, Evans JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Miscarriage of justice - Power to dismiss appeal where no substantial miscarriage of justice - Particular matters - Whether miscarriage of justice caused by failure of defence counsel to place psychiatric report before sentencing judge and dispute particular facts asserted by the Crown.
Criminal Justice (Mental Impairment) Act1999 (Tas), Pt 2.
Aust Dig Criminal Law [951]
REPRESENTATION:
Counsel:
Appellant: D J Porter QC, R Mainwaring
Respondent: T J Ellis
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 77
Number of paragraphs: 23
Serial No 77/2000
File No CCA 17/2000
NOEL CHRISTOPHER HEAPES v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
SLICER J
EVANS J
28 June 2000
Orders of the Court:
Appeal dismissed.
Serial No 77/2000
File No CCA 17/2000
NOEL CHRISTOPHER HEAPES v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
28 June 2000
The appellant pleaded guilty to one count of arson and was sentenced to imprisonment for nine months. He is a 65 year old man presently married for the fourth time and the house which he substantially destroyed by fire in August 1999 had been jointly owned by him and his estranged third wife. The sole ground of appeal, as amended, is that:
"there has been a miscarriage of justice in that the appellant's counsel at the sentencing hearing failed to:
aPut before the learned sentencing Judge material relevant to sentencing contained in a psychiatric report in respect of the appellant;
b [Abandoned];
c Dispute particular facts asserted by the Crown."
There is a dispute as to the circumstances which occurred immediately prior to the occasion on which the appellant appeared for sentence and a plea in mitigation was presented. It is unnecessary, in my view, to make precise findings as to these circumstances because on any view of the facts, no miscarriage of justice has been demonstrated. For present purposes, however, let it be assumed that his contentions have been established.
The appellant was at all material times fit to plead to the indictment. His counsel on the appeal eschewed any suggestion that he was not. When giving evidence before this Court, he exhibited no signs of any disability to plead, nor of any disordered thought. On his own admission, he had brought combustible material procured from the local tip into the house over a period of four days prior to setting fire to it. A few days before he did so, orders had been made in the Family Court concerning the disposition of the joint property. This was subject to a mortgage, but because the appellant's former wife had failed to meet her commitments and because he was unable to pay her share in addition to his own, the mortgagee had procured an order for possession. He told the police that he felt resentment towards her, that prior to lighting the fire he had obtained rubber tyres from the tip and drums of cooking fat which he distributed around the house, and that he had smashed some walls and punched holes in the ceiling because he wanted the property to burn. He also said he had bought two 10 litre containers of diesel on the morning of the fire and had splashed it around before setting it alight. Fire investigators found 25 metal drums in various rooms of the house and the remains of tyres. The fire was started by him at about 9am.
The appellant's then solicitor arranged for him to be examined by a psychiatrist shortly before the day he was to appear in the Supreme Court for sentence on 18 February 2000. The solicitor sought a report as to whether the appellant "was suffering from diminished responsibility, emotional stress and anxiety due to the financial situation and Family Court proceedings". It was pointed out that he had no previous convictions and "no psychiatric history". In his report delivered on 17 February 2000, the psychiatrist ventured the following remarks:
"At the outset I must state that the records of his recent history are chaotic. He was a 65 year old, four times married man.
HISTORY
…
The history of the night [sic] of the alleged offence is much as written elsewhere. He decided, very much on the spur of the moment, to burn down his (and his third wife's) property. He told me that quite spontaneously he decided to burn the house down, whatever the consequences (he was very unsure of the consequences). He made sure that there were no children about (waiting until the school bus had left), then made sure there was no-one around so that he could burn the house down without anyone else being injured.
Having lit the fire the course of events are confusing, but what seems important is that -
a)he intended ringing the insurance company to ensure that they knew he was not acting in an illegal way,
b) he waited for emergency services to arrive,
c) he seems to have co-operated with the police in their interview
and
d) he was very forthcoming in his interview with me.
…
MENTAL STATE EXAMINATION
He was a bland, but helpful older man with no evidence of major psychiatric disorder. He was very casually dressed with some evidence of self-neglect.
PHYSICAL EXAMINATION
This is a crucial area with this man.
