R v Byrnes
[2004] VSCA 75
•29 April 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 249 of 2002
| THE QUEEN |
| v. |
| LESLIE DOUGLAS BYRNES |
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JUDGES: | WINNEKE, P., CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 April 2004 | |
DATE OF JUDGMENT: | 29 April 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 75 | |
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Criminal law – Attempted rape and rape – Lies – Whether material – Whether judge’s directions on consciousness of guilt adequate – Strong independent evidence – No substantial miscarriage of justice.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr A. Marshall | Cinque Morrow Solicitors |
WINNEKE, P.:
In August 2002 Leslie Douglas Byrnes (whom I shall call "the applicant") was tried in the County Court at Melbourne on one count of aggravated burglary (count 1), one count of attempted rape (count 2), two counts of rape (digital and penile) (counts 3 and 4), and one count of false imprisonment (count 5). Each of the offences occurred inside premises at Cranbourne which were occupied by the complainant (whom I shall call "V.G.R."). At the conclusion of the trial, the applicant was convicted of all counts and sentenced as follows:
Count 1 - six years' imprisonment
Count 2 - four years' imprisonment
Count 3 - five years' imprisonment
Count 4 - six years' imprisonment
Count 5 - three years' imprisonment.
The trial judge cumulated one-and-a-half years of the sentence imposed on count 3, two years of the sentence imposed on count 4 and six months of the sentence imposed on count 5 upon each other and upon the sentence imposed upon count 1. The total effective sentence was therefore one of 10 years' imprisonment; her Honour ordered the applicant to serve a period of eight years before becoming eligible for parole; and declared that by the time of sentence the applicant had already served 730 days of the sentences which she had imposed. She further ordered that the applicant be sentenced on counts 1 to 4 as a serious sexual offender; the applicant having admitted many previous convictions over a period of more than 40 years, including previous convictions for rape, carnal knowledge, living off the earnings of prostitution and managing a brothel and other convictions of assault. The applicant is presently 64 years of age.
The applicant has, at all material times, lived in Beaufort in western Victoria, where he had a property. For some 14 years he had lived in a de facto capacity with V.G.R. and two young children, the younger of whom was the child of the applicant and V.G.R. In January 2000, V.G.R. had left the matrimonial home in western Victoria and had gone to live in a "women's refuge" until she secured accommodation ultimately in Cranbourne. She took with her her children, who were then aged 14 and 13 years respectively. In May 2000 the police had taken the children from her and had given them apparently to the applicant in Beaufort. Nevertheless, at a hearing in the Family Court on 8 June 2000, that Court ordered that the children be returned to their mother; and gave access to the applicant every second weekend and upon the first week of the school holidays. This family "split", the evidence revealed, had angered the applicant.
The 23rd day of June 2000 was a Friday in respect of which arrangements were made for the children to be transferred from V.G.R. to the applicant. The applicant had a friend, one Peter Sigmont, who also had access arrangements with his own children who were living in Melbourne with their mother. On that Friday, 23 June 2000, by arrangement with the applicant, Peter Sigmont agreed to collect the applicant's children from V.G.R. at the Cranbourne Park Shopping Centre and to bring them back to Beaufort. The evidence suggested that the travelling time between Cranbourne and Beaufort was, at the most, three hours. At about 5.05 p.m., V.G.R. delivered the two boys to Sigmont at the agreed place. Thereafter they travelled with Sigmont to Beaufort where they apparently arrived somewhere in the vicinity of 10.00 to 10.15 p.m. Having delivered the boys into the care of Sigmont, V.G.R. made her own way home to Cranbourne. When she arrived there she endeavoured to ring the applicant at home to tell him that the boys were on their way. There was no answer to her call. She was in the course of making her way to the toilet when a man of about her height stepped out of the laundry and threw a blanket over her head. It was getting dark, and the circumstances were such that she was unable to identify that man. She yelled and struggled and endeavoured to avoid her attacker's clutches. He then grabbed her by the hair and pushed her into the bedroom. Whilst she was struggling to free herself, she noticed that the man who had taken hold of her was wearing "light runners". She was pulled on to the bed face down by the hair and the back of her jeans. Her hands were tied behind her back with what she later discovered to be orange baling twine of a type similar to that used by the applicant on his farm at Beaufort. Her right arm and shoulder were painful because of the pressure which had been put on them by the attacker. When she was lying face down on the bed her attacker undid her jeans and pulled them down. He rubbed her back and her evidence was that, by the feel of them, the assailant was wearing rubber gloves. The assailant pulled a tampon out of her vagina and threw it on the floor; he then put a pillow under her pelvis and tried to penetrate her with his penis. These were the events which constituted counts 1 and 2 on the presentment.
