R v Mentink

[1995] QCA 70

IN THE COURT OF APPEAL	[1995] QCA 070
SUPREME COURT OF QUEENSLAND
Brisbane

C.A. No. 494 of 1994

[R. v. M]

T H E Q U E E N

v.

M

Applicant

Pincus JA Thomas J White J

Judgment delivered 15 March 1995

Joint reasons for judgment by Thomas and White JJ; separate concurring reasons by Pincus JA.

APPLICATION FOR EXTENSION OF TIME FOR BRINGING OF APPEAL REFUSED.

CATCHWORDS:  CRIMINAL LAW - Appeals - Challenge to admission of a "book" written by Applicant detailing his criminal acts - Plea of guilty after trial judge ruled book admissible - Application to extend time for bringing of appeal - Previous appeal against sentence conducted by applicant - Discretionary grounds.

CRIMINAL CODE s. 631A - Plea of guilty taken in absence of jury - Whether trial restricted or

plea invalid - Maher v. The Queen (1987) 163 C.L.R. 221 discussed.

Counsel:	Applicant in person - no legal representation D. Meredith for the respondent
Solicitors:	Director of Prosecutions for the respondent

Hearing Date: 24 February 1995

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 15/03/1995

This is an application for an extension of time within which to appeal against conviction. The circumstances of the case, and the issues raised by the applicant, are set out in the joint reasons of Thomas and White JJ. I agree with their Honours' conclusions with respect to the admission at the trial of the incriminating "book". The matters relied on by the applicant in this connection are not such as would justify setting aside his conviction, particularly as he plainly committed the offence charged, to which he pleaded guilty.

The remaining question raised is whether the breach of s. 631A of the Criminal Code, which apparently occurred at his trial, vitiates that trial. The section requires that in these circumstances the accused person be called upon to plead in the presence of the jury; it is said that the jury's absence vitiated the conviction based on the plea of guilty.

Breach of a statutory prohibition does not necessarily make void the act constituting the breach: Australian Broadcasting Corporation v. Redmore Pty Ltd (1988) 166 C.L.R. 454. But that was a civil case and special considerations apply to a matter of this sort, where what is in question is an appeal against a criminal conviction. Under s. 668E(1) of the Criminal Code, this Court has power to set aside a conviction if there has been a miscarriage of justice, which is an expression wide enough to cover a breach of one of the provisions of the Code indicating the procedure to be followed in various circumstances; such a breach may perhaps justify the setting aside of a conviction whether or not the provision in question is classified as mandatory rather than directory.

But the Court has a discretion under s. 668E(1A) of the Code, even if the point raised is a good one, to "dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred". That proviso applies whatever the ground of appeal, although it is most commonly relied on by the Crown where the complaint is - as it is not here - about a contested trial which has resulted in a jury verdict.

In Hall [1971] V.R. 293, a decision of the Victorian Court of Criminal Appeal referred to by the High Court in Maher (1987) 163 C.L.R. 221 at 233, there was a procedural error of a kind quite different from the present; but the two cases resemble one another in that in both there was ultimately a plea of guilty. The Court gave some consideration to the criteria by which it should be determined whether a procedural error vitiates a conviction. After referring to the Victorian proviso corresponding to our s. 668E(1A) the Court said at p. 299:

"In considering the application of the proviso it should be borne in mind that it is a provision that contemplates proceedings in a lawfully constituted tribunal in which some error or irregularity not amounting to a substantial miscarriage of justice has occurred. Where a departure from regular and duly recognized process of law is involved, the question of miscarriage of justice depends not upon the effect of the departure on the verdict, but upon whether there has been a serious departure from the essential requirements of the law."

The Court then referred to Kerr (No. 2) [1951] V.L.R. 239, in which Neal [1949] 2 K.B. 590 was referred to for the following statement of Lord Goddard C.J.:

"There is no doubt that to deprive an accused person of the protection given by essential steps in criminal procedure amounts to a miscarriage of justice and leaves the court no option but to quash the conviction, and the question is whether or not this was an essential departure from well established rules of criminal procedure."

The Court then quoted further from Kerr the following:
"In each of these instances, therefore - the exclusion of the public from the Court

and the answering of the jury's question - we are of opinion that no irregularity that has occurred is a ground for quashing the conviction, that what was done did not amount to an irregularity going to the root of the case, and that if a miscarriage of justice has occurred it has been a substantial one and the verdict should not be quashed because of it."

