R v Atallah
[2001] VSCA 194
•30 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 355 of 2000
| THE QUEEN |
| v. |
| CHARBEL ATALLAH |
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JUDGES: | WINNEKE, P., ORMISTON and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 24-25 October 2001 | |
DATE OF JUDGMENT: | 30 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 194 | |
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CRIMINAL LAW – Conspiracies to traffic in amphetamines and ecstasy – Ruling that co-conspirator’s acts in furtherance of conspiracy admissible against applicant – Judge directs jury that he has made “that decision on the balance of probabilities” – Whether such statement improper – Whether directions sufficient – Answer to jury question whether applicant would have called a named co-conspirator as a witness – Consequence of ambiguous answer.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr O.P. Holdenson, Q.C. | Lewenberg & Lewenberg |
WINNEKE, P.:
I agree, for the reasons given by Ormiston, J.A. that this appeal should be allowed, the conviction quashed and a new trial ordered.
ORMISTON, J.A.:
This application raises similar issues to those just dealt with by the Court in R. v. Bacash[1]. The trial judge was the same judge who presided in Bacash and who again made a ruling in accordance with Ahern v. The Queen[2], which itself is likewise not here challenged, but again he referred in his charge to the jury to the substance of his ruling in somewhat similar terms to his discussion of his ruling in Bacash.[3] Moreover the events which formed part of the Crown case in this trial had a considerable similarity to those considered in Bacash in that the principal participant, at least the person who appears most frequently both on tape recordings and on surveillance as taking the role of what seems to have been a go-between was again one Lababidi. The police covert operative “Tony” and the informer Emilio appear likewise to have been the same persons engaged in the alleged dealings over a period covering about five weeks, the counts in the present case comprehending a period from 14 September 1998 to 9 October 1998. Again there were two accused, but quite different from the two accused charged in Bacash, and the charges on this occasion were not for the substantive offence of trafficking but for conspiracy to traffic in amphetamines (first count) and in ecstasy (second count), the evidence appearing to show that the proposed transactions, seemingly close to completion, never took place.
[1][2001] VSCA 193.
[2](1988) 165 C.L.R. 87.
[3]In fact the trial in Atallah preceded that in Bacash by about a fortnight but, by chance, the appeals have been heard in the reverse order.
On this occasion, again, the principal ground argued was in substance that the learned judge erred by telling the jury the legal basis and his factual conclusions for allowing into evidence intercepted phone calls other than those in which the accused was a participant. That was dealt with in the first of two grounds inserted by way of amendment, namely ground 4, and ground 5 made a more general complaint as to the judge’s directions in relation to the admission of that evidence. Of the original three grounds to the application, only one was pursued at the hearing, by which it was asserted that the judge had erred in directing the jury that it would have been open to the applicant to call Lababidi at the trial. That raises different issues from those considered in Bacash.
In the present case the applicant and his co-accused Fawz El Abed were both found guilty after a trial which ran for over two weeks and were in due course sentenced. In the case of the applicant he received a term of 3½ years’ imprisonment, the judge directing that he should not be eligible to be released parole for 2½ years. An application for leave to appeal against that sentence was abandoned.
The facts and circumstances which the Crown alleged against the applicant and his co-accused need not, for present purposes, be set out in great detail. The evidence was of a kind not unfamiliar in this type of trial, where trafficking or conspiracy to traffic in drugs is alleged. It consisted primarily of the evidence of the covert operative, who may be seen to be trying to purchase both amphetamines and ecstasy, together with a combination of detailed surveillance observations of the applicant, his co-accused and the other participants and some 38 or so tape recordings of telephone conversations between various members of the alleged conspiracy, including either seven or eight[4] in which the applicant was said to have been a participant. There was also evidence of a record of interview with the applicant in which he acknowledged familiarity with Lababidi and his co-accused El Abed but denied involvement in any conspiracy to deal in either amphetamines or ecstasy. As many of the tape recordings were of conversations in Arabic there was also the evidence of an interpreter who produced transcripts in English of those conversations or parts of conversations.
[4]The eighth was disputed by the applicant who said that El Abed’s voice had been mistaken for his own.