As a consequence of her struggles, V.G.R. ended up on the floor, where the assailant put a blanket over her head again. She was unable to breathe and, as a result, he loosened it. Because her hands were tied behind her back she was unable to move with any freedom. Her assailant left her in the position in which she was in order to go to the bathroom. When he came back he rolled her on to her back, pushed her legs up and penetrated her, first with his finger and then with his penis. V.G.R. said that when he initially endeavoured to have sex with her, her assailant had taken a condom out of its wrapper, which wrapper was subsequently found on the floor. However, on the second occasion, when he had penetrated her, the assailant ejaculated. V.G.R. said that, at that time, he might not have been using a condom. Following this second episode of vaginal sex, the assailant left her and went into the bathroom again.
V.G.R. said that by this time she knew, although she could not visually identify him, that the assailant was the applicant. She was able to say this from the general size and configuration of the man, the fact that he had sex in the same way as the applicant always did; and the fact that he smelled the same to her as the man she knew as the applicant.
By the time the assailant had come back into the bedroom, V.G.R. had partially loosened her bonds. Having seen this, the assailant pushed her back on to the bed and retied her hands. He then pulled out a bottle of alcohol and tried to make her drink it. She refused and reminded the assailant (who, by that time, she believed to be the applicant) that she was suffering from hepatitis C. The assailant then stopped his assault upon her and proceeded to pull up his pants. She could then see him in profile and his size and shape, and the indentation in his stomach from a scar, confirmed in her mind that the assailant was her ex de facto. He nevertheless forced her back on to the bed and tied her right ankle to the bottom end of the bed and her wrists to the side of the bed. She asked him to untie her because she was hurting. He then left the room and came back with a pair of scissors, with which he cut her free. He again left the room and she heard him open the front door, where he appeared to be speaking to someone. She claimed that she recognised his voice. He then, so far as she could see, left the premises, taking the baling twine with him.
When it appeared to V.G.R. that the assailant had left the premises, she ran out through the laundry door screaming for her neighbours. According to the neighbours who heard her, she was yelling words to the effect, "Call the police, I've been raped". She was still naked from the waist down. She was shaking uncontrollably; and her neighbour threw a blanket around her. She told her neighbour that she had been raped and believed that it was her ex de facto. She was ultimately taken to the Monash Medical Centre, where an examination was conducted of her and vaginal swabs were taken, as was a swab of stains which were on the blanket thrown around her by her neighbour. The police conducted a search of the premises. They found the condom wrapper on the floor of the bedroom, and remnants of the orange baling twine which had been used to secure the wrists of V.G.R. and to tie her to the bed. Because of the complaints of V.G.R., the police arranged for their brethren at Beaufort to go to the applicant's house. Beaufort police went there at 8.30 p.m. and 10.15 p.m.; but there was no sign of the applicant. At 11.17 p.m., the applicant himself phoned V.G.R.'s house. One of the police from the Dandenong Police Station, Sergeant Harrington, answered the phone. Harrington said the caller identified himself as "Leslie Byrnes", to which Harrington replied that he was "Peter Harrington", but did not identify himself as a police officer. He said the applicant indicated that he had been home "all night" but that he had to go to Beaufort to get some wood. He said that his former wife was supposed to contact him and had not, and that was the reason for the call. He then asked Harrington to pass a message on to her that he had rung. Nothing more was said.