There is an editor's note to the effect that the word "not" had been inadvertently omitted
from the relevant report, so that this passage should read:
"...if a miscarriage of justice has occurred it has not been a substantial one...".

The Court concluded its discussion of the matter by saying:

"In the present case, as we have said, the departure consisted of the jury not being constituted in the manner required by the Juries Act 1967. There was a fundamental defect in the constitution of the tribunal to try the issues between the Crown and the applicant. Such a departure, in our opinion, is one that goes to the root of the trial and constitutes a miscarriage of justice of a kind that falls outside the purview of the proviso...".

In Maher, the High Court used some expressions which resemble those used in Hall and indeed in other cases. After referring to provisions of the Criminal Code, the Court remarked at 233 and 234:

"A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal...In any event it involves such a miscarriage of justice as to require the conviction to be set aside...

Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect."

Maher, was a case in which it could not be said that the procedural error made any great practical difference: had the jury been re-sworn, as it should have been, to try the issues on the further counts, it seems unlikely that this would have been of any substantial benefit to the accused. The case is thus authority, if authority is needed, for the proposition that the proviso in s. 668E(1A) does not necessarily apply in a case of such a kind - i.e. where the error has not necessarily disadvantaged the accused in any practical sense.

Here, that the jury was not brought back in to hear the plea of guilty could have made no difference to the outcome; the applicant pleaded guilty, no doubt, because the admission of the "book" made his guilt evident beyond rational argument. But he would be entitled to have his conviction upset if the judge's error was one which deprived him of "protection given by essential steps in criminal procedure", or amounted to an "irregularity going to the root of the case", or to a failure "to observe the requirements of the criminal process in a fundamental respect". It is difficult to see why the requirement that the jury, having no function to perform in the plea of guilty, should be present when it is taken must be classified as a matter going to the root of the case or otherwise as fundamental.

Some discussion took place with respect to the policy, if any, underlying s. 631A(1)(c). It is unlikely that the jury's presence is required so that the members may be informed of the outcome of the case; that may easily be done whether they are present or not. A more likely explanation is that in the absence of a specific statutory direction on the point the judge informed of an accused's proposed change of plea might simply have been uncertain whether it would be proper to let the jury hear the new plea; a consideration against doing so is the possibility that the foreshadowed plea might not eventuate, but the jury might hear enough, in an attempt at, say, a conditional plea, to give ground for a submission that they should be discharged.

But whether or not that explanation is right, the absence of the jury at the time of taking of the plea in the present case, although regrettable, was not a matter of any substantial importance - either practical or theoretical. It is my opinion that it produced no substantial miscarriage of justice.

I agree with the order proposed by Thomas and White JJ.

JOINT REASONS FOR JUDGMENT - THOMAS AND WHITE JJ

Judgment delivered 15 March 1995

This applicant seeks an extension of time to file an appeal against his conviction of maintaining a sexual relationship with a child under sixteen. He was convicted on his own plea of guilty on 21 September 1993, some seventeen months ago. He brought and personally conducted an appeal against the severity of the sentence which came before this Court eleven months ago and which led to a judgment reducing the sentence from nine years to six years.

Background circumstances

On 20 September 1993 the applicant was arraigned, before the empanelling of the jury, on fourteen counts. The first count was of maintaining a sexual relationship with a child under sixteen, eight counts were of indecent treatment of a child under sixteen, and five were of unlawful anal intercourse. A jury was then empanelled and sworn. Application was made in the absence of the jury for the exclusion of a manuscript written by the applicant which contains in considerable detail his own seduction of and sexual acts with the complainant.

The evidence on voir dire reveals that the applicant was initially visited by police who were investigating another sexual offence against another young person. The applicant subsequently pleaded guilty to that offence. During that investigation the applicant accompanied the police to his vessel upon which he lived. In the course of the visit which was primarily for the purpose of photographing the vessel, its layout and contents, one of the policemen saw a book which might be described as a typed manuscript. He spoke to the applicant about it. On the applicant's version (given on voir dire at the trial) one of the policemen asked for his consent to take the book with them, and the applicant replied, "I don't see that I have any choice.". The learned trial judge took the view that the applicant realised that if he withheld consent then the police officers would probably initiate other procedures to obtain possession of the book, and to that extent he may have seen himself as having no choice. His decision was to permit the expedition of what he saw as virtually inevitable. The learned trial judge noted that even on the applicant's own version there was no evidence to support a finding that he had raised any objection and there was no evidence suggestive of oppression or overbearing conduct. Indeed the applicant conceded that he volunteered to go to the police station to participate in a record of interview concerning the book. During that interview he told the police the name and address of the boy and the name of the doctor referred to in the book. His Honour rejected the submission that the book should be excluded from evidence on the basis of any illegality of the kind recognised in Bunning v. Cross.

