R v Taurima
[2003] VSCA 146
•10 September 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 312 of 2001
| THE QUEEN |
| v. |
| HIRINI TAURIMA |
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JUDGES: | WINNEKE, P., VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 9 and 10 September 2003 | |
DATE OF JUDGMENT: | 10 September 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 146 | |
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Criminal law – Offences of affray, intentionally and recklessly cause injury, threatening injury and attempted rescue of offender – Whether verdicts “unsafe and unsatisfactory” – Applicant unrepresented at trial.
Sentence – Applicant 18 years 11 months at time of offences – Relevant prior offences – Total effective sentence six months detention in youth training centre – Offences occurring on public transport system – Need for general deterrence - Not manifestly excessive.
Crimes Act 1958, ss.18, 30(b), 479A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K.E. Judd | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | In person |
WINNEKE, P.:
I will invite Eames, J.A. to give the first judgment.
EAMES, J.A.:
The applicant seeks leave to appeal against convictions which followed verdicts of a jury in the County Court on 17 August 2001 and sentences imposed by a judge of the County Court on 7 December 2001. The applicant had been tried on a presentment containing ten counts all of which arose out of events which occurred when the applicant had been a passenger on a train travelling between Flinders Street and Broadmeadows Station in the early hours of 12 March 2000. Two transit police officers, Senior Constable Charles Woodroffe and Senior Constable Trevor Hine, were performing uniform duties on the evening of 11 March 2000 and were travelling on what was the last train for the evening to Broadmeadows. As the train stopped at each station after leaving Flinders Street they would move to a new carriage and at North Melbourne they entered a carriage which was crowded with passengers and in which was the applicant Hirini Taurima and his de facto wife Brooke Smith.
The police officers observed Smith deliver a karate-style kick to the face of a seated female passenger. Smith was drunk and was demanding that the passenger vacate her seat for Smith. Woodroffe spoke to Smith and told her to move to a less crowded area but Smith again kicked at the seated woman, whereupon Woodroffe said that she was under arrest. The applicant then intervened, in circumstances which were the subject of dispute during the trial. In the following summary I will endeavour to relate only those events which are substantially uncontroversial, but I acknowledge that not much about the facts is uncontroversial so far as the applicant is concerned.
It is not in dispute that Senior Constable Hine took hold of Smith, who was struggling violently, and tried to convey her to the centre doors of the carriage for the purpose of removing her from the train. Smith resisted Hine’s attempt to move her and struggled with him, kicking out at his legs, breaking free of his grasp and then punching another passenger in the train with one or two blows. The passenger was an innocent bystander. At about this moment, it being shortly after midnight, the train stopped at Kensington Station where Woodroffe departed the train and called on the driver to keep the train stationary. Smith and the applicant were then still on the train near the open doors with Senior Constable Hine in close attendance. At this point, so the Crown alleged, the applicant assaulted Hine.
Shortly thereafter Woodroffe and Hine, together with the applicant and Smith and also a number of other passengers from the train, at least some of whom appeared to be accompanying Smith and the applicant, became involved in a wild melée on the platform. At one point Smith was pulled back on to the train by others, the prosecution alleging that she had done so because the applicant had broken the hold that Woodroffe had on her. Woodroffe then pulled Smith back on to the platform.
On the Crown case Woodroffe and then Hine were surrounded by a group of people who were striking blows at them, the applicant being among that group. Hine said that he took out his police baton but was struck from behind and knocked into a garden bed on the platform and as he did so he dropped the baton. Woodroffe had also fallen to the ground and the prosecution alleged that the applicant stood above him holding the baton in a raised hand. Woodroffe then used his capsicum spray against the applicant and three other people, including Smith. Some of the group of people returned to the train and Woodroffe signalled to the driver to depart the station, which the train did, leaving Smith and the applicant on the platform. Woodroffe had radioed for backup and also some passengers had phoned 000 as a result of which a number of other police officers attended the scene, whereupon the applicant and Smith were both arrested.
That summary is a very limited precis of the events which were alleged by the prosecution to have occurred in this incident.
The applicant was charged on 13 counts which were listed in the Magistrates' Court. In addressing the applicant’s grounds of appeal it is necessary to make some reference to events which occurred before his trial commenced in the County Court, so that the context of the applicant’s present complaints can be appreciated.
