Gilbert v Police
[2023] NZHC 1252
•25 May 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000060
[2023] NZHC 1252
BETWEEN ANDREW STEVEN GILBERT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 May 2023 Appearances:
D Hoskin for Appellant H Reid for Respondent
Judgment:
25 May 2023
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 26 May 2023 at 12pm
Registrar/Deputy Registrar
Solicitors:
Steindle Williams Legal, Auckland Meredith Connell, Auckland
GILBERT v POLICE [2023] NZHC 1252 [25 May 2023]
Introduction
[1] Andrew Gilbert (the appellant) appeals his conviction and sentence on a charge of driving on Beach Road, Auckland on 9 January 2020 with an excess breath alcohol level.
[2] He was found guilty and convicted of the charge by Judge S J Maude following a trial in the North Shore District Court held on 24 November 2022. In a reserved decision delivered on 6 December 2022, the Judge found the appellant guilty and directed that he appear before the Court on 20 December 2022 when he was convicted and sentenced to pay a fine of $600 together with Court costs, and he was disqualified from driving for a period of six months, commencing 30 December 2022.1
[3] The appellant says that he was told by the police officer who conducted the breath testing that if he elected to have a blood test and the results showed him to be driving with an excess blood/alcohol level, he would be liable to pay the blood nurse’s and analyst’s fees for taking and analysing the blood sample, of well over $700. He says that the police officer’s advice regarding that cost was erroneous and had the effect of dissuading him from requesting a blood test. And he says the Judge erred by preferring the evidence of the police officer and rejecting his evidence regarding what he says she told him. The appellant says that the Judge ought to have excluded the prosecution evidential breath test result as unfairly obtained, and ought to have dismissed the charge.
Background
[4] The sequence of events that followed the appellant being stopped by police at a checkpoint were described by Constable Sew Hoy (the officer) who was the sole prosecution witness.
[5] The appellant was stopped by a Police traffic checkpoint on Beach Road in Brown’s Bay, Auckland at around 7.25 pm on 9 January 2022. The officer requested the appellant to undergo a passive breath test which indicated the presence of alcohol.
1 New Zealand Police v Gilbert [2022] NZDC 23972.
The appellant told the officer that he had been drinking and had consumed four to five bottles of beer.
[6] The officer used a Police “Breath & Blood Alcohol Procedure Sheet” “POL 515”, to record the time at which the appellant’s vehicle had been stopped, where it had been stopped and the steps that she took thereafter in the course of her dealings with the appellant.
[7] The officer then asked the appellant to undergo a breath screening test using a Drager 6510 device which he proceeded to do as requested. The result of the appellant’s breath screening test indicated his breath/alcohol level exceeded 400 micrograms of alcohol per litre of breath. The officer then advised the appellant that she would require him to accompany her to the nearby Police bus for the purpose of undergoing an evidential breath test, blood test or both.
[8] When making this request the officer read from the POL515 form and informed the appellant of his rights under the New Zealand Bill of Rights Act 1990 (NZ BORA), including his right to remain silent, not to make a statement, and to speak to a lawyer without delay and in private before deciding whether to answer any questions. Having confirmed with the appellant that he had understood his rights as read to him, at
7.28 pm the officer requested him to accompany her to the Police bus. The appellant co-operated. At the Police bus the appellant provided the officer with his personal details of name and address, and produced his drivers’ licence which she recorded on the POL 515 form.
[9] The officer then read Block H on the POL515 form to the appellant. Block H is comprised of two parts. The first part repeats advice regarding the appellant’s rights under the NZ BORA, at the conclusion of which the appellant was asked if he would like to speak to a lawyer. He replied saying that he did not. The officer then read the second part of Block H to the appellant. It provides:
“You are required to undergo an evidential breath test without delay.”
“If you fail or refuse to undergo the evidential breath test, you will be required to permit a blood specimen to be taken.”
“If that blood specimen indicates the presence of alcohol, proceedings may be taken against you.”
“Whether or not you blood test result is evidence of an offence under the Land Transport Act 1998, you may be liable to pay a blood test fee and associated medical costs.”