The book was in fact the applicant's own record of his dealings with the boy D who was the complainant with whom he was in due course charged with having maintained an unlawful relationship in the present matters. It contains in considerable detail his sexual relationship with the boy.

After his Honour declined to exclude the leading of the evidence of the book, and following an adjournment, the court resumed in the absence of the jury.

Counsel for the applicant then requested that his client be rearraigned on count one. Upon this rearraignment, the applicant pleaded guilty, and the Crown prosecutor placed on record that the Crown accepted that plea in full discharge of the indictment. The jury was then brought in and the learned judge advised them that there was no longer any need to obtain their verdict and they were thereupon discharged. The sentencing process then ensued.

In submissions upon sentence the applicant's counsel submitted that the contents of the book were true and that they should be regarded as the only version of events upon which the sentencing process should proceed. The account in the book may be thought to have been to some extent self-serving but in the event this was substantially the basis upon which the sentencing procedure ensued. Much later, before this court, the applicant himself again insisted that the contents of the book were true, that they related to the complainant and that he should be sentenced on that basis and that basis alone. The contents of the book show him to have been guilty beyond doubt.

Delay

No good reason accounts satisfactorily for the delay in bringing the present application. It would seem that the applicant made a conscious choice at the time of his first appeal not to pursue any appeal against conviction. His claim now is that he experienced delays and difficulties in obtaining documents and materials, including material from his previous legal representatives, and in obtaining "information which is held by government agencies" pursuant to the Freedom of Information Act 1992. The need for such documentation is not demonstrated. Indeed the full record of proceedings was available to him at the time of his previous appeal on sentence. He could have raised any legitimate ground of complaint, and any of the points he now wishes to argue could have been stated as grounds of appeal at any time he chose. We do no consider that the difficulties he mentions in relation to access to law reports is particularly persuasive in relation to a failure to commence an appeal until now.

One of the applicant's complaints is that his counsel (Mr Herbert QC) failed to carry out his instructions concerning the cross-examination of one of the police witnesses. The applicant's pursuit of information under the Freedom of Information Act seems to have been a fishing expedition designed to found a submission that different cross-examination might have produced a different result. However that would not have prevented him filing a document raising the ground that his counsel disregarded his instructions in relation to such matters.

In short, so far as this lengthy delay is concerned, there is no satisfactory explanation. It may be added that perusal of the record of argument when he conducted his own previous appeal against sentence reveals that he at that time directly adverted to the prospect of appealing against conviction and apparently made a conscious decision not to do so and to concentrate on reduction of the sentence. Part of his alleged reason for doing so was a demonstration of concern towards his victim (D) and his avowed unwillingness ever to submit him to cross-examination. It is difficult to see how a retrial could occur to his advantage without cross-examination of the complainant. The present application would seem to involve either a change of a position solemnly maintained in the previous proceeding, or a futility.

Our perusal of the court file indicates that in bringing the previous application for leave to appeal against sentence he used the form applicable for both appeals against conviction and against sentence. The only ground of appeal was "the sentence imposed was manifestly excessive in the circumstances". The words "against my conviction" were not struck out, but as there was no ground to sustain the notice as an appeal against conviction, it could only have been enlivened by the exercise of a discretion by this court to grant leave to insert appropriate grounds out of time. (Compare s.671; Criminal Practice Rules O.IX rr.2, 17,45; Form III of Part IX; R v. Ollis and Andersen (1985-1986) 21 A.Crim.R.256). In the proceedings in this court in March 1994 the applicant conducted his own appeal against sentence, and neither then nor now has he sought to enliven the original notice as an appeal against conviction. Were he to do so now, somewhat similar discretionary considerations would apply, including whether the proposed grounds appear viable, the effect of delay, change of position and other factors.

Prospects of success in appeal

The applicant was permitted to present his arguments on the grounds upon which he

wishes to bring his appeal. In essence there are only two grounds -
(1)The evidence of the book should have been excluded, for a variety of reasons developed in his

"Points of Appeal" A, B and C.