He exhibited the following -
a) Moderate impairment in recall and memory which is reliably testable.
b) Marked impairment in new learning - testable by several reliable tests.
c) Mild impairment in concentration - again with reliable testing.
d) He showed frontal lobe impairment as evidenced by
i) inability to sequence/formulate new information,
ii) a loss of finger abduction power.
iii) complex tests of new learning were performed really poorly.
In summary, these are the findings of either early dementia or alcohol damage (he tells me he has never been a heavy drinker).
Otherwise, he was neurologically intact.
FITNESS TO PLEAD
You would know this is a fairly easy hurdle, but it was with some difficulty I was able to understand his understanding of instructing counsel, the role of a judge/magistrate, the role of a jury and the meaning of guilty vs innocent pleas. I must say he is a borderline case, despite the ease of the test and therefore I would tend toward the opinion he is not fit to plead.
OPINION
1He has a chaotic background.
2He suffers a mild dementia which understandably accounts for -
i)his chaotic history giving,
ii) his chaotic behaviour on the day of the alleged offences.
3As mentioned, he is a borderline case with respect to fitness to plead. I would hate to see this opinion worsen his circumstances.
4There is a clear relationship between his dementia and the alleged offence. This relationship is that he is no longer able to think clearly and come up with effective solutions. He therefore acts on a much more 'childlike' basis - as is common with dementia and comes up with what seems a simple response (perhaps at the time, but inexplicable to him at a later date).
5I have carefully read the transcript of the police video interview with him and this certainly confirms my medical view.
6He needs intensive investigation and treatment by a geriatrician/geriatric psychiatrist.
7It [sic] see no advantage in this man receiving any severe penalty. He should be regarded as ill and treated accordingly - by that I do not mean the Risdon Prison Hospital which would, in my opinion, be major overkill."
Not unnaturally, the solicitor sought some clarification and pointed out (inter alia) that the appellant's statements to the psychiatrist concerning the spontaneity of his actions differed in a number of respects from those he had made to the police. The same day, the psychiatrist wrote a further letter to the appellant's then solicitor in the following terms (omitting formal parts):
"Thank you for your urgent fax regarding my timely but very well thought out report.
It seems to me that you are nursing the point. Of course he is going to give an inconsistent history in that he suffers early DEMENTIA
So when you point to inconsistencies in his history to me, you, the police etc, it would be highly surprising if they matched.
He may well have told the police, as you point out, that he smashed holes in the ceiling, had rubber tyres and used cooking fat (in fact, there is evidence he used diesel fuel). I cannot believe that this man was able to manipulate 20 drums of anything.
Hence, in summary, I want to make it very clear that my very considered opinion is that this man has early dementia.
As such - 1) his history is unreliable,
2) his behaviour will be unreliable.
Further, the transcript I have seen of the video interview was very superficial in nature (which is why I asked to view the video itself).
I am not sure why you have asked me for a further opinion. I will make it as clear as possible.
1 He is unable to plead.
2 He suffers dementia.
3From all the history I have, I have no trouble in giving the opinion that his alleged offence was due to his dementia.
4 Clearly ongoing investigation and treatment is necessary.
5 Incarceration of such an individual would be cruel.
I cannot state my opinions more strongly than this. Clearly you have a problem with different histories being given. This is explained by his dementia.
Should there be any further queries, please do not hesitate to contact me further."
On 18 February 2000, the appellant and his present wife attended the office of his solicitor. According to him, she told them that she had a report from the psychiatrist, that it was a good report and that it was in his favour. She asked if he wished to read it then, but he declined and said he would read it later. He went ahead of her to the court with his wife and met his solicitor there. Shortly before the case was called on, she approached him in the foyer and said, "I have some bad news, and that if we use the report the prosecution will challenge it". His affidavit continued:
"10 … [The solicitor] looked shellshocked. She appeared subdued and had a funny pallor. I said, 'so it won't finish today,' to which she said, 'it will have to go before a jury of 11.' I was very confused. Firstly, I had already pleaded guilty in the Magistrate's Court, and had signed a document to say that I was guilty and believed that my case would proceed as a plea of guilty. I was also confused because I always believed that a jury had twelve members, not eleven. Further, I was particularly stressed and nervous at the time as a result of the matters set out in paragraph 7 above.
