R v Tyler

[1992] QCA 170

IN THE COURT OF APPEAL [1992] QCA 170

SUPREME COURT OF QUEENSLAND	C.A. No. 69 of 1992
Before the Court of Appeal

Mr Justice Davies

Mr Justice McPherson

Mr Justice Demack

T H E Q U E E N

v.

PHILLIP ANTHONY TYLER

Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 26th day of June 1992

MINUTE OF ORDER:In relation to count 5 only the appeal is

allowed; conviction quashed; verdict of
not guilty entered; sentence set aside; no

new trial ordered.

In relation to all other counts, the application for leave to

appeal against sentence is refused.

CATCHWORDS:CRIMINAL LAW - ACCOMPLICES - appellant convicted

of inter alia supplying cocaine following
evidence given by undercover policeman -
whether policeman can be considered an
accomplice - Criminal Code s.632

EVIDENCE - IDENTIFICATION - appellant convicted of inter alia supplying cocain following identification by undercover policeman introduced to the alleged dealer by third man not called to testify - no evidence of how

identification made - whether conviction

ought stand on that count

Counsel:S. Keim for the Appellant

J. Costanzo for the Respondent

Solicitors:Legal Aid Office for the Appellant
Director of Prosecutions for the Respondent
Hearing Date:5 June 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND C.A. No. 69 of 1992

T H E Q U E E N

v.

PHILLIP ANTHONY TYLER

Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 26th day of June 1992

Phillip Anthony Tyler was charged with seven counts of supplying a dangerous drug. In one instance, the dangerous drug was cocaine, and, in all other instances, cannabis sativa. The evidence in each case came from an undercover police officer. The accused was convicted and sentenced to two and a half years

imprisonment on the charge of supplying cocaine and one and a

half years imprisonment on the other charges.

He appeals against conviction and seeks leave to appeal against sentence. In the appeal against conviction two separate issues arise. First, is an undercover police officer an

accomplice, so that the warning required by s. 632 of the Criminal Code must be given? Secondly, was the summing up in

respect of the identification evidence in count 5 adequate?

Is an undercover police officer an accomplice?

This question was referred to in the judgments in The Queen
v. Charles Carmelo D'Arrigo (C.A. No. 220 of 1991) judgment
delivered 11 December 1991. The Chief Justice left the question

open and de Jersey J. expressed the opinion that the person in that case who was working undercover for the police was an

accomplice. The issue then falls for decision.

Section 632 reads:-

"A person may be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices, but the Court shall warn the jury of the danger of acting on such testimony unless they find that it is corroborated in some material particular by other evidence implicating that person."

Section 632 appears to be the only section in the Criminal

Code in which the word accomplice is used. The section does not

say that a person may be convicted of an offence on the uncorroborated testimony of a party or parties to the offence. The word "accomplice" is used, a word which is not defined in

the Code but which by 1899 had a long association with the law.

The Oxford Dictionary shows that the original form of the word was "complice", for which the meaning was "an associate in crime, a confederate with the principal offender". It also notes, "from the frequent early use of the word in connection with crime, this sense became predominant by 1600 and was the only one recognised by Johnson in 1775". It does not appear when the present form "accomplice" came to be the only form of the word. However, in Hale's History of the Pleas of the Crown

(1736) neither the word "complice" or "accomplice" appears in

the index, whereas by the date of Hawkins Pleas of the Crown

(1824) "accomplice" has become the word used to describe those

who are involved in a crime in respect of which their testimony may be received. In Hale's time the word which was applied to such people was, generally, "approver".

It seems clear enough that the word "accomplice" was used

in a descriptive sense, both by lawyers and in ordinary usage.

However, it was also used in a definitive sense in the law of

evidence. Seven rules about the admissibility of the evidence of accomplices are set out by Hawkins Pleas of the Crown (1824) vol. 2, p. 602, 603. Included among these was:-

"Sect. 92. It hath also been determined, that a prisoner
may be legally convicted on the evidence of an
accomplice, though unconfirmed by any other evidence.
But it seems to be the general opinion, that unless
some fair and unpolluted evidence corroborate and give
verisimilitude to the testimony of an accomplice, a

person convicted under such circumstances ought to be

recommended to mercy."