In this Court the applicant has expressed an acute sense of injustice concerning his convictions, just as he did in the County Court after the verdicts were delivered. There is no doubt that that is a genuinely held belief. Given his assertion of injustice and the fact that he was unrepresented both at trial and on appeal the Court has examined the evidence in the trial in some depth. As will emerge, as to one count I agree that his conviction was unsafe and unsatisfactory and ought to be quashed. I am, however, quite satisfied that the convictions on the other counts were not unsafe and unsatisfactory. Nor do I consider that the trial was unfair. Although I fear that the applicant will be unlikely to appreciate the basis for those conclusions I will endeavour to spell out my reasons in some detail.
The applicant complained to the trial judge and to us about the committal proceedings. In June 2000 the applicant through his then solicitor gave notice that he wished to have a contested committal and nominated witnesses to be called, but when the matter came on for committal hearing his counsel announced that the applicant now consented to summary jurisdiction and would plead guilty to some of the charges, and the matter was adjourned to 23 October 2000 to enable plea material to be collated. On that return day the applicant announced that he had dismissed his legal advisers and the case was adjourned to 10 November for him to obtain other legal representation. The applicant told the magistrate that he had not instructed his previous solicitors to announce a guilty plea.
On 10 November 2000 the applicant appeared without legal representation. He said he did not want representation and wanted to conduct the case himself with the aid of a McKenzie friend. The magistrate refused his application to have a McKenzie friend and then, as the trial judge later found (after reviewing these events in detail), the magistrate declined to permit the applicant to call and personally cross-examine witnesses, and committed him for trial on the papers with respect to 10 counts. Three of the 13 charges were adjourned sine die on 10 November 2000 for later hearing in the Magistrates' Court. These included counts of possessing of a weapon without an exemption (being the baton), assault with a weapon and assault to prevent lawful detention.
Before the trial commenced in the County Court in July 2001 the applicant applied to the trial judge to have the assistance of a McKenzie friend. The judge indicated very strongly that it was in the applicant’s interests that he be represented by counsel. The applicant responded that he was dissatisfied with the legal aid authorities and had dismissed his appointed counsel at the Magistrates' Court because he had been advised to plead guilty. He told the judge that his lawyers had advised that if he pleaded guilty to some of the counts he would be likely to avoid a custodial sentence. It was the applicant’s right to plead not guilty, but having regard to the strength of the Crown case it was good advice which had been proffered to the applicant and it is a pity that he rejected it.
As the transcript before the trial judge demonstrates, the judge said that he would grant an adjournment so that the applicant could seek legal representation. The applicant said that he wanted to represent himself, but with the assistance of his McKenzie friend, Mr Tapatu. In a ruling given on 1 August 2000 the judge considered the complaints made by the applicant about the disadvantages he suffered by the absence of a contested committal hearing. His Honour said that he was not persuaded that the absence of a committal denied a fair trial to the applicant. That conclusion was open to the judge, and no complaint is made in a ground of appeal as to that decision. The judge granted his application to be assisted by Mr Tapatu, but said that it was the applicant who should question witnesses and address the jury. Thereafter, Mr Tapatu seems to have provided a good deal of assistance to the applicant.
Although the applicant complained to this Court, also, about the events at the committal proceedings and their effect on the conduct of the trial, there is no ground of appeal relating to those matters. However, that omission would not prevent our intervention were we satisfied that the applicant had been denied a fair trial by virtue of the absence of a contested committal hearing, or for any other reason. As will become clear, however, although the applicant may have a sense of grievance about the committal proceedings, in my view, the stated expectation of the trial judge that the applicant would not be denied a fair trial on that account, proved to be the case.
There is no doubt that the applicant’s ability to defend the charges was somewhat impaired by the absence of counsel, but it is clear that, whilst he would have preferred legal representation on his terms, ultimately it was the applicant who chose the course which he did for the conduct of the trial. As the transcript of the trial demonstrates, and as the applicant agreed before us, he was a poor advocate in his own cause. That is not to say that the applicant lacked self-confidence and some skill in his questioning of witnesses, but however confident he may have felt, his somewhat forthright and argumentative manner in questioning witnesses was unlikely to have assisted his defence in the eyes of the jury, given the nature of the allegations advanced on the Crown case. It cannot have been, however, that the jury were entirely unsympathetic to the applicant, or did not properly apply themselves to their task, because they found him not guilty on three counts. Their reasoning in respect of those counts can be readily inferred and understood when regard is had to the state of the evidence on those counts.
