R v Purcell

[1994] QCA 160

IN THE COURT OF APPEAL [1994] QCA 160

SUPREME COURT OF QUEENSLAND	C.A. No. 95 of 1994
Brisbane [R. v. Purcell]

T H E Q U E E N
v.

STEPHEN NICHOLAS PURCELL (Appellant)

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MCPHERSON J.A.
DAVIES J.A.
DERRINGTON J.

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J udgment delivered 20/05/1994

JOINT REASONS FOR JUDGMENT OF MCPHERSON AND DAVIES JJ.A.
SEPARATE REASONS OF DERRINGTON J. CONCURRING AS TO THE ORDERS.

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APPEAL DISMISSED.
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CATCHWORDS:CRIMINAL LAW - PLEAS - appellant convicted after pleading guilty - subsequently sought to change plea to not guilty - whether appellant's decision to plead guilty was involuntary - whether evidence of pressure by legal representatives - whether evidence of medical condition rendering appellant more susceptible than normal at the relevant time to persuasion by the advice given

Counsel:T. Martin for the Appellant

W. Clark for the Respondent

Solicitors:Messrs Dianne Soon & Co for the Appellant

Director of Prosecutions for the Respondent

Date(s) of Hearing:11 May 1994

J OINT REASONS FOR JUDGMENT - MCPHERSON AND DAVIES JJ.A.

Judgment delivered 20/05/1994

The appellant, Stephen Purcell, was convicted on his own plea on 17 February last on two counts of unlawful use of a motor vehicle with circumstances of aggravation and two counts of armed robbery. On the same day he was sentenced to imprisonment to an effective term of six years and seven months with a recommendation that he be eligible for parole after serving 18 months from the date of sentence. A declaration was made that 155 days' custody served prior to the sentence was custody served under the sentence. The convictions and sentence were pursuant to pleas of guilty which the appellant made on 1 November 1993 when he was indicted with three other alleged co- offenders. One other co-offender, Fletcher, also pleaded guilty and the other two, Calo and Patane, pleaded not guilty. Trials proceeded against those two.

Four days after his pleas of guilty, and before the trial of his co-offenders had ended and any convictions had been entered, the appellant claimed that his pleas had been involuntary and indicated that he wished to change them to pleas of not guilty.

On 28 January 1994 he applied to the learned trial judge to be allowed to change his pleas. His application was refused and it is from that refusal that he brings this appeal. The appeal is based on two grounds. The first is that his pleas of guilty were involuntary and consequently that a miscarriage of justice has occurred. The second, which follows from this, is that the learned trial judge erred in refusing the appellant's application for change of pleas. The evidence upon which the appellant relies falls into two categories. The first is evidence of what occurred between the appellant and his legal advisers, his barrister and his principal solicitor, on the morning of 1 November 1993; from which the appellant asks this Court to infer that he was subjected to pressure from them to change his plea from not guilty to guilty. The second is evidence from a psychiatrist and a psychologist that the appellant, at the relevant time, had or may have had an attention deficit disorder; from which we are asked to infer that he was more likely to be subject to pressure of the kind imposed by his legal advisers than a normal man without that condition. From the totality of this evidence, we are asked to infer, on the balance of probabilities, that the appellant's decision to plead guilty was not his own voluntary decision.

With one important difference which we are about to mention, the arguments advanced in this Court were the same, and on the same evidence, as those advanced in the court below. The difference is that, in the court below, the appellant relied on evidence which he gave. His evidence was, however, rejected by the learned trial judge as untruthful and it was not seriously contended on the appellant's behalf, except in a respect to which we will refer later, that he could rely on his evidence in this Court. It is therefore perhaps unnecessary to say that, in addition to the appellant's demeanour upon which the learned trial judge expressly relied on rejecting his evidence, there were numerous contradictions and inconsistencies in his evidence and between his evidence and the uncontested evidence of his former solicitors, Mr Ryan, his principal solicitor, and Ms Schrader, an employed solicitor who, subject to Mr Ryan's direction, appeared to have the carriage of the matter. Nevertheless the appellant submitted before this Court that, on the evidence of Mr Ryan and Ms Schrader, he was subjected to pressure to change his plea from not guilty to guilty.

It may be accepted for the purposes to this appeal that, prior to the morning of 1 November 1993, the appellant intended to plead not guilty on all counts. That day was a Monday. On the previous Friday there had been a change of counsel and the appellant had a conference with his new counsel. It does not emerge what took place at that conference, but it was apparently then arranged that he would again confer with his counsel and Ms Schrader on the morning of 1 November.