(2)His plea of guilty and consequential conviction were void because his rearraignment took

place in the absence of the jury.

The first point is that the book is on its face "hearsay" and that evidence of the facts within it is only admissible as a "confession". The argument that flows from that premise is that it is admissible only if it meets all the tests usually associated with the obtaining of a voluntary confession. The second and third points allege that the exercise of discretion of the trial judge was contrary to R v. Ireland (1970) 126 C.L.R. 321 and Bunning v. Cross (1978) 141 C.L.R. 54, and alternatively that his Honour should have exercised a discretion to exclude it on the ground that its prejudicial nature outweighed is probative value.

The book was not a confession in the sense in which that word is understood in the courts. It was voluntarily written down or typed by the applicant at times chosen by himself as a true statement of his action. Whether it was intended for publication or for private reminiscence is not to the point. No-one induced him to write the book. It consists of a series of written admissions which the applicant can be shown to have made for himself. It existed before the police knew anything about it and they had no part in inducing its preparation or in making any contribution to its contents. It was quite simply vital evidence waiting to be discovered.

The circumstances of his consent to the police retaining possession of the document, even if somewhat grudging do not make the foreshadowed challenges under R v. Ireland and Bunning v. Cross promising. The applicant's submission is that the book, the record of interview, and the disclosure of the names and addresses of the boy and the doctor constitute a single integral confession, and that the components cannot be broken up for the purpose of admitting evidence. We do not think that this is so. It is true that the disclosure of the boy's name needs to survive the tests applicable to confessions, but the same may not be said of the book. The only arguable reason for its rejection could be that it was unfairly or unlawfully obtained. It is enough to say at this point that the ruling given upon voir dire by the learned trial judge seems to have been well within the limits of exercise of a sound judicial discretion.

Similarly the interview during which the applicant supplied the boy's name to the police was voluntary. Despite initial hesitation he permitted Sergeant O'Shea to read the book. There was some discussion about the manner in which the police would approach the boy when they interviewed him, but the applicant does not submit that these statements were on their face improper inducements. His only point is that he understands that in the events which finally happened, the police did not speak to the applicant again after reading the book and that they spoke to the boy's mother before they spoke to the boy, contrary to what they had indicated to the applicant during the interview. We are unable to think that these circumstances justify the applicant's argument that the book and the additional statements made during the interview ought to be excluded in the exercise of the court's discretion.

The third point cites R v. Chiron [1980] 1 N.S.W.L.R. 218 as an example of a successful appeal against conviction following a plea of guilty during the trial. It does not raise any additional grounds over and above those already mentioned as the first two points of appeal. However we have examined the decision as to any relevance it may have to the present circumstances.

The primary premise in Chiron, namely an incorrect ruling by the trial judge that would permit inadmissible evidence to be received, is lacking in the present case. Even if, contrary to our view, the applicant's admissions should have been excluded, it would not follow that the applicant's plea of guilty in the present matter should be regarded as anything other than a free and voluntary act. The factors present here are distinguishable from those in Chiron. They suggest a calculated decision and a desire not to proceed with a contested trial. These include the belief that his sentence would be less following a plea of guilty, and his strong coinciding desire not to subject the complainant boy to cross-examination. A decision was necessary. He could let the trial proceed knowing that appellate process was available to correct errors and to protect him from wrongful conviction; or he could make a calculated decision that his position was next to hopeless and that he might as well obtain whatever advantage was available from a plea of guilty. He could not have it both ways. There is no suggestion that he was overborne by his counsel or that he was unaware of his rights to challenge the ruling upon appeal if it was considered to be wrong. It is not suggested that he was misled into thinking that he would still be able to challenge the voir dire ruling if he chose to plead guilty.

The applicant has not suggested that the plea of guilty was inappropriate or that he was in fact not guilty. To the contrary he has confirmed his guilt in his submissions to this court and in his repeated assertions that the contents of the book are true. Nor has he suggested any basis upon which he might be acquitted if there were to be a retrial. At no stage has he articulated any basis for a fair chance of acquittal. Of course the obtaining of another trial gives a practical advantage, especially after a long delay, because a principal witness may die or lose memory or the will to give evidence. However we are not concerned with advantages of this kind. We are concerned with the question whether through error of the trial judge the applicant was deprived of the opportunity of having a fair trial.

