R v Griffith[2004] QCA 110

SUPREME COURT OF QUEENSLAND

[1]  DAVIES JA:  After a trial by jury the appellant was convicted on 27 November 2002 of attempted murder, armed robbery with circumstances of aggravation and unlawful use of a motor vehicle with a circumstance of aggravation.  He was sentenced to life imprisonment on each of the first two of those counts and to 10 years imprisonment on the third.  A declaration was made with respect to pre-sentence custody of 41 days.  He appeals against his convictions and seeks leave to appeal against his sentences.

[2] The appellant was convicted after a joint trial with John Stephen Cole who was also convicted of the same offences.  Cole also appealed against his conviction and sought leave to appeal against his sentence and their appeals were heard by this Court together.  This judgment is being delivered on the same day as and immediately after that in the Cole appeal.

The appeal against conviction

(a)some undisputed facts

[3] Shortly before 3.40 pm on Wednesday 24 May 2000 a jewellery shop in Lavelle Street Nerang was held up by robbers at least one of whom was armed with a semi-automatic M1 carbine.  The shop was owned by Mr Visentin and his wife.  They were the only persons present in the store when the robbers arrived.

[4] Mr Visentin was alerted by the barking of his dog.  The next he knew was that a pane of glass which separated his desk from the public area of the shop was shattered upon the weapon being fired.  Mr Visentin's outline could be seen by those entering the shop through the pane of glass which was opaque on that side.  Further shots were then fired at Mr Visentin.  The first shot, which shattered the pane of glass, grazed Mr Visentin's cheek.  The ammunition used was hollow pointed and lead tipped.

[5] Upon being fired at, Mr Visentin reached for his weapon and fired it twice in the direction of the robbers.  He said that there were at least two, possibly more robbers.  He definitely saw two figures fleeing from the shop.  One or more of them took a quantity of jewellery.  He saw a light coloured vehicle racing off.

[6] During this exchange of fire Mr Visentin shot one of the robbers whose name was Peter Knox.  He collapsed outside the shop and died shortly afterwards.  He had a balaclava over his face and a pair of gloves on his hands.

(b)the circumstantial case

[7] The circumstantial evidence that the appellant and Cole were the other two robbers and that one of them, rather than Knox, had fired the shots from the carbine, were as follows.

[8] Ms Tapping who, with her husband, operated a business directly across the road from the jewellery shop was alerted by a noise.  She went out to the footpath to look and saw two people run out of the shop dressed in jeans, jumpers and with balaclavas on their heads.  One of them was carrying a long rifle.  They were running.  They ran about three or four metres to a cream coloured Ford car, one got in the back seat, the other in the front passenger seat and the car then drove off.  She noted its registration number.

[9] Mr Torrance was sitting in his utility motor vehicle which was parked in Lavelle Street Nerang in the vicinity of the shop when he heard what he thought were gun shots.  He got out of his vehicle and stood behind it so as not to be in shooting range if the shooting continued.  He then saw a man come running out with a bag and a gun, run round the back of a car, a mustardy coloured Falcon, to the driver's side, jump in the driver's seat and drive off.  He saw only one man come out of the shop but as he was in the process of walking round to the back of his vehicle he was not looking in the vicinity of the shop continuously from when he first heard the shots.  The man whom he saw had a balaclava over his head and he thought he had jeans on.  He then went over to the shop and saw another man lying outside the door.  This was, of course, Knox.  He could not say whether the man he saw coming out of the shop had gloves on or not.

[10]  Ms Hemus came to Lavelle Street on business that afternoon, parked her car and walked along Lavelle Street.  She heard loud banging sounds.  Then she saw what she described as an older car "flying around the corner", saw the side rear door of it open and saw something fall out onto the roadway.  She went over to it to find it was a bag in which there was jewellery identified as coming from the shop.  She returned it to Mr Visentin.  Police found blood on this bag which was found later to have the same DNA profile as Cole.

[11]  Mr Raymen was a security guard then employed by Brambles Security Services.  On that afternoon he was in the course of performing banking services for his employer at the ANZ Bank on the corner of Lavelle and Price Streets.  For that purpose he drove into Lavelle Street and parked in a parking area off Lavelle Street facing towards the shops.  He was about to turn his engine off when he heard four or five dull thuds which he instantly associated with gun shots.  They were coming from inside a building.  He had been a police officer for some years and a security officer for 13 years.  He saw two people emerge from the shop, the first, wearing a balaclava, ran off to his left, the second fell face down on the footpath.  This again was Knox.  During at least part of this Raymen was lying down towards the dashboard of his car the engine of which was still running.  He then noticed a 1979 or 1980 XD Falcon in poor condition accelerate rapidly down Lavelle Street.  He did not notice anyone enter that vehicle.  He then followed the vehicle to Short Street Nerang where it pulled up outside the State school next to a white AU model Ford Falcon.  He did not see the occupants of the first vehicle alight and enter the AU model Ford.