He was late for his appointment on that morning. At that conference his counsel raised with him the possibility of pleading guilty. He told the appellant of certain strong elements of the evidence comprising the Crown case against him.

The appellant appeared to be upset and expressed concern that a Ms Martin was a witness for the Crown although she was not present at the time of the commission of the armed robbery offences. He said that there was some acrimony between himself and Ms Martin. He also seemed to have difficulty grasping the concept of circumstantial evidence which was then explained to him by his counsel. The relevance of Ms Martin's evidence was referred to in some detail.

The appellant then said "rather abruptly" that he wanted to plead guilty to the charges. Ms Schrader, concerned that he had made that decision hurriedly, explained to him at length that he must not plead guilty in order to please his legal representatives or anyone else, and that whether he pleaded guilty or not guilty was to be his decision. Both she and counsel explained to the appellant the effect of a plea of guilty. The appellant once again said that he would plead guilty. Ms Schrader thought that he did not sound "convincing" in reaching this decision. We assume that Ms Schrader meant by this that she was not satisfied he was convinced that he should plead guilty. Counsel must also have been of the same view because he then told the appellant that he needed to think about it, that he seemed unsure; and that he should go away and think about it and convey his decision to them when he met them at court. The appellant agreed to think about it and then went off to court.

In the waiting area outside District Court No. 12, before the commencement of court on that morning the appellant conferred with Mr Ryan. He still appeared undecided as to whether he should plead guilty or not guilty. He told Mr Ryan that he felt pressured at the conference with his counsel to enter pleas of guilty to the charges. Mr Ryan told him that it was a matter for him whether he pleaded guilty or otherwise. Mr Ryan then told the appellant that the Crown case was strong and referred to a number of aspects of the evidence of the Crown, in particular that of the evidence of Ms Martin, who, Mr Ryan thought, had been an impressive witness at the committal proceeding. He then said that the appellant had to make up his mind because the court was shortly to commence and they had to know whether there was to be a trial or not. The appellant said that he did not really want to plead guilty. Mr Ryan then told the appellant in some detail of the likely difference in sentences depending on whether he pleaded guilty or not guilty.

The appellant remained undecided.

Counsel then arrived at court and asked the appellant if he had yet made up his mind. The appellant did not respond. Counsel then left and entered the court room as the learned trial judge was also about to enter the court. Mr Ryan, Ms Schrader and the appellant then followed. Just before they entered the court Mr Ryan again asked the appellant what he was going to do and again referred to the strength of the Crown evidence and the benefit of a guilty plea. The appellant then said that he would plead guilty.

Counsel was then informed of the appellant's decision and he asked the court that the appellant not be arraigned with the others and for a short adjournment. This was granted. It is not entirely clear what occurred during this short adjournment, but it seems likely that it was then that the appellant signed a document, which he acknowledges has his signature, in which he stated that he had conferred with his solicitor and counsel; that they had explained in some detail that he could plead not guilty and be tried by jury; that they had explained the full ramifications of pleading guilty; that he understood that by pleading guilty he was pleading guilty to every element of the offences; and that he understood that one of the consequences would be that he would receive a substantial custodial sentence.

The statement indicated his wish to plead guilty on all counts and that that instruction was provided freely and voluntarily without any pressure on him to take that course.

There can be no doubt from this evidence that the appellant was initially reluctant to plead guilty and that the time constraints of that morning placed pressure on him to reach a decision as to which way he would plead. But it does not show that his counsel or solicitors did any more than perform their duty towards him; to point out the strength of the Crown case against him and to advise him of the benefit on sentence which a plea of guilty would be likely to bring. It is perhaps unfortunate that these matters were apparently not raised with the appellant before the morning of trial. But the failure to raise these matters before that day does not mean that to raise them on that day with him was to place pressure on him which would render his decision involuntary. On the contrary, his counsel and solicitor would have failed in their duty had they not advised him of these matters. It is plain that in the end they left the decision whether to plead guilty or not guilty entirely to him.