Hawkins does not mention the issue raised in this appeal.

However, long before that time, spies had been used, and their

evidence had been received (eg. R. v. Tonge and others (1662) Howell's State Trials, vol. 6, p. 226, at p. 246, reference to

the witness Bradley). In R. v. Despard (1803) Howell's State Trials, vol. 28, p. 346, at p. 520 Lord Ellenborough spoke of a

person who had "entered into the scheme with the original

purpose of making a timely discovery of the mischief". He said

that such a person was "not strictly an accomplice".

Reg. v. Mullins (1848) 3 Cox C.C. 526, involved two classes of witnesses. Some had been involved as Chartists in the alleged illegal activity and had turned against their former associates. Maule J. described these as "accomplices". Two other witnesses had joined in the meetings in order to communicate the information to the government. Maule J. described these as "spies". At p. 531, in his charge to the jury, he said:-

"An accomplice confesses himself a criminal, and may have a motive for giving information, as it may purchase immunity for his offence. A spy, on the other hand, may be an honest man, he may think that the course he pursues is absolutely essential for the protection of his own interests and those of society; and if he does so, if he believes that there is no other method of counteracting the dangerous designs of wicked men, I can see no impropriety in his taking upon himself the character of an informer. The government are, no doubt, justified in employing spies; and I do not see that a person so employed deserves to be blamed if he instigates offences no further than by pretending to concur with the perpetrators. Under such circumstances they are entirely distinguished in fact and in principle from accomplices, and although their evidence is entirely for the jury to judge, I am bound to say that they are not such persons as it is the practice to say require corroboration."

The description he gave of accomplices and of the suspect nature of their evidence reflects the opinion constantly expressed over the preceding centuries. His praise of spies seems to reflect some contemporary concern about social unrest.

However, similar sentiments had been expressed in the same year

by Erle J. in Reg. v. Dowling (1848) 3 Cox C.C. 509, at p. 516,

but, in the end, his charge to the jury urged them to receive
the particular evidence with caution.

Wright v. Martin, Argus 26 Nov 1858, 7 Aust. Digest 1270, was decided in the Full Court of Victoria shortly after these cases. The court held that a constable who, with a view to detecting sly grog-selling, goes into an unlicensed house and

purchases liquor, does not thereby become an accomplice of the

vendor. Molesworth J. was reported as saying:
"It would ... be a monstrous thing to say that the

policeman had aided and abetted in the act, or that he was a participator in the criminal offence. The ground upon which judges had cautioned juries not to convict on the uncorroborrated testimony of accomplices was not that the evidence of the accomplice was unreliable as that of a party who had himself committed the like offence, but because he was considered to be under the control and influence of the prosecutor, and to be therefore giving his evidence reckless whether it were true or false; and anxious only to make it the means of his own escape. That reasoning was quite inapplicable to the case of a policeman under the present circumstances, for he was quite free from the imputation of giving his testimony under the expectation of himself escaping from the liability incurred by being a partaker in the offence."

R. v. Cramp (1880) 14 Cox C.C. 390, concerned a charge of administering a noxious thing with intent to procure a miscarriage. Evidence against the accused was given by the woman to whom the noxious thing was given. At p. 393, Denman J. said:-

"She would not be an accomplice unless he had the intent alleged and she was privy to it."

That dictum seems to raise clearly the essential issue that

had been raised in the earlier cases referred to, namely the

question of intention.

In Reg. v. Bannen (1844) 2 Mood. 309; 169 E.R. 123, the

prisoner had asked a die-sinker, Carter, to sink two dies for

him. Carter became suspicious about the dies and contacted the

mint. He received directions from the mint to proceed. Following the prisoner's instructions he completed two dies

which were suitable for the coining of a shilling. It was argued on behalf of the prisoner, who was charged with feloniously making a die, that he had done nothing to make the

die, and was not answerable on the form of indictment for the

die-maker's actions. After conviction the case was reserved.