The applicant's phone call to which I have referred in the preceding paragraph was claimed by the Crown to be the first of a series of statements made by the applicant setting up a number of conflicting alibis. On the following day, 24 June 2000, the police attended at Peter Sigmont's house in Beaufort where they found the applicant. He told them that he had stayed the night at Sigmont's house. Other police enquiries in the town of Beaufort revealed that some time before this incident the applicant had asked a friend, John Bell, to buy him some condoms. Bell said that the applicant had driven him into the town and had given him the money to buy condoms. It appears that the supermarket assistant where Bell had first enquired had told him that they did not sell condoms, so Bell went over the road to another store called "Loaders", where he asked the attendant for some condoms, and was shown to the check-out counter where they were stored. Bell said that he picked up an Ansell brand blue packet wrapped in plastic, and bought them. He said he went back to the applicant's car and handed them to the applicant, who put them in his glove box. Bell said that "a couple of days later" the applicant came around to his house to tell him that if he saw the police he was "not to mention that I'd bought the condoms for him". There was forensic evidence given at the trial that DNA samples collected from the condom wrapper found at the crime scene indicated that (inter alia) the applicant could not be excluded as a possible source of the major component of the biological material found on the wrapper. Recorded interviews were conducted with the applicant by the police on 28 June 2000 and on 2 October 2000. In the first of these interviews, some five days after the events in Cranbourne, the applicant told police that on the "preceding Friday" (i.e. the 23rd) he had purchased some bread and milk from the store and had gone home, probably about 12.30 to 1 p.m. He said that he then went up to the supermarket in Beaufort to complain about a bill which he had received from them which he contended was not "his". He said that he had then taken his friend, John Bell, home, dropped him off and went to his own house where he painted. He denied that he had ever been in Cranbourne; said that it was V.G.R.'s responsibility to make the arrangements with Sigmont to pick up the children; and that she was then to ring him and tell him when the children were likely to arrive. When told that his wife claimed to have rung him at about 5.15, he said, "She knows I never come home till dark". He further said he was home between 5.15 to 6.15; again he said, "I had been home all day". He said that he had got to Sigmont's place at about 10 p.m. where he had stayed during the night and the following day. He said he had the complainant's phone number but he had no idea where she lived. He said:
"I don't give a shit what she says, I know where I was and I know enough people around here."
He further said that he had taken "a mate of Johnny Bell" to his home; he had been around to see Bell, whom he had also taken home, and then went on to Pete's place (i.e. Sigmont). He had got to Sigmont's place "at about 10 o'clock, 10.10 p.m."
On 2 October 2000 the police went back to speak with the applicant in Beaufort, apparently having made some enquiries about the statements which he had made in his preceding interview concerning his movements on Friday, 23 June 2000. The police put it to the applicant that they had spoken to John Bell, who had said that he was not with the applicant on 23 June but on the preceding day, Thursday, 22 June. The applicant conceded that Bell had purchased for him a packet of condoms. He said that he "only wanted one" because he had "a sheila". He said that the condoms were still in his drawer, unused. The police put it to the applicant that Bell had told them that he had purchased the condoms on the Thursday, 22 June. The police also put it to the applicant that various other people whom the applicant had said he had seen on the Friday in question had made statements to the police that it was not the Friday, but the Thursday, upon which they had seen the applicant. The applicant, when faced with these propositions, said, "I don't know … they've all changed but … I'm sticking to it. It was Friday." He also said that Bell was wrong when he told the police that he (the applicant) had come to his place and told him that he was not to mention to the police about the purchase of the condoms.
During the course of the trial the applicant gave evidence and called other witnesses. The defence case at trial was effectively a different alibi from the one which had previously been given by the applicant in his records of interview. He said that he had been painting his house all day with the help of some friends; that he had finished working at about three in the afternoon and had gone around to the place of a friend, Jan Radt. He went back home to feed his animals and returned to her house for tea. After that he had gone over to Peter Sigmont's house to light the fire. He returned briefly to his own house to get some wood and then went back to Sigmont's house at about 10 o'clock. The boys had arrived by then. He said that he bought the condoms because he had a friend whom he was seeing. The first packet that had been purchased had disappeared after he had used two or three of them. The second packet had not been opened until the police took it to be photographed. He said in cross-examination that he did know how his DNA could have been on the condom wrapper and the tip of a rubber glove found at the scene of the crime. He said that when he first talked to the police in his interview of 28 June 2000 about his movements, he had been confused about what day it was and had, therefore, been confused about his movements. He said that he did not know where his wife lived and he had never been to Cranbourne before.