The medical evidence does not, in our view, strengthen the appellant's case. Notwithstanding Dr Moyle's reference to a "possible" attention deficit disorder, it may be assumed that, on 1 November 1993, the appellant was suffering from that condition. Dr Moyle, a psychiatrist, who was the only medical witness to give evidence of this condition, said that it may impair control as well as consideration of issues at times when decisions and judgments are required. He also said that, on 9 December 1993, the day on which he saw the appellant, he did not think that any of those capacities were seriously impaired. He specifically left open the question whether that condition was sufficiently severe to make the appellant more likely to make impulsive judgments and decisions, including whether or not to comply with others' wishes or instructions. The appellant did not, either below or before this Court, rely on the report of Dr Anderson, another psychiatrist.

The appellant was also seen, at the request of his solicitor, by a psychologist, Mr Perros, on 6 and 14 January 1994. Mr Perros administered a number of psychological tests which, he said, suggested that the appellant was receptive to suggestion when his views were being challenged by someone in authority. He then went on to express some opinions which, it seems to us, were outside his area of expertise and, in any event, were given on the assumption, which we think was false, that the appellant's counsel was insistent on his pleading guilty.

There was therefore, in our opinion, no expert opinion that, on 1 November 1993, the appellant was likely to have been so much more susceptible than a normal person to persuasion by the advice which he was given on that day that his will would have been so overborne by what was said as to make his decision to plead guilty involuntary.

Mr Martin, who appeared for the appellant, submitted that we should look at the appellant's evidence given below, not for the purpose of accepting the truth of what he said, but to observe that it showed a susceptibility on the part of the appellant to accede to suggestions made to him. In our view, the appellant's evidence in this respect was, at best for him, equivocal. It is true that he accepted some suggestions put to him by opposing counsel notwithstanding that such acceptance contradicted his earlier evidence. On the other hand, however, he was insistent in his denial of guilt in respect of earlier offences of which he had been found guilty, notwithstanding that the trial judge in sentencing him had described the case against him as overwhelming.

The appellant also made some submissions to the effect that the learned trial judge made some findings contrary to the evidence and not open on the evidence. Because we have concluded that, on the admissible evidence, the appellant did not establish that his guilty plea was involuntary, it is unnecessary to address any of these specific submissions. The appeal must be dismissed.

JUDGMENT OF DERRINGTON J.

Judgment delivered the 20th day of May 1994

The appellant appeals against the refusal by the learned trial judge to permit him to change his pleas after he had pleaded guilty to certain counts. The full details will appear in the Reasons for Judgment of other members of this Court so this discussion will be limited to the only issue which appears to me to give rise to any concern.

The question is whether in respect of his pleas of guilty his will was over-borne by pressure exerted by his legal advisers when he had little time to reflect upon their advices. The limitation of the time available to him to consider the implications of the advice was largely due to his own fault. He had failed to attend appointments and he was late for conference on the morning of the trial. However, if his pleas of guilty were not voluntary in the circumstances, it does not matter that his irresponsibility contributed to those circumstances.

There is little difficulty in identifying the acceptable evidence on the application. The appellant was disbelieved by the learned trial judge, and for good reason. Therefore, the only parts of it which should be considered are those which are corroborated directly or indirectly by acceptable evidence and that which is not challenged. The evidence of the other witnesses is not challenged.

It is necessary first to consider his character and background. He was almost twenty-two years of age. He was not unaccustomed to facing criminal charges in the courts for he had previous convictions for unlawful use of a motor vehicle, possession of a dangerous drug, possession of a pipe, several break and enter offences, breach of a fine option order, and shop- lifting. He had never been imprisoned on any of these counts, but on the relevant occasion, because the charges consisted of two counts of unlawful use of a motor vehicle with circumstances of aggravation and two counts of armed robbery, it was manifest that he was facing a prison sentence.

For this reason it is probable that on the morning of the trial he was anxious and distressed when he discussed his pleas with his lawyers; but his claims that he was on drugs and had not slept for several days should be rejected. No such abnormalities were said by his lawyers to have been observed, and it is certain that if he had shown any such signs, his solicitor, Mr Ryan, would have stated it in his affidavit.

There is some evidence that he may have an attention deficit disorder, but the acceptable evidence puts this as only a possibility. He does not complain of any relevant inability to concentrate on the matters under discussion, and indeed his evidence implies that his attention was well focussed and enduring at all relevant times. It also indicates rationalisation and/or dishonesty.

The only other relevant consequence of attention deficit disorder is to render those who suffer it impulsive in their judgments. The acceptable evidence suggests a certain impulsivity in his conduct during the relevant discussions, but it is also consistent with the conduct of people of irresponsible disposition who resist acceptance of their guilt, when the force of the case against them is explained. There is a strong chance that all of these factors were present in this case.