The applicant’s lack of legal training and experience not only hampered his defence at trial but also explains his fundamental failure to appreciate the difficulties which he faces in this appeal. The applicant complained to us that the witnesses had departed from the version of events contained in their statements which had been provided to him with the depositions. Because there had been no cross-examination at committal the applicant relied on those statements in preparing his defence. On many occasions he put to witnesses that in their evidence they had departed from their statements. As the President tried to explain to the applicant, that is not uncommon in any trial, nor is it necessarily a matter of any significance. Where it occurs the accused person might seek to demonstrate that departure and to make capital from it. Whether or not the accused person seeks to expose the discrepancy between statement and evidence is a matter calling for judgment, and experienced defence counsel will often choose not to do so. The applicant, of course, did not have such experience.
Although the applicant made reference, generally, to us about the content of witness statements, this Court must assess the evidence that was given by the witnesses in the trial, not their statements. It is understandable that the applicant had difficulty understanding that distinction, but it is fundamental to the nature of an appeal against conviction. The position is that unless the statements of witnesses became exhibits in the trial or their contents were adopted as the truth, their contents are not and were not evidence, and this Court can have no regard to them.
The importance of distinguishing between that which constituted evidence and that which did not has, I am sure, not been fully grasped by the applicant. Not only were the statements of witnesses not evidence, nor did his questions constitute evidence. Furthermore, the applicant, having been advised of his options, chose not to give evidence in the trial. That meant that his own version of events was not before the jury, at all, because he had also made a no-comment record of interview.
I should add that, although the applicant asserts that the evidence of witnesses, in particular the police witnesses, did depart from their statements, Ms Judd, in response to an enquiry by the Court, strongly challenges that assertion and submits that the evidence on the counts for which he was convicted did not depart to any significant degree from that contained in the witnesses’ statements.
I return then to the issues which are before us on this appeal. The critical question for us is whether the applicant, despite the many disadvantages he faced by being unrepresented, received a fair trial and whether the verdicts of guilty are unsafe and unsatisfactory. In assessing those questions I have had particular regard to the circumstances about which complaint was made concerning the committal. Furthermore I have regard to the fact that the trial was unnecessarily complicated by the decision to bring ten counts on the one presentment, when the allegations as between counts overlapped, and when the ten counts were not even presented in a logical chronological order. The trial judge, who on my reading went to considerable lengths to assist the applicant in presenting his defence, sought to deal with some of those problems. He took counts 5 and 6 away from the jury, and permanently stayed them. Count 5 had alleged an assault on Woodroffe as a member of the police force in the execution of his duty and count 6 had been a similar count with respect to Hine. In withdrawing those counts from the jury the judge indicated that the presence of those counts was liable to cause confusion in what was already a heavily overloaded presentment. He also presented his charge to the jury in a helpful manner by dealing with each count in chronological order.
After a trial occupying some three weeks the jury convicted the applicant on count 1, a count of intentionally causing injury to Woodroffe, contrary to s.18 of the Crimes Act 1958, which carried a maximum 10 years' imprisonment. He was found not guilty on count 2, an alternative count of recklessly causing injury to Woodroffe. He was found not guilty on count 3, a count of intentionally causing injury to Hine. He was found guilty on count 4, a count of recklessly causing injury to Hine, contrary to s.18 of the Crimes Act, which carried five years maximum imprisonment. Counts 5 and 6 were withdrawn from the jury by the trial judge. The applicant was found guilty on count 7, a count of threatening injury to Woodroffe with intent to prevent or hinder a member of the police force from investigating, in a lawful manner, the apprehension of Smith, contrary to s.30(b) of the Crimes Act. That carried a maximum of five years' imprisonment. The applicant was convicted also on count 8, which charged him with the offence of affray, contrary to the common law, and which carried five years' imprisonment. On count 9 the applicant was found not guilty. That count alleged that the applicant made a threat to Hine to inflict serious injury, intending that Hine would fear the threat would be carried out or reckless as to whether or not he was so fearful. On count 10 the applicant was convicted of attempting to rescue Smith from the lawful custody of Woodroffe. That offence was contrary to s.479A of the Crimes Act and carried a maximum of 10 years' imprisonment.