Tindal C.J., speaking of Carter, said at pp. 312-313; 124:- "It is agreed that in one sense he did the act knowingly;

but mere knowledge is not enough. The statute means guilty knowledge; and that is the distinction clearly pointed out in Foster's Discourse on Accomplices, p. 349, &c. To be a felon there must be a guilty knowledge. The cases of the child or madman are well established. Now Carter certainly knew what he was doing, but had no intention of any felony or furthering a felony; and the authority and knowledge of the Mint, would be clearly sufficient to make his knowledge innocent."

While this decision does not concern admissibility of evidence, it does raise the same question of the proper categorisation of a person who becomes involved in the commission of a crime in order to provide evidence against others who are also involved. See also Reg. v. Valler, Eurico and Harrison (1844) 1 Cox C.C. 84.

So in 1884, Wharton (Law of Evidence in Criminal Issues,

9th ed.) could say, at p. 375:-
"But the discredit of an accompliceship does not attach to

a detective who joins a criminal organisation for the purpose of exposing it, even though, in order to aid in such exposure, he unites in and apparently approves its counsels".

Among the cases cited is R. v. Mullins, the others, except

for R. v. Bernard (1858) 1 F & F 240; 175 E.R. 709, being

American cases. It is not clear why Bernard's case is cited,

although evidence was given by a policeman who was attempting to

uncover a plot.

The last case decided on this question in Western Australia

before the introduction there of the Criminal Code appears to be

Dunn v. Littlejohn (1900) 2 W.A.R. 138. A policeman who placed a bet in an illegal betting shop for the purpose of detecting the offending shopkeeper was held not to be an accomplice in the

relevant sense.

Thus, by the end of the nineteenth century, the word accomplice, when used to describe that category of persons whose evidence, it was said, should be corroborated, did not include agents who were employed to detect criminal offences by becoming very closely involved in their commission. The point of distinction between such witnesses and accomplices who were

participes criminis, lay in their respective intentions. The

agent intended to detect crime; the accomplice to commit it.

This is the way s. 632 of the Criminal Code should be

interpreted. In Western Australia shortly after that State's

adoption of the Criminal Code, the Court considered this very question in Carroll v. Moore (1907) 9 W.A.R. 34. There, the

evidence of an agent, who was supplied with money by police officers in order to buy liquor from the appellant, was given against the appellant on a charge of the illegal sale of liquor.

The Court, Parker C.J. and Burnside J., held that neither the agent nor the police officers were accomplices. In the course of his judgment, Burnside J. said, at pp. 36 and 37:-

"To my mind an accomplice is a person who takes part in an act with the intention of carrying that act out to its fulness, and not with the obvious intention of detecting a case of crime. ... So far as I am concerned I have never been able to convince myself that a person who merely takes part in the commission of a crime, in order to put a stop to it, can be held by any stretch of imagination to be an accomplice. Accomplices in my opinion require unanimity of action.

They both are actuated by the same intention and desire, but here you find two people actuated by absolutely opposite intentions, one trying to sell without a license, and the other setting a trap to try and catch her. If they are accomplices then the word has a new meaning which to my mind is not very clear at the present moment. That being my view, that these men were not accomplices, I do not know that any question arises as to corroboration."

That, with respect, correctly stated the situation when the
Criminal Code was enacted, and nothing has happened to call for

any change in this understanding of the meaning of the word "accomplice" as it is applied in the law. In Davies v. Director of Public Prosecutions (1954) A.C. 378, the House of Lords gave what is now accepted as the standard definition of "accomplice".

Three categories were identified, only one of which is relevant

in the present circumstances, namely, "persons who are

participes criminis in respect of the actual crime charged,

whether as principals or accessories before or after the fact or persons committing, procuring or aiding and abetting", (p. 400).

The decision in Davies is consistent with the view that has
here been expressed about intention. The witness Lawson, who

was one of a number of young men involved in a brawl, was held not to be an accomplice to the crime of murder committed by one of the youths in his group who unexpectedly produced a knife, and inflicted fatal wounds. The limit of his involvement was limited by his intention in becoming involved in the brawl.

Brief reference may also be made to cases in England and in

Queensland which have recognised that police officers and police

informers are not accomplices: R. v. Bickley (1909) 2 Cr.App.R.