However, to the extent that there was any impulsivity, that was countered by the precautions taken by his counsel and solicitor, so that after each display he was given an appropriate caution and time to reflect. Moreover, he was asked to give his instructions in writing, which he signed after reading them. Whatever qualifications to the value of such a document may be made out, at least it has the benefit of modifying any impulsive action by an accused person. In the present circumstances, while there are signs that at times the appellant was impulsive, it is certainly not shown that this was due to other than a sense of guilt combined with a recognition of the strength of the prosecution case and a hope for the benefits of a plea of guilty. Further, it is not shown that his final decision was the result of any impulsive feature.

With this background it is desirable next to look at the relevant events. The appellant's chief complaint was pressure by his counsel, Mr Gundelach, both in his chambers before attending court and at the court during an adjournment. However the affidavit of Samantha Elouise Schrader, who was instructing Mr Gundelach and who was present on all relevant occasions says as follows:

"7.	Upon Mr Purcell's arrival the conference commenced between Mr Purcell, Mr Gundelach and myself in chambers. Mr Purcell was informed by Mr Gundelach that the matter would proceed in to Trial or Sentence in accordance with his instructions.
8.	Mr Purcell was appraised of the strong elements of the evidence comprising the Crown case against him. Certain photographs were shown to Mr Purcell which Mr Gundelach informed us were to be tendered into evidence by the Crown at Trial. A discussion was had about the photographs and their contents.
9.	Mr Purcell seemed to be upset, and wondered why Ms Martin was a witness for the Crown given that he was aware that she was not actually present at the time of the commission of the armed robbery offences. Mr Purcell made it clear that there was acrimony between himself and Ms Martin.
10.	At the commencement of the conference Mr Purcell seemed to have trouble grasping the concept of circumstantial evidence. This was then explained to him by Mr Gundelach. The evidence of Danielle Martin was referred to in some detail.
11.	Then Mr Purcell indicated rather abruptly that he wanted to plead guilty to the charges. He said something to the effect of, "Okay I will plead guilty then".
12.	As I believed that Mr Purcell made the decision hurriedly I explained to him at length that it was to be his decision and that he was not to plead guilty in order to please his legal representatives or anyone else. I informed Mr Purcell, as did Mr Gundelach, that entering a plea of guilty was a formal admission of guilt. He responded to the effect: "Yeah..yeah..I'll plead guilty. I'll plead guilty". He did not sound convincing to me in reaching this decision. mr Gundelach then said something to the effect of, "You need to think about it, you seem unsure. Go away and think about it and meet us at Court and tell us then". Mr Purcell agreed to think about it and due to the late hour we agreed to meet outside District Court number 12 on the 2nd level prior to 10.00 a.m. Mr Purcell then departed chambers.
13.	I do not recall if Mr Gundelach informed Mr Purcell during the conference about penalty in the event of pleading guilty or being found guilty after Trial.
14.	A conversation between Mr Purcell and Mr Brendan Ryan took place on the lounge chairs outside District Court No. 12 on the 2nd floor of the District Court building for which I was present. I did not take any notes of the conversation. Mr Purcell was still indecisive as to what plea he wished to enter. Mr Ryan informed Mr Purcell that it was his decision as to whether or not he wished to plead guilty to the charges. I recall that mention was made of Danielle Martin and the evidence she would give at Trial. Mr Ryan told Mr Purcell that he was impressed with Danielle Martin as a witness at the Committal Hearing and that she was a very strong witness for the Crown. Mr Ryan informed Mr Purcell of the likely sentence he would receive should he be convicted after Trial as opposed to the likely sentence he would receive if he pleaded guilty. Though I cannot recall exactly what Mr Ryan put to Mr Purcell by way of possible sentences in those two circumstances, I am aware that Mr Ryan informed Mr Purcell that should he be convicted after Trial he would most probably lose the prospect of a recommendation for early release on parole.
15.	Mr Gundelach then walked past the lounge chairs where we were seated and stopped. A brief exchange took place to the effect that Mr Gundelach wished to be informed as to Mr Purcell's instructions. Mr Gundelach then walked into court.
16.	Mr Purcell confirmed his instructions to plead guilty to the charges in the presence of myself and Mr Ryan.
17.	I then informed Mr Gundelach of Mr Purcell's instructions. Mr Gundelach showed me a typewritten Statement he had prepared, committing Mr Purcell's instructions to plead guilty in writing. Mr Gundelach asked me to read the document and proffer my opinion on its contents. After reading the document and indicating that it was in order to Mr Gundelach I had another conversation with Mr Purcell in private. Mr Purcell confirmed his instructions to plead guilty. I gave the document to Mr Purcell to read and sign which he did. I witnessed the document.
18.	During the conference at mr Gundelach's chambers I had written in my own handwriting a document in relation to Mr Purcell's instructions in the event that he intended to plead guilty. However Mr Purcell was never requested to sign that document."