11 The conversation with [the solicitor] outside the court was very, very brief and occurred in pressured circumstances.
12 Having informed me of the prospect of the Prosecution challenging the report, [the solicitor] said, 'what do you want to do?' I said, 'that's what I've got you for. To advise me. I don't know what to do.' Just as I said this the case was called on and [the solicitor] said quickly, 'what do you want to do?' The bailiff was calling me into the court. I had no time to decide and did not know what to do. I told [the solicitor] I did not know what to do. The door of the court was open and I could see the judge waiting for me. [The solicitor] said, 'It's up to you.' I said, 'get it over with.'
13 As a result, I walked in and stood in the dock and the case proceeded with the Prosecution telling the judge about the crime and [the solicitor] speaking on my behalf.
14 I told [the solicitor], 'get it over with,' because I did not want to have a trial before a jury. I wanted to plead guilty. I understood her as telling me that if the report was used there was going to be some sort of trial. I very much wanted to plead guilty and to put this matter behind me.
15 At no time did [the solicitor] tell me that it would be possible to apply for an adjournment in relation to the content of the psychiatric reports. At no time did [the solicitor] tell me why the Prosecution were going to challenge the report. The only options given to me were to proceed without the reports or to have some sort of hearing before a jury of eleven.
16 Neither on that day (18th February) nor previously did [the solicitor] make reference to 'unfitness to plead'. As far as I can recall I had never heard of the term before."
In par 7, the appellant said:
"From the time I was charged until the time of sentence I was extremely anxious. This was made worse, for me, because my wife, Anne Heapes, was in very poor health with a heart condition and diabetes. The pressures of my separation from my former wife, together with the prospect of imprisonment caused me to feel particularly anxious."
In an unchallenged affidavit, Principal Crown Counsel, Mr Jacobs, affirmed that on 18 February 2000 he was present in the Supreme Court assisting Mr Lodge, a junior Crown counsel, who had carriage of the file in respect of the prosecution against the appellant for arson. Mr Lodge showed Mr Jacobs a report prepared by the psychiatrist and thereafter Mr Jacobs approached the appellant's then solicitor and asked to speak to her in the Crown rooms. He gave her a copy of the Criminal Justice (Mental Impairment) Act 1999 and photocopied the report. He advised her that in his opinion the judge would not proceed to sentence if the report was tendered, but would have to refer the appellant's fitness to plead to a jury. He pointed out a number of relevant provisions in that Act. He advised the appellant's solicitor that the Crown would attempt to assist in whatever way she wanted and raised the possibility of getting an adjournment to seek advice from a senior practitioner or getting a second psychiatric opinion. As to the latter option, the appellant's solicitor said words to the effect that Legal Aid would not fund it, whereupon Mr Jacobs told her that the Crown would pay for the report, if necessary. She told him that her client was very keen to get the case finalised that day. Having discussed the possibilities of her not tendering the report with Mr Jacobs, she told him that she would obtain instructions. He saw her then talk to her client and again saw her talking to the appellant about five minutes later. She then came to Mr Jacobs and said that the appellant wished to proceed that day and that she was not going to tender the report. Mr Jacobs affirmed that the Crown would not have opposed an adjournment had one been asked for.
In the course of Crown counsel's statement of the facts to the Court, he submitted that the crime was "the culmination of a fairly significant Family Law dispute" and said that the appellant's third wife "has instructed us that after this fire the accused rang her up on a number of occasions, he gloated over what he had done." The allegation of gloating did not appear anywhere in the Crown papers which had been supplied to the appellant and his solicitor and it was not challenged by the latter at the hearing. The appellant claims "if she had asked me about it I would have told her to challenge what the prosecution had said, because I never gloated to my former wife about burning down the house. I tried to attract her attention in Court, but she waved me off".
In the course of the plea in mitigation, no reference was made by the appellant's then solicitor/counsel to the psychiatrist's report and subsequent letter. At the conclusion of the plea, the appellant was remanded in custody until 22 February 2000, when sentence was pronounced. His Honour's Comments on Passing Sentence are as follows:
" … you have pleaded guilty to one count of arson. In August last year you set fire to a house at Scamander. The damage caused by the fire was $130,000. The property was jointly owned by you and your former wife. For some considerable time you and your former wife had been engaged in acrimonious litigation in the Family Court with respect to a property settlement. There was a dispute over the price for which the Scamander house should be sold. Your wife stopped paying her share of the mortgage instalments, and as you could not afford to pay her share as well as your own, the arrears mounted and this led in turn, to the mortgagee obtaining an order for possession of the premises. I find that you considered that you had been treated unfairly and became enraged. You decided to burn the house that was jointly owned as some sort of act of vengeance. You acquired rubber tyres and accelerants. You punched holes in the ceiling so that the fire would spread quickly. You spread the tyres and accelerants around the house and set it alight.