After hearing submissions on sentence his Honour ordered that the applicant be sentenced to be detained in a youth training centre as follows:
Count 1 - six months;
Count 4 - three months;
Count 7 - three months;
Count 8 - three months
Count 10 - six months.
The total effective sentence was six months’ detention in a youth training centre and a declaration of 21 days’ pre-sentence detention was made.
By his notices of application for leave to appeal against conviction and sentence the applicant asserts as to the convictions that the verdicts were unsafe and unsatisfactory and with respect to sentence that the sentences were manifestly excessive.
On the hearing before us the applicant was again unrepresented, but counsel from Victoria Legal Aid advised the Court that although the applicant had not been granted legal aid he had attended to assist the applicant, and the Court, in so far as was possible, but he advised us that he was not familiar with all of the material in the case and did not address us on the substance of the appeal. The applicant himself was unaware that he was to be unrepresented on the appeal and told us that he had not received the transcript of the trial. We were told that the legal aid body had made many attempts to contact the applicant and to inform him that aid was not granted.
After the Court first heard some preliminary submissions from counsel for the respondent and from the applicant, the applicant was invited to apply for an adjournment in order to obtain legal representation. The applicant said he was anxious to conclude the matters and did not want to adjourn the appeal. He made submissions to the Court and, having been assured by the Court that we were familiar with the transcript of the trial, he said he was content for the Court to make its decisions on his applications based on those submissions. I am satisfied that all relevant matters concerning the applications for leave to appeal on conviction and sentence have been placed before the Court. Ms Judd, for the respondent, was of assistance to the Court in ensuring that matters helpful to the applicant’s cause were drawn to the Court’s attention.
As the President explained to the applicant, this Court has no power to conduct a re-hearing of the trial but is concerned to examine the evidence in the trial in order to assess whether the convictions were unsafe and unsatisfactory. The relevant question for this Court is whether as to each count there was evidence on which a reasonable jury might properly have found the applicant guilty. With that test in mind, I turn to consider each of the counts on which the applicant was convicted.
There was a good deal of evidence from passengers in the train as to the nature of the events which transpired, and some of that evidence placed the applicant among a group of people who were raining blows on the police officers. However, as Ms Judd, counsel for the respondent, conceded, none of the civilian witnesses who were called to give evidence said that they had actually seen the applicant land a blow against either Woodroffe or Hine.
As to count 1, the charge of intentionally causing injury to Woodroffe, Ms Judd conceded that there was no evidence from either Woodroffe or Hine that the injuries which had been suffered by Woodroffe were caused by the applicant. Although Woodroffe was struck blows during the melée and identified Ms Smith as one person who assaulted him, he told the jury that he could not say that he saw the applicant strike him. At its highest Woodroffe’s evidence disclosed that he was struck a blow emanating from a position approximately where the applicant had been standing. That may well have been the reason for the jury’s verdict of guilty on this count. There was, however, much violent activity taking place, with many actors involved. Ms Judd conceded that the evidence got no higher than this, and in my view the verdict on count 1 was indeed unsafe and unsatisfactory and the application for leave to appeal with respect to that conviction should be allowed and the conviction be set aside.
As to count 4, the count of recklessly causing injury to Hine, once again there was no civilian witness who directly observed the applicant strike Hine or otherwise cause injury to Hine. There was, however, evidence before the jury to support this count. Woodroffe told the jury that when they were on the train he saw the applicant punch Hine to the face. Hine also gave evidence that whilst on the train the applicant punched him to the left side of his mouth. That blow caused injury, he said, as was shown in a photograph, Exhibit 01, which was tendered in the trial. Woodroffe also gave evidence initially of seeing the applicant punch Hine whilst the applicant and Hine were both on the platform. That was a blow to the mouth with the applicant’s right fist. However, on being cross-examined by the applicant Woodroffe said it was difficult to be certain as to that, although he believed it was the applicant who threw that punch. Hine’s evidence however did not support the contention that he had been struck a blow on the platform by the applicant. Hine said the only punch he received from the applicant was that which was delivered on the train.
If the injury to Hine was that caused by a punch to his mouth then it may seem surprising that the jury found the applicant not guilty of intentionally causing injury (count 3) but guilty only of recklessly causing injury (count 4). There was, however, a perfectly rational explanation for the jury’s verdict in that regard. The jury plainly accepted the evidence of Woodroffe and Hine that the applicant caused Hine’s injury whilst on the train, but the jurors may well have decided that even if a punch was deliberately thrown by the applicant it did not follow that he did so with the intention of injuring Hine rather than merely causing Hine to desist in his attempts to remove Smith from the train.