“If you are 20 years of age or over, and you do not hold an Alcohol Interlock Licence or a Zero Alcohol Licence, and you fail or refuse to undergo an evidential breath test when required, and your blood alcohol concentration is between 51 and 80 milligrams of alcohol per 100 milligrams of alcohol per 100 millilitres of blood, you will be liable to pay an infringement fee of $700.”
[10] Having read that second part of Block H to the appellant, the officer then asked him whether he would like to speak to a lawyer, and the appellant replied saying that he did not. And at the police officer’s request, the appellant signed the POL515 form at the foot of Block H directly below the following printed statement:
I acknowledge that an enforcement officer has advised me of the reason for my detention and of my rights as set out above.
[11]The officer noted the time of the appellant signing the form as being 7.40 pm.
[12] The officer then proceeded to administer an evidential breath test to the appellant and he co-operated in doing so. The process required the officer to attach a new mouthpiece to the evidential breath test device and instructing the appellant to blow through the mouthpiece. The police officer recorded the time that the evidential breath test was undergone as being 7.45 pm. The result obtained from the evidential breath test showed the appellant to have a level of 600 micrograms of alcohol per litre of breath. The officer noted on the POL515 form that she had advised the appellant of the evidential breath test result at 7.49 pm.
[13] The officer then proceeded to blocks J52 and J6 of POL 515 which she read to the appellant. This relevantly provides:
“The evidential breath test you have just undergone has given a positive result of 600 micrograms of alcohol per litre of breath.”
J5. 400 + All drivers. “The test indicates that the proportion of alcohol in your breath exceeds 400 micrograms of alcohol per litre of breath.”
2 Block J5 of POL 515 pertains to all drivers whose evidential breath test result exceeds 400 micrograms of alcohol per litre of breath.
“If you do not within 10 minutes request a blood test, the evidential breath test you have just undergone could, of itself, be conclusive evidence in a prosecution against you under the Land Transport Act 1998.”
“If you in fact undergo a blood test the result of the evidential breath test cannot be used in court proceedings to support a charge of driving or attempting to drive with excess breath alcohol concentration. But the result of the blood test may be used to support a charge based on analysis of your blood alcohol concentration.”
J6. “You are advised that if you elect to have a blood test you may be liable to pay the blood test fee and associated medical costs whether or not the result of that blood test establishes that an offence under the Land Transport Act has been committed.”
[14] The appellant was again requested to sign the POL515 form to acknowledge that he had been advised of his right to request a blood test provided his request was made within 10 minutes. The appellant signed the form to acknowledge that he had been advised of the positive result of his evidential breath test, and of the matters set out in sections J5 and J6 of POL515. The officer then proceeded to Block K of the form which sets out advice to be given to a driver prior to the 10 minute period during which they have to decide whether or not to elect to have a blood sample taken. Block K requires the officer to repeat the driver’s rights under NZ BORA. At the conclusion of this section of the form the appellant was once again asked by the officer whether he would like to speak to a lawyer. He responded saying that he did not wish to speak to a lawyer, and once again signed the POL515 form to confirm his response. The officer noted the time that she advised the appellant of his right to request a blood test as being at 7.52pm, and the time when the 10 minute period for the appellant to consider the option to request a blood test commenced as being 7.54pm. The officer noted on the POL515 form that at the conclusion of the 10 minute period at 8.04 pm, the appellant said that he did not wish to undergo a blood test.
[15] The officer then prepared a court summons which was given to the appellant and a photograph was taken of the appellant holding the summons to show that he had been served with it. The appellant was informed that he was forbidden to drive for 12 hours. And he was then free to leave the Police bus. The officer gave evidence that she believed that the appellant was picked up by someone to be driven home.
[16] In her evidence the officer said that she had proceeded through the steps set out in the POL515 form and had followed the form to explain the process and the appellant’s rights at each stage in accordance with the provisions of the form.
[17] In his evidence the appellant said in relation to the contents of Block J of POL515, regarding the right to elect a have a blood test, that he recalls the police officer reading it out to him. And when asked by his counsel if he could remember what the police officer said to him about it the appellant said:
The appellant: Not actually reading as such, but she did state that it would be in excess of $700 if I was found guilty and, prior to saying that, she had told me it would be at least an hour, if not longer, before they could get someone that would be available to blood test.