Evidence was also given by Peter Sigmont, who said he had picked up the boys from the Cranbourne Shopping Centre, arriving back in Beaufort at about 9.30 p.m. He said that the applicant had arrived about 10 o'clock, and he had presumed that the applicant had already been there because the fire was alight. The Crown was given leave to cross-examine Sigmont on the basis that he was a hostile witness, on account of his former statement as to whether or not the fire was alight. He said that he had not told the police when first questioned that the applicant had been at the house when he arrived or that the fire was alight when he arrived. He did not see the applicant's car at his house when he arrived home with the boys. Other witnesses were called to give support to the applicant's contention that he was "home all day". They included Radt, her partner Alan Waldron, Beverley Haines, Shirley Preston and Andrew Irons. Radt said that she left the applicant's house at about 2.30 or 3 o'clock in the afternoon with Shirley Preston, Andy Irons and the applicant. They had a cup of tea before Irons left. The applicant then had a bath at her house and stayed for tea. He then took Shirley Preston home at about 8 p.m. Radt said that the applicant was with her all day and did not deliver any wood. She agreed that she had had several conversations with the applicant since that day and was a "close friend". She had not been able to work out her movements on that day until many months after the event. She agreed that she was a user of pethadine but did not think that it interfered with her memory. Radt's partner, Alan Waldron, confirmed that the applicant had had a bath at their house on Friday 23 June 2000 and had eaten with them. He was not sure if Irons was there or not. He did not go to the police because he did not want to be involved. The evidence given by Waldron was rather vague. For example, he was asked:
Question: "Do you remember what time he left your place that day?"
Answer:"I would have been out in the garden, I probably saw him go. I didn't have a watch on."
He further said that he "thought" that the applicant had come back at "about 5 o'clock". "It's so long ago now, but he did have a bath and he stayed there. He was …" . Waldron also conceded, in cross-examination, that the applicant was "very angry" when his de facto left him and that he was going to "track his wife down". He also conceded that the applicant had told him that he "had a contact" and the contact was working out where his de facto was. The witness said that the applicant had in fact found out "where his wife was living", and had told him that she was "in Cranbourne".
There was in the trial some very specific independent evidence which pointed to the applicant as the assailant of his ex wife. For example, there was evidence that the Loaders store in Beaufort had sold only one packet of condoms (Ansell brand) on 22 June 2000, which had the same batch number as the wrapper found at V.G.R.'s house. The box which the applicant had produced to the police on 2 October 2000, and which he claimed was the box of condoms which had been purchased for him, bore a different batch number and had not been sold by Loaders store. But, even more significantly, the DNA typing of the vaginal swabs recovered from V.G.R. revealed fresh sperm which matched the DNA profile of the applicant at each of the nine loci which were tested; a match which, when reduced to statistical figures, indicated that the applicant was at least three billion times more likely to be the producer of the semen than any other male person in the Victorian caucasian population. The applicant's response to this seemingly powerful piece of corroborative evidence is to be found in a portion of the cross-examination of V.G.R. by his counsel. That cross-examination was as follows:
Question:" … You spent some time [after leaving the applicant] in a refuge?"
Answer: "Yes."
Question:"I put it to you that you met a girl there - a friend - with whom you kept in touch subsequently?"
Answer:"Not after I moved in. I had - I rang - Lyn her name was - and I rang her once after I got attacked."
Question:"I put it to you that the two of you arranged a scheme whereby she would go to Beaufort and seduce - for want of a better word - your ex husband and have intercourse with him?"
Answer: "That's ridiculous."
Question:"And I further put it to you that the scheme involved her using condoms, is that right?"
Answer: "There's no scheme."
Question:"And that you and she agreed that she would freeze the semen in those condoms and give them to you?"
Answer: "That's absolutely not true."
Question:"And I also put it to you that she brought the condom wrappers that the two of them had used as well and gave them to you also?"
Answer: "That's not true."
This rather extraordinary line of cross-examination, which could only have come on instructions from the applicant, ultimately led to the location and production of a witness, one Lynette Neild, who had been in the "refuge" with V.G.R. until approximately late March 2000. She gave evidence that she continued thereafter to have limited contact with V.G.R. and had spoken three or four times on the telephone. Her evidence was that she knew nothing of V.G.R.'s "de facto husband", save that she thought that his name might have been "Les" and that he lived somewhere in country Victoria. Apart from that she knew nothing about him, had never met him, had never talked to him and had nothing to do with him whatsoever. The transcript records that the applicant's trial counsel requested a short adjournment to get some instructions from his client; following which it was announced that there would be no cross-examination of the witness.