The subject matter of this material involved essentially two frustrated attempts to obtain parcels of the two drugs. The first of these began in mid-September 1998 with a series of discussions between “Tony” and Lababidi as to the purchase of ecstasy and amphetamines. Discussions on both the phone and personally near Optus Oval led to an offer by Lababidi of some 3,000 ecstasy tablets, immediately after which it was said that he was seen to go to Atallah’s home address in Coburg. The following day there were further conversations on the same subject, including an agreement between Lababidi and “Tony” that they would call amphetamines “cabbage” and ecstasy “tomatoes”. At about this time there were also conversations between Lababidi and the informer in general terms, so it was said, discussing the proposed sales of the amphetamines and ecstasy tablets. The next day, 24 September 1998, there was a more intense round of conversations directed substantially to how and when they might be able to satisfy the orders. On this day the applicant was first recorded on a taped conversation agreeing to meet somebody, possibly Lababidi, for coffee.
By the following day, 25 September, Lababidi seemed to be more confident in telling “Tony” in a taped conversation that he could supply at least 2,500 ecstasy tablets and one ounce of amphetamines, with a possible further nine ounces to become available. They agreed to meet at 3 o’clock near Optus Oval. It was at this stage that the possible participation of the applicant was said to become more evident. Immediately Lababidi went to the applicant’s home and shortly after that the applicant spoke to El Abed by phone in a conversation in which Lababidi participated. They spoke largely in code, but it might be inferred that the applicant was asking his co-accused to bring something that day. Evidence followed of surveillance of both the applicant and Lababidi leaving the applicant’s home and travelling around the suburbs. Lababidi then went off on his own but told “Tony” that he will be delayed an hour or so. At about 3 o’clock El Abed wanted to speak to the applicant but was told by Lababidi that he is at a café where he should ring him. While “Tony” expressed some disquiet at the delay, Lababidi then rang the applicant at the café and was told to wait a little longer. It would seem that the applicant tried to reassure Lababidi about the delay. There were more conversations in which Lababidi appears to say that he had received half the “cabbages” and 2,600 “tomatoes”. Who precisely was holding up what is not clear but the applicant half an hour later rang Lababidi to ask where “they” are and was told that Lababidi was still waiting for “him”, to which the applicant said that he will see Lababidi soon. A few minutes later “Tony” rang. Lababidi then said that he was worried because there were police nearby and they would have to delay the matter by an hour to an hour and a half. Shortly afterwards the applicant left his café and was not heard of any more that day. El Abed rang Lababidi shortly thereafter asking what was happening. Thereafter Lababidi had further phone conversations with “Tony” in which he explained that the police were everywhere and the deal was then cancelled by “Tony”.
The second attempt at trafficking in these drugs commenced on 2 October 1998, or so it is alleged. The applicant was said to have rung Lababidi and asked to see him, to which Lababidi agreed, although the subject matter of the proposed meeting was not discussed. An hour or so later they met near a service station and within 10 minutes Lababidi rang the informer to say that nothing would be happening that week as somebody had not come from Sydney. Four days later in another call from Lababidi to the informer, Lababidi said that he had spoken to the man in Sydney who would be arriving on Friday with the “tomatoes” and that he had five “cabbages” left. Shortly afterwards the applicant rang El Abed to enquire whether everything was all right for Friday. But the subject matter was obscure. Just after 6.30 that night Lababidi rang the applicant and the applicant informed him briefly that “everything [is] all right”. On 8 October Lababidi spoke to the informer to tell him that the man from Sydney would be arriving tomorrow. On the following day, 9 October 1998, Lababidi was followed to the applicant’s home. Thereafter Lababidi rang El Abed who told him that he was on his way to Sydney Airport and it was arranged that he would be picked up at Melbourne Airport. The information was passed on to “Tony” who agreed to pay $5,500 per ounce. At about half past 1 both Lababidi and the applicant left the applicant’s home. When the applicant rang El Abed at 2.19 p.m., he was told that El Abed would be running late, so that the applicant agreed to meet outside the airport at about quarter past 4. The applicant and Lababidi returned to the applicant’s house and then at half past 4 the applicant arrived at Melbourne Airport to meet El Abed. However, they were then arrested by police in a random interception by a squad apparently unconnected with the present investigation. They were released and there were further phone conversations, one of which was a call said to be between Lababidi and the applicant (but which is disputed), in which it was said that they would call again. It is clear from other conversations that this particular attempted transaction had been frustrated. There was no other transaction until the applicant was arrested on 23 October 1998.