…
Counsel: You said that if you were found guilty you would have to pay $700. Was the officer more specific about what the $700 was for?
The appellant: For the cost of the blood test and that if I was found, or failed, that that would then be something I would have to pay for.
…
The appellant: It was $720 or $740, there was sort of spoken about.
[18] The appellant said that having been told about the cost he would be liable for if he was found guilty, and the extra time that he was told he would be required to wait for a blood nurse to come, he declined the option of having a blood test taken.
The Judge’s decision
[19] In his reserved decision delivered on 6 December 2022 Judge Maude noted that the officer had made several errors when recording on the POL 515 form what took place during the course of her dealings with the appellant.
[20] The Judge noted that the appellant gave evidence that the officer had told him immediately prior to the 10 minute period he was given in which to elect whether or not to request a blood test that the medical expenses would be $720 and that there would be a wait of an hour or more for the arrival of a nurse to take the blood sample. And he also noted that the officer had accepted under cross-examination that she did
not recall whether she had told the appellant prior to the 10 minute period that the medical and analyst’s fees would be $720 and there would be a wait of around an hour before a nurse would be available to take a blood sample. And that she had acknowledged that she could possibly have made such a statement.3
[21] The Judge also noted the officer’s evidence that at the time when she was dealing with the appellant in January 2020, she was not aware of what the actual medical and analyst fees were, and he took judicial notice that an analyst’s fee is typically $111.99 and medical expenses between $100 and $200.
[22] The Judge found that the officer’s evidence of what she had said to the appellant in the course of working through the contents of POL515, and particularly the reference therein to an infringement fee of $700 being payable in respect of a reading of between 51 and 80 milligrams of alcohol per 100 millilitres of blood, coupled with the effect of the appellant’s alcohol consumption, was likely to have resulted in him being mistaken about what he was in fact told. The Judge said:
[21] Mr Gilbert was adamant, but in respect of the same evening as put to him was unsure of his recall as to events such as:
(a)He did not specifically recall being asked for a breath test.
(b)He did not recall what else the officer had said as to his rights other than that he had been advised of the $720 cost associated with seeking a blood test and the nurse's delay in arrival.
(c)He was not sure whether he had blown into the same or a different machine when giving a breath screening test compared to the passive test.
[22] It is understood that both Constable Sew-Hoy and Mr Gilbert had hazy recall of the events.
[23] It is accepted by me that reference to the costs flowing from electing blood would be something that Mr Gilbert would be more likely to recall than some of the other more procedural aspects of what occurred on the evening.
[24] It is equally possible that Mr Gilbert's recall could have been impacted by reference to the $700 infringement fee payable referenced in block H of the POL515 form as an infringement fee if his blood alcohol level was between 51 and 80 milligrams of alcohol per 100 millilitres of blood.
3 Gilbert, above n 1, at [14].
[25] Mr Gilbert must establish a positive defence on the balance of probabilities.
[26] I think it more likely than not that Constable Sew-Hoy advised Mr Gilbert that there was likely a wait time for arrival of a nurse to take blood.
…
[37] There is, I observe, a remarkable similarity between the block H advice read to Mr Gilbert to the effect that a reading of 51 to 80 milligrams of alcohol per 100 millilitres of blood would lead to a payment of an infringement fee of $700 advised to Mr Gilbert at l9:40pm and what Mr Gilbert claims Constable Sew-Hoy advised him at 19:52pm (12 minutes later) (that the cost of a blood sample being taken would be $720).
[38]Mr Gilbert accepted that he had consumed five beers.
…
[44] With doubt as to Mr Gilbert's evidence in my mind, and in my view, a lack of likelihood that the officer would construct in her mind a figure of
$720 as a cost, having accepted in her evidence that at the time she did not know what the actual costs were, I conclude that Mr Gilbe1i is mistaken as to his belief that the officer told him that the cost of testing would be $720. I believe it more likely than not that Mr Gilbert was confused by reference to the $700 infringement fee payable in respect of a positive blood test result referred to above.