53, (woman used to trap prisoner into supplying "noxious thing"); R. v. Heuser (1910) 6 Cr.App.R. 76 (two police officers who watched an indecent act); Davissen v. Dias, ex parte Dias (1944) Q.W.N. 20 (agent who purchased liquor at behest of

police); R. v. Ross, McCarthy and McCarthy (1955) St.R.Qd. 48,

at p. 108 (woman who pretended to want an abortion).

In Sneddon v. Stevenson (1967) 2 All.E.R. 1277, at p. 1279

to 1280, Lord Parker said:-
"We have been referred to R. v. Mullins (1848) 3 Cox C.C.

526, R. v. Bickley (1909) 2 Cr.App.Rep 53, and R. v. Heuser (1910) 6 Cr.App.Rep. 76. It seems to me that, on a true reading of those cases, it can be stated that, though a police officer acting as a spy may be said in a general sense to be an accomplice in the offence, yet if he is merely partaking in the offence for the purpose of getting evidence, he is not an accomplice who requires to be corroborated."

In R. v. Phillips (1963) N.Z.L.R. 855, the New Zealand

Court of Appeal reached the conclusion that although police

spies or agents provocateurs are actually participes criminis, because the rule about corroboration of the evidence of

accomplices is a judge made rule, the judges may modify it in such a way as to exclude police spies and agents provocateurs from its operation. For the reasons given here, that opinion is

respectfully rejected. As the rule about corroboration developed, so did the recognition that certain people, whose
intention was to expose crime, not to commit it, were not to be

regarded as accomplices. It cannot be said that that category has ever been fully defined, but it clearly includes an

undercover police officer. It may even be that the following passage in Wigmore on Evidence, Chadbourn Revision, vol. 7.

para. 2060, d, which does not refer to intention, offers a

useful guide:
"The line should perhaps be drawn in this way: When the

witness has made himself an agent for the prosecution before associating with the wrongdoers or before the actual perpetration of the offense, he is not an accomplice; but he may be, if he extends no aid to the prosecution until after the offense is committed. A mere detective or decoy or paid informer is therefore not an accomplice;"

It follows then that the learned trial judge was correct in refusing to direct the jury in terms of s. 632.

Identification evidence in Count 5

In respect of count 5, an undercover police officer,

Williams, was taken by a third person, Gidian, to meet the

alleged drug dealer. Gidian was not called as a witness.

Williams's evidence began with the assertion that he knew

the accused, "the gentleman at the rear of the court in a white

shirt". He then gave evidence of an incident involving himself, Gidian and a third person, whom he did not describe. The time

of the meeting was said to be 5.27 p.m. on 20 January, 1991. Later 3.30 p.m. is mentioned, so it seems to have been sometime

in the afternoon. The place of the meeting was the driveway of

a high-rise building at Surfers Paradise. Williams paid $200

and received eight alfoil sticks containing cannabis sativa.

In cross-examination Williams was asked (at pp. 64, 65):-

"And you had never seen him before?-- No, I hadn't.

And the only time you had seen him since is in this matter?-- And the previous matter at the committal proceedings.

Yes, at preliminary proceedings. You know there are preliminary proceedings and then this matter comes to trial?-- That's right.

This matter only?-- Yes.

How long would you say you would have had this person who purchased the drugs from under your observation?-- For a couple of minutes when I first met him, and when he came back again, only for a couple of minutes.

And do you remember what his face look (sic) like at that time?-- I remember he was well tanned and he wore sun glasses and his hair was the same colour as it is now, perhaps a bit longer.

And you were talking to him?-- Only briefly.

But he spoke to you?-- Yes.

Briefly?-- Yes.
And did you notice anything about his teeth?-- No, I did

not."

The description then was very basic. The identification

was made at the committal proceedings.

The summing up referred to Williams's evidence of the

transaction in detail, and continued, at p. 138-140:-
"Now, the defence in this case, apart from suggesting to Mr

Williams in cross-examination that he never bought any article from the accused, it was suggested that the witness Williams has incorrectly identified the accused as the seller to him of this substance. Now, ladies and gentlemen, you have to be satisfied beyond reasonable doubt that Williams has correctly identified the accused as the seller to him before you can convict the accused on count 5.