Chiron does not hold that all guilty pleas made after an erroneous ruling in relation to evidence are tainted. The majority in that case (Street CJ and Nagel CJ at CL) ordered a retrial, but their reasoning differed, Street CJ holding that the plea was not a free and voluntary confession and therefore not properly available to the jury, and Nagel CJ at CL holding that the plea had been induced by an incorrect ruling and that there was therefore a miscarriage of justice. It is important to note that those findings are based on views of the facts of that particular case. We have already indicated significant differences in the circumstances pertaining to the present matter.

We turn to the fourth "point of appeal". This relies upon the fact that his rearraignment occurred in the absence of the jury.

Section 631A of the Criminal Code provides:

"(1) If, at any time before the jury returns its verdict, the accused person informs the
court that -

(a)the person wishes to change the person's plea to one of guilty of the offence charged in

the indictment; or

(b)the person wishes to plead guilty to any other offence of which the person might be

convicted upon the indictment;

the court -

(c)in the case referred to in paragraph (a) - may direct that the accused person be again called upon in open court and in the presence of the jury to plead to the indictment, and to say whether the person is guilty or not guilty of the offence charged; or

(d)in the case referred to in paragraph (b) - may direct, with the consent of the Crown, that the accused person be called upon in open court and in the presence of the jury to plead to any other offence of which the person might be convicted upon the indictment, and to say whether the person is guilty or not guilty of that offence.

(2)	If the accused person does not plead guilty to the offence charged in the indictment or, in the circumstances described in subsection (1)(d), to another offence, the trial shall proceed.
(3)	If the accused person pleads guilty to the offence charged in the indictment or, in the circumstances described in subsection (1)(d), to another offence, the jury shall be discharged from giving their verdict in respect of the offence charged in the indictment.
(4)	A plea of guilty to an offence made by the accused person in the circumstances described in this section shall have effect as if made by the person when called upon at the beginning of a trial to plead to an indictment charging the person with that offence."

That section was introduced by an amendment in 1989. Previously whenever an accused person desired to change his plea it was necessary that the rearraignment occur in the presence of the jury, and that a verdict be obtained from that jury even though only one verdict might be thought possible at that stage. The reason for this was that the accused was in their charge and no-one else had the power to render a verdict. Of course in appropriate cases the trial judge could discharge the jury and no verdict would be returned in that particular trial. Section 631A made a substantial change in that when an accused person changes his mind during the trial and pleads guilty in the circumstances described, "the jury shall be discharged from giving their verdict". The procedure has the same effect as if a plea of guilty were made at the beginning of a trial preceding the empanelling of the jury (s.631A(4)). In other words the jury no longer has a function to perform in that particular trial.

There was however an irregularity in the procedure and it is necessary to consider whether it was of such a kind as to disclose a miscarriage of justice requiring the conviction to be set aside. The irregularity was that the new plea was not taken in the presence of the jury as required by paragraph (1) (c).

The effect of procedural irregularities upon a subsequent conviction has been considered by courts on many occasions, and the more recent and relevant of these were considered by the High Court in Maher v. The Queen (1987) 163 C.L.R. 221. In that case it was held that there was a failure to comply with mandatory provisions governing the constitution and authority of the jury and that a conviction founded on proceedings effected by the irregularity could not stand. This resulted in the setting aside of an appellant's conviction on an additional count which the jury had not been sworn to try. No attempt had been made to rely upon the power of amendment of the indictment. The trial judge in that case did not inform the accused of his right to challenge the empanelled jury in relation to the additional counts. Further difficulty arose from the fact that the jury had not been sworn to give a true verdict upon the issues which were subsequently raised. The errors therefore directly concerned the authority of the jury and the entitlement of the accused person to have some say (by means of challenge) in the composition of the jury by which he would be tried. It was theoretically possible that with a differently composed jury there could have been a different result. In such situations it can be seen that the anatomy of the trial is tainted.