[45] Having reached the above conclusion on the evidence, I find Mr Gilbert guilty as charged of driving with an excess content of alcohol in his breath ( 600 micro grams of alcohol per litre of breath).
Submissions
The appellant
[23] Mr Hoskin for the appellant submits that in his analysis and assessment of the facts the Judge erred in several respects. He says that the Judge erred in finding that the appellant did not specifically recall being asked to provide a breath test. And he submits that it was unfair of the Judge to find that the appellant was not sure whether or not he had blown into the same or a different device when he did provide his breath samples.
[24] Mr Hoskin submits the Judge erred in finding that the appellant could not recall being asked for a breath test. He notes that in his evidence in chief the appellant said that he had been asked by the officer to count into a machine that she put through his car window, and that he had given evidence that he was then asked to blow into another
machine, or possibly the same machine, after the officer had put “something on the end of it”. Mr Hoskin submits that it was unfair of the Judge to find that the appellant had blown into the same or a different machine when giving a breath screening test, when the appellant himself had said that he was unsure if it was the same machine, but that the officer had put something onto the end of it. He says that as the Police generally use the same machine for both a passive test and a breath screening test and attach a mouthpiece to the device for the breath screening test, the appellant’s recollection was not inconsistent with what had occurred.
[25] Mr Hoskin says that the Judge considered the interval of some 35 months between the events when he was stopped and tested and his trial on the charge, together with the alcohol he had consumed had impacted the accuracy of the appellant’s memory, but failed to take into account that the appellant had spoken to his counsel about what had happened the following day.
[26] Mr Hoskin submits that it was against the weight of evidence for the Judge to reject the appellant’s evidence as to what the officer had told him about his possible liability for medical and analyst’s fees of well over $700 if his blood alcohol level was found to have exceeded the legal limit. And counsel submits that there was no sufficient evidential basis for the Judge to find that the appellant was confused by the reference in Block H. Mr Hoskin says that the officer accepted under cross- examination that she has no recollection of what she told the appellant about the cost of a blood test, and also accepted the possibility that she could have given the appellant erroneous information about the cost of a blood test. He submits that having regard to the officer’s concessions, the Judge erred by failing to give appropriate weight to the appellant’s affirmative account of what he said he was told.
[27] Mr Hoskin further submits that the Judge erred in finding that what the appellant was told by the police regarding the likely delay that would be involved in waiting for the arrival of a nurse to take a blood sample was not something that would have had the effect of dissuading the appellant from requesting a blood sample. He submits that the information given to the appellant by the police officer had the effect of dissuading the appellant from to electing to have a blood sample taken, and the provision of this erroneous information resulted in unfairness to the appellant.
[28] Mr Hoskin submits that the evidence at trial does not support the Judge’s finding by which he preferred the evidence of the officer over that of the appellant as to what was said and what occurred. He submits that the only remedy which would deal with the consequences of the erroneous information given by the police to the appellant is for the result of the evidential breath test to be excluded pursuant to s 30 of the Evidence Act 2006, on the basis that it was improperly obtained evidence, and for the charge brought against the appellant to be dismissed.
[29] Although the appellant also appealed against that part of his sentence by which the Judge imposed a period of disqualification from driving for a period of six months, on the basis that because of the constraints of the COVID -19 lockdowns in 2020 and 2021 the Judge ought to have ordered that the disqualification period should commence on a date some six months prior to his decision so that the appellant would have already served his disqualification period, at the hearing of the appeal Mr Hoskin, as I understood him, effectively withdrew the sentence appeal. And he accepted that any backdating of the commencement of the disqualification was a matter of judicial discretion which he does not challenge.
The respondent
[30] Ms Reid for the respondent submits that the Judge did not err in his findings regarding the appellant’s difficulties recalling the events of 9 January 2020. Ms Reid notes that in the course of his evidence the appellant said that he did not recall a number of things that happened. Counsel notes that the appellant said he could not recall being asked to produce his driver’s licence. The respondent nevertheless accepts that when giving evidence-in-chief the appellant did not say that he did not recall being asked to undergo an evidential breath test. However when cross-examined he appeared to agree that he did not specifically recall being asked to undergo an evidential breath test.