[12]  However Mr Knight who had also been parked in Lavelle Street heard what he thought were gun shots and saw two men run out of the shop and get into an old Falcon sedan which he described as a "creamy beigy" coloured old XD Falcon.  He thought that one of them got into the driver's seat.  He was not sure whether the other entered the passenger side front or the passenger side rear of the car.  Like Mr Raymen he also followed it to Short Street where he actually saw two men leave the old Falcon and enter a late model white Ford sedan car.  Mr Byrnes, who was parked in Short Street at the time, also saw an old Falcon, with two men in it, driving very fast into the street.  It screeched into one of the parking bays and two men jumped out and into a newer model white car which he thought was a Commodore.  He thought one of these men was carrying something like a tyre lever.

[13]  Both Raymen and Knight then followed the late model white car along the Southport Road until it turned left onto a dirt track which led to a depot.  Mr Raymen stayed at that turnoff;  Mr Knight did not.

[14]  Mr Smith, a truck driver, had left that depot and, as he travelled along the dirt road back to where it joined the main road, he saw two men with two vehicles parked beside the track.  One of the vehicles was a white Ford and the other was a white Mitsubishi or Mazda.  Mr Raymen, who was still parked at the point where the dirt track joined the road, saw a Mitsubishi Cordia registered number 869DPJ come down the dirt track a few minutes after he had seen the Ford go up it.  There were only two persons in the Cordia.  The Cordia belonged to Cole.

[15]  When the police inspected the Ford which had been left beside the dirt track they saw a pair of gardening gloves and a balaclava between the two front seats.  A second balaclava was found on the floor of the vehicle on the front passenger's side.  It was admitted that these balaclavas were sold only by Kmart.  Police found blood in the front of the white Ford, mainly on the passenger's side.

[16]  The Cordia was found abandoned in a public car park.  Police found blood on the driver's side in the Cordia.  Inside, the police found a bloodied towel, bloodied tissue paper, a Coke bottle and a mobile phone.  It was established that on 2 May 2000 that telephone, which belonged to Cole, had rung Mr Visentin's shop.  The call lasted 11 seconds but may not have been answered.  Cole made no report to police about his vehicle having been stolen.

[17]  The blood found in the Cordia and on the tissue paper, a Coke bottle and the towel, all had the same DNA profile as Cole.  One of the balaclavas found in the white Ford had, on a large and prominent stain, a DNA profile which was that of the appellant.  The other had on it DNA profiles of both Cole and Knox.  The blood found on both the gloves found in the white Ford had the same DNA profile as Cole.

[18]  On 27 May 2000 police searched the premises then occupied by the appellant.  In an area under the house they found a plastic bag which contained a Kmart receipt for three pairs of gardening gloves and an unopened package containing gardening gloves.  These gloves were of the same kind as those found in the white Ford and on Knox's dead body.

[19]  In a shirt under a pile of palm nuts in a corner of the back yard police found 12 .30 carbine cartridges and some items that seemed to belong to a weapon.  Spent and unspent .30 M1 carbine cartridges had also been found in Mr Visentin's shop and a police ballistics expert was able to say from a comparison of marks found on the spent cartridges that those found in the appellant's yard and those found in Mr Visentin's shop had been worked through the same firearm.  At the appellant's premises the police also found a diamond testing kit and a scanner.

[20]  An employee of Kmart at Pacific Fair Broadbeach identified the receipt for the gloves as a receipt he had issued at 10.20 am on the day of the robbery.  He identified the gloves as gloves that Kmart stocked.  Mr Phillips, also an employee of Kmart, saw Cole in the gardening section of Kmart on that day.  He had known Cole for some years.  He described Cole as being present in the company of a "feral" who was badly dressed, in his mid-30's and unshaven.  His evidence in this respect was not challenged by Cole's counsel.  Phillips asked Cole what he was doing and Cole said that he was buying gloves because he was moving house or doing something around the house.  Phillips saw Cole remove gloves from the shelf and take them to the cash register.  On 1 June 2000 Phillips identified Cole's companion from a police photo board as the appellant.

[21]  When interviewed by police on 26 May the appellant admitted to being in Nerang on 24 May, the date of the robbery.  He was staying at his girlfriend's house at No 23 Mount Street Nerang.  He also admitted that he knew a Peter Knox.  He said that he did not think he went shopping on 24 May.

[22]  There was one other piece of circumstantial evidence on which both the appellant and the prosecution relied.  This was the evidence of Mr McGovern who lived at No 25 Mount Street, next door to No 23.  The house was only two to three minutes drive from the school on Short Street.  At about 3.12 pm on the day of the robbery he saw the appellant walking from the school with McGovern's child and the little girl who lived at No 23.  The prosecution relied on this to show that the appellant would have had the opportunity to commit the robbery at the time at which it occurred.  The appellant relied on it to show that he could not have completed walking the children to their homes and have got to the shop by the time the robbery occurred.