In addition to saying that on two occasions the appellant had told him that he had not committed the offences, but that he had told the appellant after the committal proceedings that there was a strong Crown case against him, Mr Ryan's affidavit included the following:

"13.	I recall when I attended at the District Court, shortly before the Trial was to commence, I was informed by Ms Schrader and verily believed that Mr Purcell was late for his scheduled appointment with Mr Gundelach on the morning of the Trial.
14.	I had the opportunity to speak to Mr Purcell outside of District Court No. 12 on the second floor of the District Court building prior to the arrival of Mr Gundelach. Ms Schrader was also present during our conversation on the lounge chairs outside of the court room.
15.	I took no notes of the conversation at the time although I recall Mr Purcell saying that he felt pressured at the Conference with Mr Gundelach to enter a plea of guilty to the charges.
16.	I instructed Mr Purcell that it was a matter for him as to whether or not he wished to plead guilty or otherwise although I stated that the Crown evidence was strong in that the Crown witness Danielle Martin was unshakeable and I referred to other aspects of the evidence which pointed to his guilt.
17.	I told the applicant that he had to make up his mind because the Court was shortly to commence and we had to know whether we had a trial or not.
18.	At about this time, Mr Purcell indicated that he didn't really want to plead guilty. I then informed the applicant that if he pleaded not guilty and was found guilty, he could look at anything up to ten (10) years and could lose his recommendation for early parole. I stated that on the other hand, if he pleaded guilty, he could be given a lower head sentence and a recommendation after something in the vicinity of perhaps three (3) years. I seem to recall that I said he could receive seven (7) years with a recommendation for release after two (2) years or possibly eight (8) years with a recommendation after three (3) years. I recall saying that there was a large difference between doing five (5) years (if he received a straight ten (10 year sentence) and doing two (2) or three (3) years.
19.	The applicant was still reticent to plead guilty and it was obvious to me that he was having trouble making up his mind as to what plea he should enter.
20.	Shortly after this conversation, Mr Gundelach arrived and said to the applicant words to the effect: "Well, what are you doing; have you made up your mind yet?".
21.	It was clear to me at that time that Mr Gundelach had left the question of the applicant's plea to the applicant.
22.	The applicant did not respond but looked to me and Ms Schrader for advice. Mr Gundelach then turned to enter the court room since at about this time, the Judge's Clerk had come outside of the court room to advise that His Honour Judge Morley Q.C. was about to enter the court room to find out what was going on with the Trial.
23.	I then stood up with Ms Schrader and the applicant and proceeded into the court room. As we entered the airlock between the court room and the corridor, I again asked the applicant what he was going to do. I again referred him to the strength of the Crown evidence and that on a plea he would get a good recommendation for early release. Whilst still in the airlock, the applicant said that he would plead guilty.
24.	Upon entering the court room, I cannot recall whether I informed Mr Gundelach or whether Ms Schrader informed Mr Gundelach that the applicant was pleading guilty."

It is plain that after the appellant gave Mr Ryan instructions of his intention to plead guilty, there was some further delay for there was a further conference with Ms Schrader during which the appellant orally confirmed his instructions and then executed the document which contained his written instructions and an acknowledgment that he was under no pressure to plead guilty. This document, which has been mentioned earlier, has a limited value on the issue of pressure in that, if he had succumbed to the pressure to plead guilty, it is consistent that he would also execute the document in the same state of mind; but it did afford him the occasion for more consideration, and he did not challenge its accuracy in any way whilst he was reading or signing it.

The factors which cause some concern are his comparative youth and generally weak character, his instructions to Mr Ryan at earlier times that he had not committed the offences, his complaint that he felt pressure to plead guilty after his conference with Mr Gundelach, his apparent reluctance to plead guilty, and the emphasis, through its temporal position, of Mr Ryan's final repetition of the advantages on sentence of a plea of guilty. In addition there was some pressure of time when the appellant was obliged to make his decision. Each of these deserves closer scrutiny.