Each of the accused chose to give evidence at this trial. In broad terms the applicant’s evidence was that he had met Lababidi on a number of occasions and knew him. He had been helped by Lababidi to paint his house at one time. He likewise knew El Abed. He had had some business dealings with him relating to the supply of clothing and tobacco. He had also spoken to Lababidi about the supply of tobacco, from which one gathered that the tobacco was being supplied illicitly and in breach of the excise law. That was why his tape-recorded conversations were expressed in such ambiguous terms. The applicant therefore denied any agreement to traffic in amphetamines or ecstasy tablets, inasmuch as his conversations had related to an arrangement to supply illicit tobacco to Lababidi. He was cross-examined in some detail as to these allegations, but it is not necessary to canvass that further. In essence, the dispute with the Crown, therefore, was as to the meaning to be attributed to the conversations which he was recorded as having made.
The evidence extended over some eight days of the trial. After some discussion as to the terms of his Honour’s proposed charge, counsel then addressed but in terms which have not been transcribed and are therefore not available to us.
Some description will be necessary of his Honour’s charge to the jury as the directions he then gave were the sole basis of challenging the convictions. His Honour’s directions were both brief and discursive. No exception was taken to most of the charge but it was by no means ideally expressed. It contained virtually no discussion of the relevant facts, although the evidence had commenced over two weeks before the charge was given. Even if such an approach might be permissible on occasions, there was also no real discussion of the issues raised by counsel on behalf of their clients. The discussion of the three final addresses extended for less than two pages of transcript. Indeed the summary of the applicant’s counsel’s arguments was arguably dealt with in only two sentences in which he said that counsel had argued that the Crown case was a fantasy and a fiction. Counsel for the applicant immediately rose to her feet, after the jury had been sent out a few minutes later, to complain that her client’s case had been misconceived by his Honour. It was, as has been seen, a case in which it was said by the applicant that his dealings had not related to amphetamines and ecstasy tablets but related to illicit tobacco, and that all the recorded conversations had been misconstrued by the prosecution case and ought to be understood as involving only that lesser kind of illegal dealing. His Honour did return to the subject in a redirection, but only in the briefest of terms.
So far as the rest of the charge is concerned, it contained a number of relevant and conventional directions which cannot be ignored in considering the applicant’s arguments in this Court. He described the charge as a “series of directions to you on the law by which you are bound as you come to your fact-finding task”. He said it was their task to assess the witnesses, depending on their commonsense and that they must evaluate the evidence having regard to its reliability, truthfulness, accuracy and consistency. He referred to the presumption of innocence and dealt with the obligation on the Crown to prove each of the counts beyond reasonable
doubt against each of the accused.[5] He concluded these more general matters by saying that both counsel’s addresses, “like any comments I may make about the evidence, are only comments”. That was their domain and the comments were not evidence at the trial. They could adopt or reject any part of the addresses or his comments as they wished.
[5]This was followed by an oblique, but undesirable, comment that “every fact has a history”. Although the judge spent some time expounding this philosophical view, it seems to me to have been irrelevant to any matter raised at the trial and potentially dangerous in a case where there was a comparatively little direct evidence, for it suggested that there must be something behind the facts which the jury had heard and it had the potential to cause them to speculate as to the true facts. There was no conventional direction that they were confined to the evidence adduced before the Court.
His Honour then turned to the question of inferences and circumstantial evidence. It is not necessary to canvass those directions although it might be said that the directions as to circumstantial evidence could be seen as more favourable to the accused than was necessary having regard to recent authority. However he made the valid point that the question of circumstantial evidence was of significance in the case in that much of the evidence arose from taped or intercepted telephone calls. Having dealt with the question of intent and the fact that each accused had given evidence, though they had not been obliged to do so, so exposing themselves to cross-examination, he then turned to a definition of the two offences charged. He read the two counts and turned first to the issue of conspiracy. He gave a brief but etymological definition of conspiracy, again about which no complaint is here made. He correctly said that it was the agreement which constituted the crime, so that it was necessary that they be satisfied whether there was such an agreement that the crime should be committed and secondly whether the accused were parties to that agreement.