I accept that there was no intention to commit a fraud and that no person was injured. The object of the criminal exercise was to spite your former wife. Indeed, since the event you have gloated to her over your crime and the financial hardship that it has caused her.
You are 65 years old and without prior conviction. However, arson is always regarded as a serious crime even in cases where there is no risk of injury or death and no intention to defraud another. That you were embittered over the matrimonial dispute is no excuse for the commission of this crime by which you intended to cause your former wife financial loss.
The order of the court is 9 months imprisonment to date from 18 February 2000."
Under the Criminal Justice (Mental Impairment) Act 1999, Pt 2, which was proclaimed to commence on 1 November 1999, the relevant sections provide:
"8 (1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired or for any other reason, the person is -
(a) unable to understand the nature of the charge; or
(b) unable to plead to the charge or to exercise the right of challenge; or
(c ) unable to understand the nature of the proceedings; or
(d) unable to follow the course of the proceedings; or
(e) unable to make a defence or answer the charge.
…
9 (1) A person's fitness to stand trial is to be presumed unless it is established, on an investigation under this Part, that the person is unfit to stand trial.
(2) The question of a person's unfitness to stand trial is to be determined on the balance of probabilities.
…
10 (1) A court before which a person is charged with an offence may, on the application of the prosecutor, the defendant or on its own initiative, reserve the question of the defendant's fitness to stand trial for investigation under this Part.
…
12 (1) In the case of proceedings in the Supreme Court, the question whether a defendant is fit to stand trial must be determined by a jury."
Had the report and letter been tendered, there was a high degree of probability that the judge would have ordered the issue of the appellant's fitness to plead to be tried. It was not a practical proposition for the appellant's counsel to edit the report so as to delete reference to the psychiatrist's admittedly gratuitous opinion about that issue; nor, in my view, would it have been proper to suppress the strongly-expressed subsequent letter and attempt to play down the somewhat tentative opinion on that issue initially expressed in the report itself. To have done so would have been misleading. There were, in effect, only three options open:
(i) to rely on the psychiatric opinion and tender the report and letter;
(ii) to go on without referring to the psychiatrist's opinions; or
(iii)to seek an adjournment to procure another psychiatrist's opinion or to ask the psychiatrist to modify his opinion in the light of the known facts.
Each course required the authority of the appellant. It is clear from his own evidence that he did give authority for the second course and declined the first course because he wanted the matter resolved that day and was afraid, with good reason, that the tender of the report would cause a delay. On his version of events, the third option was neither explained nor given to him. Nothing has been put to this Court to suggest that had the third option been adopted, his position would have improved in any way. No further report is suggested to be in existence which avoids the risk of an enquiry into his fitness to plead but which advances psychiatric material which might reduce his culpability for the crime committed. Assuming that the references in the psychiatrist's report to his unfitness to plead were removed, the remaining opinions were of little value in this respect. They were based on a number of premises which were demonstrably untrue. The appellant's actions were not spontaneous. He had prepared the house for destruction by fire over several days and for that purpose had placed in the house a large quantity of flammable materials which the psychiatrist was not prepared to accept it was within his physical capacity to move. The psychiatrist, in his subsequent letter, seems to treat the appellant's claim to have done so as evidence of his dementia. The value to this Court in assessing the weight of those opinions is itself reduced by the fact that his opinion as to the appellant's fitness to plead is also demonstrably wrong and by the fact that the appellant places no reliance on it. In my opinion, beyond the fact that the appellant may have lost the chance to seek and, if found, put some other and persuasive psychiatric material before a sentencing court by not being given the option of applying for an adjournment, his counsel's failure to explain that option to him has not caused any miscarriage of justice. There is nothing in the psychiatrist's opinion which suggests to me that any less sentence than the modest nine months' imprisonment the appellant received was appropriate in the circumstances.