The issue of identification is raised in this particular count, and I am required to warn you of the special need for caution before convicting in reliance alone on the correctness of Williams' identification. The reason for this is that it is quite possible for an honest witness to make a mistake in identification and notorious miscarriages of justice have occurred as a result. Each of you may have had an experience yourself of making a mistake in recognising somebody you see in the street, and a mistaken witness can be a convincing one. In the case before you, of course, the Crown says that the accused man was seen in the presence of Williams for some time. He was questioned at some length by Miss Hall. He has said he was seated in the front seat of the car, turned around and dealt with the accused who, I gather, was in the back seat, and later he remained in the car until he was driven down to the corner of Thornton Street and Gold Coast Highway where he alighted.

There are a number of matters which I think it is fair to say that you should look at. You should examine closely the circumstances in which Williams identified the accused as the seller. How long did he have him under observation? At what distance? What was the light like? Was the observation impeded in any way? Had the witness ever seen the witness before and if so how often? We know he had not seen the accused man before but there was one passage in the evidence of Williams that you may think significant, it is a matter for you, ladies and gentlemen. You will recall that towards the end of this conversation Williams said he said to the accused, "What do I do if I want some more gear?". and the accused replied, "See Shane." Now, you will know there is evidence that Shane and Gidian appear to have been the same person, and there is evidence in the overall cases that it was Shane who introduced Gordon-Jones to the accused man.

Now, that is a matter for you to take into account if you wish. As I say, you are the sole judges of the facts."

Naturally, this ground was argued in the light of Domican

v. The Queen (1992) 66 A.L.J.R. 285. Particular reference was

made to the following passage at pp. 287-288:-
"Whatever the defence and however the case is conducted,

where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed (Kelleher v. The Queen (1974) 131 C.L.R. 534 at 551; R. v. Turnbull [1977] Q.B. 224 at 228; R. v. Burchielli [1981] V.R. 611 at 616-619; R. v. Bartels (1986) 44 S.A.S.R. 260 at 270-271). The terms of the warning need not follow any particular formula (R. v. De-Cressac (1985) 1 N.S.W.L.R. 381 at 384; Finn (1988) 34 A.Crim.R. 425 at 435-436). But it must be cogent and effective (R. v. Dickson [1983] 1 V.R. 227 at 230; Reid (Junior) v. The Queen [1990] 1 A.C. 363 at 380).

It must be appropriate to the circumstances of the case (R. v. Aziz [1982] 2 N.S.W.L.R. 322 at 328; Allen (1984) 16 A.Crim.R. 441 at 444-445). Consequently, the jury must be instructed "as to the factors which may effect the consideration of [the identification] evidence in the circumstances of the particular case" (Smith v. The Queen (1990) 64 A.L.J.R. 588). A warning in general terms is insufficient (Kelleher (1974) 131 C.L.R. at 551). The attention of the jury "should be drawn to any weaknesses in the identification evidence" (at 551). Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it (Davies and Cody v. The King (1937) 57 C.L.R. 170 at 182-183). It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

Here there was virtually no evidence of how the identification was made. There was just a bold assertion that the man in the white shirt was the third person at the

transaction. In a case where the indictment contained seven charges, it is easy for one charge to be buried under the evidence of others. While the summing up dealt with the dangers of acting on identification evidence, it did not give a direction which had the authority of the judge's office behind it. It should have included a reference to the inadequacies in

the description of the third person, and the dangers of acting

on committal identification.

The conviction in respect of count 5 cannot be sustained.

The appeal should be allowed, the conviction in respect of count

5 should be quashed, and a verdict of not guilty in respect of

that count should be entered. There should be no retrial.

Sentence

The sentencing remarks were very full, and set out the

relevant matters:-
"Phillip Anthony Tyler, you have been convicted by what

seemed to me to be a careful, conscientious jury on seven counts of unlawful supply of a dangerous drug. Six of those charges related to the supply of cannabis sativa which is a Second Schedule drug. The seventh charge, which is Count 3, related to the supply of cocaine which is a First Schedule drug. The legislature draws a distinction between First and Second Schedule drugs and that distinction appears in the maximum penalties to which offenders are exposed.