He then came to the nature of the evidence available to be used against the two accused. He expressed his directions in the following terms, which, as may be seen, were somewhat more expansive than what he said at the later trial of Bacash. What he here said was:
“Turning to this matter of conspiracy, before this case began … I was asked to make a legal ruling and the legal ruling related to all those intercepted phone calls, apart from those ones in which the accused were actually speakers, of which there are a few but not many. Normally, all those other calls between Lababidi and Tony, Lababidi and the informer would be inadmissible because they are not made between people who are in this court. They would be regarded by the law as hearsay evidence. However, there is a procedure which is not all that old by which the judge is asked to make a ruling that those calls could be led in evidence as being evidence of the furtherance of the aims, the pursuit of the conspiracy. I made that decision on the balance of probabilities as I am required to do. That decision does not affect in any way your responsibility to look at all the evidence very carefully and decide what facts you chose to find and decide whether there was, first, an agreement and, second whether the accused were parties to the agreement.” (Emphasis added.)
His Honour immediately followed with the next presently relevant passage, about which no complaint was made for obvious reasons. It led, however to a later direction which was the subject of the third ground. His Honour said at this stage:
“There are phone calls there from people who have not been called to give evidence in this trial, Mr Lababidi the co-conspirator and the informer, and it may be assumed that the failure to call them to give evidence indicates that their evidence would not have assisted the Crown.” (Emphasis added.)
He continued by observing correctly that the people mentioned on the phone calls had not been in court and that meant that they had not been subjected to cross-examination, nor had their conversations been tested for truth and reliability. His Honour proceeded to deal with the definition of trafficking in terms as to which there has been no exception. Finally he went to the brief summary of the facts to which I have already referred.
While counsel were making a number of exceptions, especially as to the manner of his Honour’s summing up of their arguments, a jury question was passed to the judge in these terms: “Could the defence counsel have called Lababidi as a witness?” His Honour immediately said to counsel that the answer to that was “Yes”, but counsel again took exception to his giving that simple answer. There was some discussion over a considerable time as to what the answer should be. It appeared that the first time this issue had arisen was during the address of the applicant’s counsel to the jury. When the jury was brought back into the court, his Honour said to them:
“You asked a question, could the defence counsel have called Lababidi as a witness. It is clear that Mr Lababidi was not a witness in this case and there was no explanation for that and the principle of law that I gave to you with respect [to] assistance [to] the Crown case, is as applicable to the defence as it is to the Crown in these circumstances, therefore I direct you, you will put that issue to one side.”
There was further discussion and complaint about the terms of the charge relating to other issues but no further direction was given and the jury thereafter brought in their verdicts of guilty against each of the accused.
As to the argument on the fourth and fifth grounds of this application, it was almost identical to that raised by the same counsel in the appeal of Bacash. In substance it asserted that it was improper for the learned judge to indicate to the jury that he had made any finding on the facts as to any issue at trial, even if that finding had been made on the balance of probabilities. In a case where a ruling as to the admissibility of evidence of alleged co-conspirators had to be made in accordance with Ahern, it was not proper for the judge to state the basis of his reasoning or to do other than state that the evidence was admissible for specific purposes, which should be accurately explained to the jury. Otherwise the jury might be improperly influenced by the fact that the judge had made a finding as to one of the principal issues at the trial, namely the existence of the alleged conspiracy. The use of the words “the conspiracy” and “the co-conspirator” in the quotations set out above from his Honour’s charge made clear the apparent assumption upon which the judge had acted and which may have been viewed by the jury as a fait accompli.
Substantially for the reasons expressed by Vincent, J.A. in Bacash, I agree that the judge should have made no such statement. It is conceivable that a judge could, by elaborate explanation, make clear that he was merely making a preliminary ruling for the purposes the High Court saw fit to expound in Ahern and that a jury had to make its own independent assessment of the whole case uninfluenced by the judge’s conclusions made at that preliminary stage. But the more elaborate the explanation, the greater the risk that the jury might misunderstand what the judge had been deciding. It is simpler and safer to say, in my opinion, that no mention should be made of the basis upon which the judge made the relevant finding as to admissibility, as the authorities referred to by Vincent, J.A. make clear. The less said the better, except that the judge ought to explain how the evidence may be used against each of the accused, a task barely essayed by his Honour in this case, but clearly contemplated as necessary by the High Court in Ahern.[6]
[6]See esp. at 104 (last paragraph).