As to the failure to challenge the Crown prosecutor's claim of gloating, a point on which the learned sentencing judge remarked when passing sentence, I acknowledge that if the appellant's contentions are correct, his counsel ought to have sought specific instructions. In some cases the failure to do so may result in a miscarriage of justice which an Appeal Court should rectify. Nevertheless, the Crown papers placed before the learned sentencing judge, including a written statement of facts in which reference was made in its entirety to the record of interview conducted by the police with the appellant on the day of the fire, disclosed that the appellant's actions were largely motivated by a desire to spite his former wife and "to even the score". In these circumstances, his Honour's observation that the appellant had gloated to her over the crime might well be seen as merely confirming that that was the appellant's objective rather than as an aggravating circumstance in its own right. If any miscarriage of justice resulted from counsel's failure to challenge the statement, the consequence would be that this Court should pass sentence. For my own part I consider that a sentence of no less than nine months' imprisonment is appropriate, taking the appellant's case at its best. Accordingly, I see no reason for this Court to intervene. In my opinion the appeal should be dismissed.
File No CCA 17/2000
NOEL CHRISTOPHER HEAPES v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
28 June 2000
I have had the advantage of reading, in draft form, the Reasons for Judgment of the learned Chief Justice. I agree with both his reasoning and conclusion. I would dismiss the appeal.
File No CCA 17/2000
NOEL CHRISTOPHER HEAPES v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRMINAL APPEAL
EVANS J
28 June 2000
The appellant seeks an order setting aside a sentence of nine months' imprisonment imposed upon him on his plea of guilty to a charge of arson. It is contended that there has been a miscarriage of justice as the appellant's counsel, at the sentencing hearing, failed to:
(i)take reasonable steps including the seeking of an adjournment in order to put before the learned sentencing judge material relevant to sentencing contained in a psychiatric report in respect of the appellant; and
(ii)dispute particular facts asserted by the Crown.
In order to deal with the appeal, I do not find it necessary to resolve a conflict in the evidence about what took place in discussions between the appellant and his lawyer, Ms Mahindroo, prior to the appellant being sentenced. I proceed on the basis of the most favourable view I can take of the evidence in the interests of the appellant.
On the morning of the day of the appellant's sentencing, he called at Ms Mahindroo's office. She told him she had received a report from Dr Weidmann, a psychiatrist who had examined the appellant. She said the report was good and in the appellant's favour. She asked him if he wanted to read it. He said he would read it later. He did not in fact read the report prior to the sentencing hearing, although there was ample time for him to have done so, as he waited at the court for his matter to be called on.
Dr Weidmann's report was to the effect that the appellant suffered from mild dementia and this accounted for his chaotic behaviour on the day of the arson offence. Dr Weidmann also reported that he tended towards the opinion that the appellant was not fit to plead. Before this Court, the appellant, by his counsel, refuted that suggestion. Having observed the appellant give evidence, I am in no doubt of his fitness to stand trial now and at the time of his sentencing.
It is clear from the evidence of the appellant, his wife and Ms Mahindroo, that the appellant did not want any delay in the finalisation of his sentencing. In these circumstances, Dr Weidmann's report presented Ms Mahindroo with a dilemma as to the use, if any, she should make of it for the purposes of the sentencing hearing. Dr Weidmann's opinion could assist by providing a basis for mitigating the appellant's conduct because he suffered from mild dementia which diminished his responsibility for the offence. However, if the sentencing judge was made aware of Dr Weidmann’s concerns about the appellant’s fitness to plead, it was likely that the hearing would be adjourned to enable that issue to be explored. Once raised, that issue could not have been ignored. It is almost inevitable that the sentencing judge would have required further information and that this would have necessitated an adjournment. The sentencing judge could only accept the appellant's plea of guilty if satisfied that no reasonable jury, properly instructed, could find the appellant unfit to stand trial; Kesavarajah v R (1994) 181 CLR 230 at 245 and R v Enright [1990] 1 Qd R 563. Unless so satisfied, it was incumbent upon the sentencing judge to refer the question of the appellant's fitness to stand trial for the determination of a jury pursuant to the Criminal Justice (Mental Impairment) Act 1999. To have done otherwise would have provided the appellant with a good ground for challenging his conviction if he was not content with the sentence imposed on him.