His youth and character are offset to some significant extent by his experience, for he had been before the criminal courts on many occasions. He was intelligent and had had a wide variety of occupations; and he was the father of a child as the result of a defacto relationship. He was far from being a callow youth.

On the evidence the pressure resulting from his conference with Mr Gundelach can have been no more than the discouraging force of the strong Crown case and the ordinary advice given to him of the benefits of a plea of guilty. There can be no complaint of any improper pressure by Mr Gundelach, and indeed his conduct was very proper in refusing to accept the appellant's first instructions of an intention to plead guilty, and in requiring him to take more time to consider the matter. This is totally inconsistent with the application of improper pressure; quite the contrary, for it implied that the appellant's decision should be a properly considered one. Conversely the objective factors referred to above must have imposed a strong logical pressure towards a plea of guilty.

There is no acceptable evidence that Mr Gundelach had much to do with him at the court; and he certainly said nothing there that could amount to pressure. It was clear to Mr Ryan that Mr Gundelach had left the decision to the appellant.

The original instructions of innocence given by the appellant to Mr Ryan and his reluctance on the morning of the trial to plead guilty are the most serious causes of concern. However, they are also entirely consistent with his character which is not infrequently encountered in this field. Such people tend to deny responsibility for their real wrongs and to postpone retribution. His statements to psychiatrists, and his evidence relating to an earlier offence are indicative of his tendency to refuse to acknowledge his responsibility; and his non- attendances on appointments for preparation for the trial and his very indecisiveness on the present issue are examples of his wish to postpone retribution. While theoretically these features may seem to have possible significance, to anyone experienced in the behaviour of persons in this position, this would all be reasonably familiar and not very significant. It is probably doubtful whether the appellant would even have made this decision other than at the last moment, and it is fairly typical that he would shift the responsibility to others by asking for advice, knowing what it would be, and then would blame them for his decision.

The psychological timing of Mr Ryan's repetition of the benefits on sentence of a plea of guilty, while unfortunate because of the appellant's indecisiveness and complaints of pressure, must be of limited effect. The appellant was open to a guilty plea and was obviously looking to him for advice; and he properly gave it. That it supported a plea of guilty is not said to be wrong, and it was probably perfectly good advice, but of course the question remains whether it would have moved the appellant to plead guilty if he were not guilty. However, the appellant gave no indication that it would be so, and he had been given to understand by all his legal advisers in the clearest of terms that the decision was essentially his own. He was given time to consider the matter, and it was also clearly implied that he should not plead guilty if he were not guilty. In these circumstances, his seizure upon the timing of this piece of advice is grossly exaggerated in the total context.

The limited time available for his decision has also been exaggerated and probably had little effect. He had long before been advised of the strength of the Crown case, and even on the morning of the trial there was still time for full discussion and his consideration of the competing factors. The principal suggestion of urgency is that he gave his final instructions only as he was entering the courtroom, but this is largely because of his earlier indecisiveness. Moreover, even after that he still had the opportunity to withdraw those instructions during the conference in which he signed his written instructions.

Finally the combination of these matters adds little to their individual strengths, and the net product may be assessed by reference to the evidence of Ms Schrader that prior to the Court's being convened she saw the appellant and his co-accused in the dock and the appellant appeared happy and was smiling and was talking animatedly with his co-accused.

It was four days before he made any complaint. It is difficult to draw any inference from this fact, for on the one hand the sentence which was imposed was well within the range predicted by the advice which he received. Alternatively, if he had succumbed to pressure, it is not unreasonable that such a relatively short time should pass before he would bring himself not only to regret his decision but also to do something about it. This fact then is equivocal.

For these reasons, although there are some features in this case that would demand cautious attention, a fair evaluation and analysis of them must lead to the conclusion that the appellant falls substantially short of discharging his onus of demonstrating any miscarriage of justice.

These were the only issues of substance. The reasons for judgment below do not show clearly that the learned trial judge directed his attention to the central issue. However this may be merely a matter of expression where he felt that his findings were by implication answering the appellant's arguments on that issue. This uncertainty in his reasoning has been the basis of much of the appellant's argument, but in the end it really does not matter because there is no reason why the learned trial judge should have found otherwise than he did in the result. Such findings as were clearly made necessarily defeat the substance of the appellant's case, even if they had been wrongly applied in the first instance.

I agree that the appeal should be dismissed.