The offences were committed by you over a period of just over two months in Surfers Paradise. Each supply was to an undercover police officer and on each occasion it appears that you were quite ready and willing to sell. I am satisfied that you were, as it were, the end man in the drug supply chain. I listened to the evidence and it seemed apparent that you went to another place to obtain the particular drug which you agreed to supply to the police officer. The amounts involved were not great. During the trial it was said a total of some $750 had been paid to you.

The amount of the cocaine which is, in my view, the most serious of the drugs in the charges before the Court weighed, I am told, 0.112 grams. It was a small amount, but I rather thought that when I considered the cost to the undercover police officer of the cocaine in comparison to the cannabis sativa the relative importance of the two drugs was reflected.

You are not a stranger to drugs. Your criminal history has been put before me. Miss Hall has told me that in the 1970s you had a problem with drugs. However, a matter of importance to me in sentencing you today is the conviction in this Court on 25 March 1986 of one charge of armed robbery with the use of an offensive weapon and in company. You were then sentenced to 10 years' imprisonment with a recommendation that you be considered for release on parole after servicing four and a half years. On the same date you were convicted of two charges of deprivation of liberty and sentenced to two years' imprisonment. Those terms were concurrent with the 10 years Further, on the same date, you were convicted on unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence. Again, you received two years which was concurrent with the 10 years. The picture I have is that those three groups of offences were all committed on the one day when you and another man robbed a bank at Mermaid Beach. No doubt the deprivation of liberty refers to bank officers detained.

The offences of which the jury have convicted you were all committed fairly soon after you were released on parole. Your counsel, Miss Hall, who I think said everything that can be said for you, has told me that you were released on probation in October 1990. It is apparent that within a fairly short space of time you were breaking the law again. Miss Hall has told me, in effect, that you had no money and it may well be quite true to say that after you came out of gaol you were in a position where you had to obtain funds. Why you did not apply for the dole, I don't know. I have not been addressed on that. That seems to me to be what most people who find themselves out of work do in the present economic climate. Instead you chose to resort to criminal activity to help support yourself.

The sales, it is true, were made to undercover police officers. It is my view that undercover police officers operating in the drug scene do put their lives at some risk and they do it with a view to trying to apprehend people such as you. You might be a small fish in the drug pond, but let me tell you that if it were not for the activities of people like you persons who have needs for these dreadful drugs would not be able to obtain their wants. That is one side of the coin. The other side of the coin is the persons further up the drug chain who, as a result of actions of persons like you, obtain money, the money that is paid by needy persons, in many cases, to support what on any view is a dreadful, and in many cases, life destroying habit. I find it surprising that you have gone back so quickly into that sort of arena. You have supplied, and I take into account the fact that you showed a readiness to supply when requested, not only once, but on a number of occasions. It is my view that although there are a number of supplies of cannabis sativa, which is of less importance than the cocaine, nevertheless taking all matters into account and, more particularly, your criminal history and the fact that you committed these offences while on parole, I have no option but to send you to gaol.

Miss Hall has urged that I give you community service or probation. I rather cut her short in telling her that I did not propose to do that. The deterrent aspect has to come to the fore in cases like this.

In the circumstances on Count 3, which is the charge of supplying cocaine, I sentence you to imprisonment with hard labour for two and a half years. In respect of each of the counts of supply of cannabis sativa, I sentence you to imprisonment with hard labour for 18 months and those sentences will be concurrent."

In view of the applicant's persistent involvement in the supply of illegal drugs, the quashing of one conviction does not mean that any reduction in sentence is called for. Neither is there any reason to interfere with the sentences imposed. With

the applicant's record, deterrence rightly assumed a dominant

place in the sentencing process.

The application for leave to appeal against sentence should

be refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND C.A. No. 69 of 1992

T H E Q U E E N

v.

PHILLIP ANTHONY TYLER

Appellant

____________________________________________________
DAVIES JA
MCPHERSON JA
DEMACK J

____________________________________________________

Reasons for Judgment of the Court delivered the 26th day

of June 1992

____________________________________________________

"IN RELATION TO COUNT 5 ONLY THE APPEAL IS ALLOWED; CONVICTION QUASHED; VERDICT OF NOT GUILTY ENTERED; SENTENCE SET ASIDE; NO NEW TRIAL ORDERED.

IN RELATION TO ALL OTHER COUNTS, THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS REFUSED."