[31] Ms Reid submits that in any event, even if the Judge erred in saying that the appellant had said that he did not specifically recall being asked for a breath test, such an error is not one that affected the outcome of the trial. Counsel notes that the Judge found that both the officer and the appellant had difficulties recalling details of what
took place, and the Judge’s findings and conclusion that the charge was proven was not based on his summary of the appellant’s evidence and recall of the breath test request process. Ms Reid says that having regard to the appellant’s uncertainty as to whether the same or a different machine was used for the breath screening test compared to that used for the passive test, it was open to the Judge to find that the appellant was not sure about it.
[32] The respondent submits that the Judge did not err in finding that the passing of time and the effects of alcohol consumption may have affected the accuracy of the appellant’s recall of events. Ms Reid notes that although the appellant said that he spoke to his lawyer the following day about what he said had happened, he did not give any evidence about his recall ability the following day. Ms Reid says that there is no identifiable error from the Judge having taken the passage of time and the appellant’s consumption of alcohol into account when weighing the different accounts of the officer and the appellant regarding what occurred and what he was told by the officer.
[33] The respondent submits that there was a sufficient evidential foundation for the Judge’s conclusions that on the evidence it was more likely that the appellant had been confused about the $700 infringement fee and what it related to than that the officer had erroneously stated that as being the cost he would be liable for if he elected to have a blood sample taken.
[34] Ms Reid says that the prospect of an hour long wait before a blood sample could be taken would not have had any effect on the appellant’s decision whether or not to elect to have a blood test. While the wait would be an inconvenience Ms Reid notes that there is no evidence that Officer Sew Hoy told the appellant that his right to elect a blood test would be affected by having to wait for the sample to be taken, and no evidence that the appellant had indicated that he would have elected to provide a blood sample had there not been a wait of up to an hour involved.
[35] The respondent submits therefore that there was no error in the Judge’s assessment of the evidence and no miscarriage of justice has occurred as a result of the conviction of the appellant on the charge.
Approach on appeal
[36] The Criminal Procedure Act 2011 provides a first right of appeal against conviction.4 The appellate court must allow a conviction appeal from a judge-alone trial if satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred or if it is satisfied that a miscarriage of justice has occurred for any reason.5 A miscarriage of justice means any error, irregularity, or occurrence affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial, or a trial which is a nullity.6
[37] When considering an appeal brought under s 232(2)(b) the Court must adopt the approach explained by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar:7
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[38] However, it is for the appellant to show that an error has been made, and in assessing whether there has been an error, an appellate court must take into account any advantages that a trial judge may have had. Where there is a challenge to credibility findings based on contested oral evidence an appellate court will exercise “customary caution”, because the trial will have provided the judge with the advantage of assessing the witnesses give their evidence and have a good opportunity to evaluate the strengths and weaknesses of a case and the plausibility of what the witnesses have said.8
4 Criminal Procedure Act 2011, s 229(1).
5 Section 232(2)(b) and (c).
6 Section 232(4).
7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16] (footnote omitted).
8 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
Discussion
[39] Although Officer Sew Hoy acknowledged at the appellant’s trial in November 2022 that she could not recall some of the details of her interactions with the appellant almost three years previously in January 2020, the reliability of her account of what took place essentially relied on the record she had made on the POL515 form, and having proceeded to follow the steps and wording set out in the form when speaking to the appellant and carrying out the breath screening and evidential breath test procedures. Although the officer made some errors in completing the form, including putting a circle around “No Alcohol” instead of “Alcohol” to record the result of the appellant’s passive breath test, the errors were not material and had no effect on the breath screening test that followed.
[40] I am satisfied that the officer’s evidence that she followed the POL515 form and read its contents to the appellant provides a clear and reliable record of what she told the appellant as she progressed through the steps following their initial conversation after he was stopped at the Police roadside checkpoint, and said that he had recently consumed around four to five bottles of beer.
[41] In the course of working through the POL515 breath and blood alcohol procedure sheet, the appellant was asked to sign the form to confirm that he had been advised of the matters set out on the preceding section of the form. He signed the form three times. He signed the form to acknowledge: being advised of his rights under NZBORA and that he had been advised of the reason he was being detained; being advised of the positive result of the evidential breath test; and to confirm that he did not want to speak to a lawyer prior to the commencement of the 10 minute period he was given to decide whether to elect to give a blood sample for testing.