The Appeal
At the outset of the application in this Court, counsel for the applicant - who was not counsel who appeared at the trial - informed the Court that he wished to substitute for the grounds of appeal which had initially been filed, four new grounds. Because the new grounds were significantly different from those which had originally been filed, the Court announced that it would permit counsel to address argument in respect of the new grounds, but would reserve to itself the question whether leave would be given to amend until it had heard the argument and given its decision.
The new grounds upon which counsel proposed to rely were in the following form:
1.That the trial judge erred in his (sic) directions to the jury concerning lies, false denials and consciousness of guilt, and, in particular:
(a)the alleged lies or false denials should have been left to the jury if at all as going to credit only; and
(b)the alleged lies and false denials should not have been left to the jury as establishing consciousness of guilt.
2.The learned trial judge erred in ruling the alleged statement made by the accused to Detective Harrington was a lie.
3.The learned judge erred in allowing evidence of the alleged statement made by the accused to Detective Harrington.
4.The trial judge erred in her charge to the jury in that she did not correctly or adequately direct them with respect to "lying" and "consciousness of guilt".
So far as the question of the lies was concerned, the matter had been raised with her Honour shortly before the conclusion of evidence. The prosecutor indicated that he would be proposing to address the jury on the basis that the applicant had told certain lies which reflected a consciousness of the applicant's guilt. The prosecutor outlined that at least three of the lies upon which he would rely would be:
(a)What was described as the "lie to Harrington" - namely the conversation at 11.17 p.m. on the night of the assaults when the applicant had spoken to Sergeant Harrington and told him that he had been "home all day".
(b)Lies 2 and 3 related to statements made by the applicant to the police about his purchase and use of condoms. The first "lie" alleged by the Crown in this respect was the statement by the applicant to the police that he had never used any of the condoms purchased for him by Bell from Loader's store. The second was that he still had the packet of condoms purchased by Bell in his drawer at his home. Trial counsel for the applicant did not oppose the puttage of such lies by the prosecutor, provided that the appropriate directions were given by the judge. Ultimately, the judge said that she had considered the issues of "lies" and "consciousness of guilt"; and had concluded that the prosecutor should be entitled to go to the jury on each of the matters which had been raised. In response, the prosecutor identified that he would be putting forward as a further lie, revealing a consciousness of guilt, namely the applicant's assertion in his interview with the police on 28 June 2000 that he did not know where V.G.R. was living. A demonstration of that lie was to be found, the prosecutor contended, in the evidence of Waldron, who had been called by the applicant. The applicant's counsel did not raise any objection to that matter going "as a lie" to the jury and her Honour accepted that it could.
In the event, her Honour left to the jury the various lies to which I have referred; namely the alleged lie made to Sergeant Harrington on the night of the assaults to the effect that he had been "home all night"; the two alleged lies concerning the condoms; and the lie that, as at 23 June 2000, the applicant did not know the residential address of V.G.R. In respect of these lies, her Honour gave directions that it was the Crown's allegation that the applicant had deliberately told them in order to conceal his guilt of the crimes charged. Her Honour went on:
"You may infer, as a matter of law, that the accused entertained a consciousness of his own guilt of the crime if, but only if, you are satisfied beyond reasonable doubt firstly that the statements attributed to the accused were in fact made by him, in other words that he did say these matters. Secondly, that they were lies, and that they were not only untrue, but the accused knew at the time when he made them that they were untrue; in other words, that he had consciously lied. And third, that the only reasonable explanation that the accused did tell lies was his consciousness of the guilt of the crime. Not for some reason, not for some other wrongdoing, but consciousness that he would be implicated, or tend to be implicated in these particular crimes. Were you satisfied beyond reasonable doubt that the accused did tell lies in this way, and did so because of a consciousness of guilt of the crime, you could use that consciousness of guilt as evidence of actual guilt. In doing so, however, you should be careful to consider the possibility that the accused man wrongly believed himself to be implicated. If you are able on the whole of the evidence to exclude that possibility beyond reasonable doubt, the evidence of the accused's lies becomes evidence of his guilt. So you must bear in mind that direction when you come to consider that part of the Crown case, that is, that these lies have been told in relation to these matters because of the consciousness of guilt."