As a matter of principle any reference to the nature of a judge’s finding pursuant to Ahern should not be made to the jury, not because it amounts to an impermissible comment as to the facts, but because any reference to a judicial finding suggests, as did his Honour’s language in this case, that the judge has reached a factual conclusion as to an issue at the trial, indeed in most cases of this kind a critical issue, namely an existence of the alleged conspiracy. If it were a mere comment, then it might be seen as subject to the judge’s conventional direction that any comment made from the Bench could be disregarded by the jury, as with any comment by counsel.[7] But to refer to what his Honour had done as a “ruling”, as he did here, invested it with an importance which on its face took it far beyond that of a mere comment. Nor does it really improve the position, other than marginally, by saying, as here occurred, that the jury still bore the responsibility of deciding the case carefully so as to find the ultimate facts. Unfortunately even at this point his Honour did not emphasise that that ultimate finding had to be made beyond reasonable doubt. He did refer to his own decision as being “on the balance of probabilities”, but, in earlier describing the required standard of proof as being proof beyond reasonable doubt, his Honour had not made the conventional, although not necessarily inevitable, comparison between proof beyond reasonable doubt and proof on the balance of probabilities. The latter expression had therefore not been explained by the trial judge to the jury and his own explanation as to his finding for the purposes of the co-conspirator’s rule was to that extent likewise defective.
[7]Where there is any doubt as to the nature of the comment, that limited effect should be emphasised by the trial judge again at the time of making the “comment” in question.
The vice rests, as Vincent, J.A. has pointed out, on the judge informing the jury of the fact that he has reached a conclusion as to a principal element in the count, which might appear to invest that conclusion with the aura of judicial authority. Of course a judge is entitled to make factual comments, at least for the purpose of assisting the jury, but the time has long since passed since it has been acceptable for a judge to tell the jury how it should conclude their deliberations by informing them of what opinion he or she has formed as to any element or elements of the charge which remain in issue. That much should be clear since the decisions in Broadhurst v. The Queen[8] and Barca v. The Queen[9]. There is a real risk that a jury might be unduly impressed by the judge’s having reached a judicial conclusion as to an issue which remains for them to determine. In any case proof of the relevant element is truly in dispute, a formal notification of the judge’s view in the course of the charge may well lead to the jury to a degree of satisfaction which they might otherwise not have reached. Of course they were told here that they must find the facts for themselves, but the judge’s view as to the proper conclusion, though proved to a lesser standard, could well have an unacceptable influence upon them. It was not even the case where the judge reiterated that his view should be treated in effect as no more than a comment. It was left as a factor which the jury may or may not have taken into account in reaching their own conclusions on this issue. The risk of misunderstanding and error was quite unacceptable, in my opinion.
[8][1964] A.C. 441 at 464 per Lord Devlin.
[9](1975) 133 C.L.R. 82 at 103.
Proper directions as to the use of this evidence may have overcome the potential dangers to which I have referred, but I doubt it. At all events, apart from observing that the other participants had not been cross-examined or otherwise tested for truth or reliability, there was no other useful assistance given to them as to the use of this evidence. His Honour had referred to the evidence as “hearsay” evidence, but he assumed a sophistication among the members of the jury about this concept, for he did not otherwise explain the term. Nor, more importantly, did he explain that, to the extent that the conversations contained true hearsay evidence, hearsay remained hearsay[10], though admitted as part of the co-conspirators’ conversations, but it was because those conversations may be considered to demonstrate acts done in furtherance of the conspiracy that they are admitted, an expression which must in the circumstances be explained in the manner suggested, but not expounded in detail, in Ahern[11].
[10]See Tripodi v. The Queen (1961) 104 C.L.R. 1 at 7.
[11]At 104. See also the discussion in R. v. Chai (1992) 27 N.S.W.L.R. 153 at 185-191.
For these reasons I would uphold each of grounds 4 and 5.