[42] As I have noted above, after he had undergone a breath screening test which showed he had a breath/alcohol level over 400 micrograms of alcohol per litre of breath, the officer proceeded to read the appellant the contents of Block H of POL515. This included the appellant being advised that he was being required to undergo an evidential breath test, and being told that:
“If you are 20 years of age or over, and you do not hold an Alcohol Interlock Licence or a Zero Alcohol Licence, and you fail or refuse to undergo an evidential breath test when required, and your blood alcohol concentration is between 51 and 80 milligrams of alcohol per 100 milligrams of alcohol per 100 millilitres of blood, you will be liable to pay an infringement fee of $700.”
[43] In my view this information is an obvious source of the misunderstanding the appellant experienced regarding his possible liability for meeting the cost of medical expenses for an amount of $700. Although the officer accepted under cross- examination that as at January 2020 she had only recently joined the Police force some three months beforehand and although she had been carrying out duties on the “booze bus” for a month she had not previously had an instance of a driver electing a blood sample, and did not know that an analyst’s fee under the Transport Blood Test Fees Notice 2018 was $111.99, I do not consider her lack of experience or her lack of knowledge regarding the analyst’s fee, would have led to her misinforming and unintentionally misleading the appellant regarding the cost he might incur if he chose to have a blood sample taken.
[44] I agree with the Judge’s observation that the amount the appellant says the officer spoke to him about is remarkably similar to the sum of $700 referred to in Block H as being the infringement fee that would apply if the appellant failed or refused to undergo an evidential breath test when required and his blood/alcohol concentration was found to be between 51 and 80 milligrams of alcohol per 100 millilitres of blood. I also note that the appellant signed the POL515 form directly beneath that part of the form setting out that advice.
[45] Having been advised that he could be liable to pay an infringement fee of $700 if he refused to undergo an evidential breath test and his subsequent blood test result was between 51 and 80 milligrams of alcohol per 100 millilitres of blood, it is likely although he signed the form to confirm that he had been advised of his rights by an enforcement officer “as set out above”, he may have misunderstood what he was told. I find that there is no reliable evidence of the officer telling the appellant anything different than what is set out on the POL515 form, including what was read to him about his possible liability for a $700 infringement fee.
[46] Having regard to the fact that the appellant had been drinking alcohol in the recent period before he was driving and stopped and the effect of the alcohol is likely to have impaired his ability to focus his attention and remember what he was told with the same level of clarity as would be the case had he not been affected by alcohol, I find that the evidence well supports the Judge’s finding that the officer did not mislead the appellant either by telling him that he would be liable to pay a medical fee of $720 if he elected to have a blood test, or that the time involved in waiting for a nurse to come and take a blood sample was information that dissuaded him from electing to have a blood sample taken.
[47] In my view the Judge’s findings regarding whether or not the appellant could recall being asked to undergo a breath test and whether he could recall whether the same or a different machine was used for the passive test and the breath screening test, were not material in the Judge’s reasoning and conclusion regarding the charge. The appellant obviously could remember that he was asked to undergo an evidential breath test and he did recall that the officer connected something to the machine he was given for the breath screening test, while being unsure whether it was the same device as had been used for the passive test. However I do not consider that the Judge’s findings regarding those matters were of any weight or significance in relation to his finding and rejection of the appellant’s claim to have been told by the officer that he would be liable for a medical fee of $720 if he elected a blood test and his blood /alcohol level was found to be between 51 and 80 milligrams of alcohol per 100 millilitres of blood.
[48] In my view the Judge’s conclusion that the charge was proven and his reasons for rejecting the appellant’s claim were well supported by the evidence. I accordingly find that the appellant has failed to show that the Judge made an error or that for any other reason the entry of a conviction on the charge has resulted in a miscarriage of justice.
Result
[49]The appeal against conviction is dismissed.
[50] The appeal against sentence, having being withdrawn by the appellant’s counsel, is also dismissed.
Paul Davison J
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