In explanation of these directions, her Honour went on to refer to a concession which had been made by defence counsel in relation to the "condom lies". It appears to have been conceded by defence counsel that it was open to the jury to find that the truth about the condoms was not to be found in the accused's record of interview, but in his evidence given in court; namely that they had been purchased in Ballarat and that he had given to the police an incorrect answer "because he was fearful of being set up by the police in effect, and not because of any consciousness of his own guilt".
In this Court, Mr Marshall put most of his arguments under cover of proposed ground 1. His submission was, contrary to the attitude which appears to have been adopted by trial counsel, that the so-called lies left to the jury were not capable of amounting to lies demonstrating a consciousness of guilt. In particular, he submitted that the "Harrington lie" was nothing more than a "passing comment" made by the applicant over the telephone and was not a responsive answer to any question asked of him. It was nothing more than a "volunteered comment". Furthermore, he submitted that the alleged lie of the applicant that he was not aware of V.G.R.'s address in Cranbourne should not have been left as a "material lie" because the evidence upon which the Crown relied to prove it had never been put to the applicant in his cross-examination. I think it should be noted, in respect of this contention, that no exception had been taken to that "lie" being left to the jury on the ground which is now advanced, no doubt because Waldron was a witness called by the applicant in his defence and who gave his evidence after the accused had completed his. Furthermore, it was tentatively put by Mr Marshall that the "condom lies" should have been left only in relation to the "sexual offence counts", although this submission was not strongly pressed. Mr Marshall also criticised the directions given in respect of these matters by her Honour in the form to which I have referred. The direction, he contended, should have been more expansive in respect of the element of "materiality" of the respective lies; and they should have gone further than they did by telling the jury that there may well be many other reasons why a person in the position of the accused would lie. Indeed, so it was put, her Honour's directions were, or appear to have been, limited to informing the jury, not so much of the myriad reasons for which people might tell lies, but were confined to reasons related to "some other wrongdoing".
For my own part, I do not think that there is substance in these submissions. As to the question of whether or not a lie is "a material lie" or one which is capable of demonstrating a consciousness of guilt, an appellate court is always in a position of disadvantage. Whether such a lie is capable of being used to demonstrate guilt will be more apparent to those familiar with the atmosphere of a trial than it will be to those who sit in the remote confines of the appellate court. It is abundantly apparent that neither the trial judge nor trial counsel for the applicant had any difficulty in accepting that the lies identified by the prosecutor were capable of being found by the jury, subject to proper directions, as being some evidence of guilt. Speaking for myself, and notwithstanding the disadvantage to which I have referred, I can well understand why that view may have been formed. Right from the time when the applicant identified himself to Sergeant Harrington on the phone, it was obvious that he had a clear interest in distancing himself from the crimes that were committed in Cranbourne and from the association with the condom, the wrapping of which was found at the scene of the crime. Each of the lies which the prosecutor relied upon as demonstrating a consciousness of guilt were related to these issues. On the basis that it was found that they were told and that they were untruthful, it would be difficult to avoid the conclusion that they were "material" and capable of reflecting a consciousness of guilt, provided that proper directions were given. I think that counsel for the applicant is correct in his submission to this Court that the directions which her Honour gave were less than satisfactory in some respects. Greater
assistance, I think, could have been given to the jury on the issue of "materiality" of the lies and also in respect of the reasons which might drive a person, albeit innocent, to tell such lies. Nevertheless, it seems to me that the directions which her Honour did give to the jury were adequate to drive home to them the way in which they were entitled to use the evidence if they found that the lies had been deliberately told. But, in any event, such deficiencies in the directions as there may have been did not, in my view, produce any miscarriage of justice in this trial; and, in particular, would not lead me to form the opinion that any substantial miscarriage of justice had actually occurred within the meaning of the proviso to sub-s.(1) of s.568 of the Crimes Act. This, in essence, was a single issue trial - was the perpetrator of the crimes, which had been admittedly committed, the applicant or some other person. The independent evidence which pointed to the implication of the applicant in the commission of these crimes was so strong that the jury, acting reasonably, could have come, in my opinion, to no other conclusion that the one to which they came.
For these reasons, I think the appropriate course for this Court to take is to reject the application made to amend the notice of application by adding the four grounds argued; and, accordingly, to dismiss the application for leave to appeal against conviction.
CHERNOV, J.A.:
I agree.
VINCENT, J.A.:
I agree.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against conviction is dismissed.
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