The same potential effects can be seen in the irregularities which led to the setting aside of convictions in R v. Johns (1990) 141 C.L.R. 409, R v. Smith [1954] Q.W.N. 49, R v. Hall [1971] V.R. 293, and R v. Short (1898) 19 L.R. N.S.W. 385. Similarly in R v. Dempster [1924] S.A.S.R. 299 the failure to swear in a juror potentially affected the deliberative process or the conscience of the jurors by whom the decision was to be given. Those cases tend to place weight upon whether the procedural requirement is to be regarded as mandatory or permissive. Such a test does not necessarily afford the touch-stone for all matters, although it is a relevant consideration. In the present matter the relevant paragraphs state that the court "may direct" the rearraignment but the procedure by which this is to be done includes the presence of the jury. In each case it is necessary to examine the substance and effect of the procedural breach. If there is a defect in the constitution of the court, the authorities suggest that the conviction will be set aside whether it might be thought to have affected the result or not. This is to be distinguished from procedural errors in the course of a trial by a duly constituted court. In such cases one examines whether the error might have affected the determinative process or the opportunity of acquittal for the accused, or even more generally if it might have affected the quality of the trial. The perception of such potential effects may suggest a miscarriage of justice in which case it will lead to the setting aside of the conviction. In this respect the effect of such a procedural error may not be very dissimilar to other errors committed in the course of a trial such as errors in the summing up. The appeal court examines closely the effect of the particular error on the trial as a whole.

The submission is that sub-section (1)(c) provides a trial procedure which was not followed at all by the trial judge. The submission proceeds that common law rights then take over requiring the jury to return a verdict before any conviction may be recorded. It is unfortunate that the learned trial judge did not strictly comply with the requirements of s.631A(1)(c) and we do not condone the breach. However the question is whether this breach nullifies the effect of the plea.

Quite plainly the applicant incurred no disadvantage whatever from the omission and it was done at his own counsel's request. The determinative process was not affected actually or potentially. In the circumstances mentioned we think that the procedure under s.631A(1)(c) was actually invoked with respect to the first count on the indictment. The parties and the court acted on that footing. In the course of that process one of its procedural requirements (the presence of the jury) was omitted. We do not think it is a case where the procedure was not followed at all or where the trial must be taken to have continued as if that procedure had not occurred at all. The omission in the circumstances was devoid of practical effect and may be regarded as an irregularity that did not require the ensuing conviction to be set aside.

On this footing the jury was validly discharged from giving their verdict in respect of the fourteen counts they had been sworn to try. Sub-section (4) provides that a plea of guilty "in the circumstances described in this section" shall have effect as if made by him when called upon at the beginning of the trial. The trial commences when the accused is called upon to plead to the indictment, and a jury cannot be sworn until that has occurred. When a person pleads guilty there is no issue requiring determination by a jury, and the person is convicted upon his own plea. Subject to his showing any good reason for arrest of judgment, the court then proceeds to judgment by means of sentence. That is a short statement of the effect to which sub-section (4) refers. In our view the irregularity did not amount to a miscarriage of justice, and his plea of guilty may be taken as a valid plea.

We consider that none of the grounds put forward have sufficient prospects of success to justify the granting of the considerable extension of time that is sought.

To the extent that a discretion is involved in the present matter there are other reasons why we would not be disposed to exercise our discretion in the applicant's favour so as to permit an appeal to be brought. One of these is the proviso to s.668E(1). If our provisional view of the argument concerning s.631A is incorrect, and if the applicant is seen to have been deprived of a right that is a part of the fundamental right to trial by jury, then of course the proviso is irrelevant and a new trial would be necessary. But this point aside, there is a strong case for application of the proviso in relation to all other grounds. He has admitted the offence, he has admitted the facts and has openly reaffirmed before us the truth of the contents of the book. There is no suggestion of any defence. The potential application of the proviso may be thought to support the view that the prospects of the proposed appeal are poor.

The apparent changes of position at different points of time also tell against a favourable exercise of discretion. The advantages he obtained through pleading guilty included a discount in sentence, the dropping by the Crown of the other thirteen counts, the avoidance of a trial and the circumstance that the sentencing would proceed primarily on the footing that the book was the true statement of what had happened. D's evidence of the events would have suggested a far less sensitive seduction and affair than the book portrays. The applicant also obtained credit from his assertions that he had not let the complainant be cross-examined and that he would never do so. His submissions at the previous appeal made much of his experience of remorse and he specifically complained that the learned sentencing judge had failed to give sufficient regard to this. This court gave regard to it along with many other factors when it reduced his sentence. We wonder what has happened to his remorse. The spectacle of a further belated appeal to undo all previous exercises would endorse some remarkable changes of position and selective point-taking.

We decline to extend time for the purposes of permitting an appeal against conviction to

be brought.