I would also uphold the applicant’s contentions based on ground 3, that the learned judge wrongly directed the jury that it was open to the defence to call Lababidi. Perhaps it might be best to say that the judge erroneously directed the jury as to the absence of Lababidi as a witness, the principal vice of the judge’s comment being that it is almost impossible to discern what he was intending to convey to them on that subject.
It would seem on its face that the judge was seeking to say that, whatever principle had been applicable to the failure of the Crown to call Lababidi as a witness, it was equally applicable to the similar failure by each of the accused. As will have been seen, the only aspect of the so-called Jones v. Dunkel[12] rule to which his Honour had referred was that the jury might assume that the evidence would not have assisted the Crown. One might therefore read his later comment as indicating that the jury might also assume that Lababidi’s evidence would not have assisted the case of either accused. However valid that process of reasoning might have been, his Honour then seems to assume that the combined benefits of those assumptions would cancel each other out, so that they were told to “put that issue to one side”. But that direction was delphic, at best, and my construction of his words may not be correct and, more importantly, may not have been taken by the jury to be intended to have that consequence.
[12](1959) 101 C.L.R. 298.
The jury was clearly interested in the issue, as their question demonstrated. To leave them in any state of uncertainty about it was undesirable, to say the least[13]. In truth there was no proper basis for a comment on the absence of Lababidi as a witness, from whichever side it came. He was serving then a term of imprisonment on a plea related to the same transactions, so that his potential presence was problematic, to put it at its lowest.
[13]If they were speculating along these lines, they had to be told not to do so and why.
This is not the occasion to consider what precise application the rule in Jones v. Dunkel may have in a criminal trial. It is sufficient to say that in recent years the courts, including the High Court, have expressed the greatest of reservations as to the applicability of that rule in criminal trials. See, e.g., Newland[14], RPS v. The Queen[15], Scott[16] and R. v. Baker[17]. Recently this Court has expressed similar views in R. v. MCG[18]. Where the missing witness is an alleged “co-conspirator”, there are even greater risks and difficulties in applying the rule satisfactorily. The fact that Lababidi had already been sentenced and that the applicant gave evidence in support of his own case might be thought to lessen some of the risks, but ordinarily one might conclude that an alleged co-conspirator’s evidence would not necessarily favour a particular accused for a variety of reasons which need not be examined in detail. One might think that, in the absence of precise proof of the witness’s proposed evidence, counsel would require very explicit instructions before calling that kind of witness.
[14](1997) 98 A.Crim.R. 455 (N.S.W.C.C.A.).
[15](2000) 199 C.L.R. 620, esp. at 631-633 paras.[23]-[29] and at 656 paras.[110]-[112].
[16](2000) 112 A.Crim.R. 543 (N.S.W.C.C.A.).
[17](2000) 78 S.A.S.R. 103.
[18][2001] VSCA 17 at paras.[58]-[59] (at present unreported).
In any event the considerations relevant to a failure by the Crown to call such a witness are quite different. His Honour’s comment as to the equal applicability of
the rule was therefore wrong. If the judge thought that neither side should be entitled to rely on the rule, then he should have said so clearly in terms which made it clear what they should not do. If he had thought that the comment was permissible, then far more explicit instructions were required in any event. But if, as seems most likely, he thought that neither side should be able to rely on the rule, then he should not merely have told them that it should be “put to one side”, but he should also have directed them that it would be improper to speculate in any way as to what Lababidi would have said and that his potential evidence was irrelevant.[19]
[19]The more so this was required here where the judge had made his obscure reference that “every fact has its own history”: see fn. 5.
In my opinion, therefore, the direction given on this subject was unsatisfactory and unfair to the applicant in that it suggested (or left open) that the applicant might have called another witness to assist his version of events. The third ground should likewise be upheld.
Although counsel for the Crown argued that the proviso should be applied to save the verdicts, I consider, likewise in the present case, that it is inappropriate to do so. Consequently, the application should be granted and the appeal upheld. Regrettably a new trial will have to be ordered but the verdicts here reached cannot in fairness be allowed to stand.
VINCENT, J.A.:
I agree that, for the reasons given by Ormiston, J.A. this appeal should be allowed, the conviction quashed and a new trial ordered.
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