Although the applicant argues that the evidence of Woodroffe and Hine was unworthy of belief, that was entirely a matter for the jury, and they accepted the evidence on this and other counts. It was open to the jury to so act and the conviction is not unsafe and unsatisfactory.
As to count 7, the count of threatening injury to Woodroffe in order to prevent him investigating in a lawful manner the apprehension of Smith, the Crown alleged that shortly after Smith had been told that she was under arrest the applicant placed himself between Smith and Woodroffe and said “leave her alone or I’ll fucking hit you”. No witness on the train, apart from the police officers, heard precisely those terms, or words close to those terms, being used. Although many witnesses described the applicant as acting in a loud and belligerent manner, but without referring to any particular language or statements, one witness did say that he heard the applicant say, “If you fucking touch her you will see what happens”. In the hearing before us the applicant conceded that he had used that expression (although he did not concede that he had used the expletive). He said that he was concerned about his de facto, because she was pregnant. The trial judge gave the jury a very clear direction that in order to convict the applicant on this count they had to be satisfied that the statement was made with the intention of hindering the police officer from conducting the investigation and apprehension of Smith. His Honour correctly told the jury that the police officers were entitled to arrest Smith for what they had seen her do to the fellow passenger and they were entitled to arrest her and take her into custody in order to further investigate that matter.
The applicant contended in his questioning of witnesses at the trial and in his submissions to this Court that he intervened only for the purpose of assisting police by himself encouraging Smith to leave the train. He conceded that Smith was behaving in a wild and irrational manner but he did not want the police officers taking hold of her and he said he was offended by their manner and language in dealing with her. Woodroffe and Hine both agreed that initially the applicant had said, in effect, that he would assist them with Smith, and that they should leave it to him to deal with her, but they said that as they moved Smith towards the exit and she further struck out at another passenger the applicant changed his approach and told her not to leave the train because it was the last train for the evening. The police witnesses said that from that point the applicant’s efforts were not to assist them but to interfere with their attempts to remove Smith from the train and to detain her.
The applicant disputes that version of events but the question on appeal is whether there was evidence on which a jury, properly instructed, could convict the applicant on count 7, being the threat of injury to Woodroffe. In my view, there was evidence on which the jury could convict the applicant. That is so even if the applicant did not use the swear word when making the statement he concedes he made to Woodroffe. I accept that the applicant genuinely believes that his actions on this night were motivated by a desire to protect his de facto wife, but it was open to the jury to conclude that at the time the statement was made the applicant, who was a solidly built and somewhat intimidating man, who was then wearing wrap-around sunglasses, was in a belligerent mood and was endeavouring not to assist the police but to discourage them from performing their duty, and made the threat for that purpose.
Count 8 was the offence of affray. As his Honour told the jury, that offence is constituted by a violent disturbance of the peace by one or more persons, taking place in circumstances so as to cause terror to one or more persons of reasonable firmness. The applicant did not seek to argue before us that the offence of affray had not been made out. The evidence was quite overwhelming in that regard. The numerous eyewitnesses described a violent scene both near the exit doors of the carriage and on the platform in which many persons became involved who were apparently friends of the applicant, and with the applicant being part of the general melée which occurred. In the course of the incident both police officers fell to the ground and the situation became sufficiently alarming for one police officer to call for back-up and subsequently to use capsicum spray to quell the violent scene. Members of the public who gave evidence described being terrified of the events which took place inside and outside the train.
Count 10 charged that, with force, the applicant attempted to rescue Smith from the lawful custody of Woodroffe. The applicant contended before us that he was, in effect, trying to protect Smith from rough handling by Woodroffe and Hine when they were attempting to arrest her and retain her on the platform. He did not dispute that there was evidence both from Woodroffe and Hine, and also from members of the public, which, if accepted, described the applicant and others trying to pull Smith away from Woodroffe at different times during these events. Although the applicant would contend that such evidence was a misinterpretation of his conduct, it was in my view quite open to the jury to conclude that the allegations contained in count 10 had been proved beyond reasonable doubt.
Accordingly, with the exception of count 1, none of the verdicts of guilty was unsafe and unsatisfactory.