Whilst it is unclear precisely what Ms Mahindroo explained to the appellant in relation to the predicament presented by Dr Weidmann’s report, I am satisfied that she made him aware that if the report was used there was a risk that the matter would have to go before a jury and the hearing would not finish that day. The appellant made it plain to Ms Mahindroo that in those circumstances he did not want her to use the report as he did not want any delay. He told her to "get it over and done with".
Ms Mahindroo did not explore with the appellant the possibility of having the hearing adjourned in order to obtain further medical advice or investigate other means of putting Dr Weidmann's evidence of the appellant's mild dementia before the court. I am satisfied that nothing flows from this. The appellant had, in effect, told Ms Mahindroo he would not contemplate an adjournment of the hearing.
Ms Mahindroo could have used Dr Weidmann's report by reading selected parts of it. Had she taken that course it is likely the sentencing judge would have requested a copy of the report, in which case, there was a real risk the hearing would be delayed in order to investigate the appellant's fitness to plead. If Ms Mahindroo had taken this course, she would have gone against the appellant's instructions to get the matter over with.
The mitigatory aspect of Dr Weidmann's report is his opinion that the appellant suffered from mild dementia and that this explains his behaviour on the day of the arson. The weight to be given to that opinion is diminished as it is based on information that the appellant decided quite spontaneously to burn down the house. That information was incorrect. The evidence is that the appellant planned the arson several days prior to effecting it. Three to four days before setting fire to the house, the appellant punched holes in the ceiling and the walls and pulled out Gyprock so as to assist the fire to spread quickly. He placed rubber tyres and about 20 drums of cooking fat, which he obtained from the tip, throughout the house. Shortly prior to setting the house alight, he purchased diesel fuel which he splashed around inside. It is also pertinent that Dr Weidmann's opinion is open to challenge on the basis that his diagonosis of mild dementia underpins his view about the appellant's want of fitness to stand trial. The appellant refutes any query about his fitness to stand trial. As already mentioned, having heard him give evidence, I am in no doubt about his fitness. This further reduces the weight likely to be given to Dr Weidmann's opinion. In my view, its mitigatory impact is slight. Had the report been the genesis of a more substantive reason for lessening penalty, it may have been appropriate for Ms Mahindroo to disregard the appellant's desire to get the sentencing over with and endeavour to persuade him to agree to an adjournment of the proceedings in order that she could explore appropriate means of putting evidence based on the report before the court. No miscarriage of justice arises from her failure to take that course in the present circumstances. As the potential impact of the mitigatory information was slight, it was appropriate for her, consistent with her client's instructions, to press on with the hearing. Ordinarily, it can be said that a client receives a fair hearing when his or her counsel takes a forensic course consistent with the client's instructions; R v Arundell [1999] 2 VR 288 at 240 - 241 and 249 - 250.
The accused and his estranged wife, Mrs Heapes, jointly owned the house he destroyed. His offence was, in part, an act of revenge against her. In the course of stating the facts to the court, counsel for the Crown said he was instructed by Mrs Heapes that after the fire the appellant had telephoned her on a number of occasions and gloated about what he had done. No notice of this assertion had been provided by the Crown to the appellant. On behalf of the appellant, it is contended that this led to a miscarriage of justice as he wanted to challenge the assertion and was unable to attract his counsel's attention in order to do so. This contention is without merit. The appellant was not sentenced immediately after counsels' submissions. He was remanded in custody to reappear four days later to be sentenced. There was ample time for him to raise his wish to challenge this evidence with his counsel before he was sentenced. His counsel visited him at the remand centre. There was no evidence to suggest that he raised his concern about the evidence with her. It is also germane that the appellant has not established that he could successfully deny the gist of the Crown's assertion that he gloated to Mrs Heapes. Ms Mahindroo gave evidence that the appellant told her he telephoned Mrs Heapes and said "You lose again." The appellant acknowledges that such a telephone conversation took place but sought to explain away the gloating connotation of the words used by relating them to the outcome of their Family Court proceedings. His evidence about this was unconvincing. In the circumstances, I am not persuaded that the Crown's failure to provide the appellant with notice of the gloating assertion resulted in a miscarriage of justice.
I would dismiss the appeal.
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