In my opinion, therefore, the application for leave to appeal against conviction should be granted and the appeal on count 1 be allowed and the conviction on that count be set aside, but each of the other convictions on counts 4, 7, 8 and 10 should be confirmed.
The total effective sentence of six months’ detention in a youth training centre would not be automatically altered by virtue of the allowance of the appeal on count 1 for which a sentence of six months' imprisonment had been imposed. That is so because a concurrent sentence of six months’ detention had been imposed on count 10 and that conviction, in my opinion, should not be set aside.
The applicant has in fact served the sentence imposed on him but it is nonetheless appropriate to consider whether the sentences imposed on counts 4, 7, 8 and 10 were manifestly excessive. In my view, they were not. The applicant was aged 18 years and 11 months at the time of these offences. He was 20 years of age at the time of sentence. He admitted to having appeared before the Children’s Court on six previous occasions between 12 September 1995 and 12 January 1999 during which some 22 charges had been found proven against him. Among the offences so proven had been counts of criminal damage with intent, two counts of assaulting police officers in the execution of their duty and one count of resisting a police officer in the execution of his duty. On 26 July 1999 he was convicted of unlawful assault at the Magistrates' Court in Bendigo and fined $300.
The learned sentencing judge gave careful attention to matters raised by the applicant and in particular by a witness called on his behalf.
The events which occurred on the public transport system in this case were extremely serious. Although, as his Honour found, the applicant initially did make some attempt to get his de facto Smith to co-operate with the police, that situation changed and a struggle broke out on the train which then spilled on to the platform where Woodroffe and Hine were surrounded by a number of people who were angry and aggressive and were apparently supporting the applicant, who was himself angry and aggressive. His Honour accepted that in becoming involved as he did the applicant was concerned for the welfare of Ms Smith but he concluded that the applicant had lost control of himself and caused a dangerous and terrifying situation to develop.
His Honour concluded, rightly in my view, that the protection of the travelling public was an important consideration in sentencing in this case, notwithstanding the youth of the applicant and the fact that he had not previously received a custodial sentence. His Honour explored alternative sentences to those which were imposed and sought, and received, a pre-sentence report in which the applicant was described as a very angry and frustrated 20-year-old young man. The author of the pre-sentence report importantly noted that notwithstanding the aggressive manner of the applicant he was nonetheless a sensitive person, the father of two children and a person who had a regard for family loyalty and standing up for his principles, no matter what consequences. As the author noted, those are admirable qualities if they were not articulated in such a negative manner. His Honour noted that the applicant had problems with respect to literacy and anger management.
In my opinion the sentences imposed were not manifestly excessive and the application for leave to appeal against sentence should be dismissed.
I conclude by observing that the three summary charges which were adjourned to a date to be fixed in the Magistrates' Court on 10 November 2000 are now very stale. Given the fact that there has been a lengthy trial and an appeal it would be quite inappropriate for them to be further pursued. I have proceeded on the assumption that the relevant prosecution authority will ensure that those charges are withdrawn.
WINNEKE, P.:
I agree. I am aware that the applicant has been much upset by the events which have brought him before this Court. He has a deep-seated belief that justice has failed him. The belief which he holds is no doubt a genuine one, and much latitude has been afforded to him in this Court. It has been in the knowledge of his belief that we have looked very closely at the transcript to determine whether the verdicts were soundly based. We have come to the view that the verdict on count 1 cannot stand, but there was evidence to support the other verdicts. In the result, the conviction and the sentence on count 1 will be quashed and a verdict of acquittal substituted on that count. The other convictions, in my view, will have to stand, for the reasons which have been given by Eames, J.A., and so will the sentence of six months’ youth training.
I, too, express the view that, in the events which have occurred, it would be inappropriate for the three charges which have been for so long adjourned in the Magistrates' Court to be further pursued.
VINCENT, J.A.:
I agree with the disposition of this matter proposed by Eames, J.A., for the reasons advanced by him and by the President of this Court.
WINNEKE, P.:
The formal order of the Court will be that the application for leave to appeal against conviction, in so far as it applies to count 1, is allowed. The conviction on that count and the sentence imposed on that count are quashed and the Court orders that in lieu thereof a verdict of acquittal be entered on that count.
Save as aforesaid, the applications for leave to appeal against conviction and sentence are dismissed.
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