[23]  Before turning to the evidence which was the subject of the appellant's ground of appeal it should be noted that, on this circumstantial evidence alone, there was a strong prosecution case that the appellant was one of two men who had entered and left the shop alive on the afternoon in question, one of them carrying a gun.

(c)the ground of appeal

[24]  There was only one ground of appeal which was in the following terms:

"The learned trial judge erred in not telling the jury, with the authority of his office, those matters that should be taken into consideration in determining whether they would rely on the testimony of police regarding the opportunity to fabricate evidence against the Appellant, thereby occasioning a miscarriage of justice."

[25]  In his report to this Court the learned trial judge noted two matters.  The first was that a transcript of addresses would show the extent to which, by the end of the trial, the defence case rested on the possibility that "police … " had "the opportunity to fabricate evidence … ".  And the second matter which his Honour noted was that there was no request for a direction of the kind now contended for notwithstanding that his Honour had, in advance and in writing, given experienced counsel for the appellant a preview of what he intended to say on substantial questions and had invited counsel to make submissions concerning them.

[26]  It was accepted by counsel for the appellant in this Court that no such direction was sought.  Nevertheless it was submitted that his Honour was obliged to give such a direction.  It may be accepted that the failure to ask for such a direction was not fatal.  The question is whether, in all the circumstances, including the failure to ask for such a direction, one should have been given.

[27]  As to the first matter raised by his Honour in his report to this Court, it is true that at the trial the only suggestion of police fabrication appears to have been with respect to the means by which the appellant's DNA came to be on the balaclava.

[28]  Mr Smith, for the appellant, in his submissions to this Court, submitted otherwise, referring us to a number of passages in the closing address of counsel who then appeared for the appellant.  His submission was that counsel for the appellant, in those passages, submitted that the jury should find some fabrication by police in the circumstances in which Mr Phillips, from a photo board, purported to identify the appellant as the person whom he had seen in Kmart with Mr Cole on the morning of the robbery.  However those passages, in my opinion, show only, at most, that counsel for the appellant was submitting to the jury that, because there had been some defect in the photo board identification procedure, this may have prompted later fabrication with respect to the finding of the appellant's DNA on the balaclava.  Consequently the appellant's ground of appeal relates only to the possibility that police fabricated the DNA presence on the balaclava.

[29]  The suggestion which was made to Mr Stevens, a police officer who had collected a pair of gloves and two balaclavas from the Ford motor vehicle which had been left just off the dirt track, was that he had contaminated one of the balaclavas with the appellant's saliva thereby enabling a finding by the scientific expert that there was DNA on that balaclava consistent with that of the appellant.  A similar suggestion was made by the appellant's counsel during the course of his address.

[30]  A saliva sample was taken from the appellant's mouth on a piece of cotton wool.  According to Dr Levy who took the sample, one piece of cotton wool only was used.  In cross-examination, the Doctor remained adamant on that point.  The cotton wool ball then went directly from the appellant's mouth into a plastic bag.  According to Dr Levy there was no free liquid.

[31]  Dr Levy's evidence that only one cotton wool ball was used was supported by Detective Whyte in his evidence-in-chief.  He was present when the sample was taken.  However, having said that, he was asked, somewhat unfairly in cross-examination "Do you remember this sequence, that he was given cotton balls to chew on, balls of cotton wool to chew on?", to which he answered "I think - I think that was the case, yes".  Some slight doubt was also cast on Dr Levy's evidence in this respect by an entry in the Major Incident Exhibit Book which read "mouth swabs".  However the officer who made that entry said that, when he gave evidence, he was guessing as to whether in fact there was one or two.

[32]  If there was only one cotton ball it could not have given the DNA reading on the balaclava which was taken from a readily observable stain on it.  The scientist who took the DNA sample from that stain, Ms Bentley of the John Tonge Centre for Forensic Science, gave the following evidence:

"I want to go back to something that Mr Feeney asked you about, and that is the way in which saliva might have been wiped or somehow applied to the beanie which is 7B.  If, though - and I'm not concerned about any scenario other than this one - if, though, the saliva had been obtained in the manner that I described to you yesterday, that is chewing on a ball, a cotton wall ball, spitting it out with no excess liquid saliva apart from that, could that saliva, the saliva contained in that ball, have been used to reproduce what you found when you examined the balaclava?--  I doubt very much whether it would produce such a heavy crusty stain visible to the naked eye.  I doubt that there would be sufficient present."

[33]  The position was even worse than that for the appellant.  Ms Bentley went so far as to say that it would have required at least two millilitres of saliva to have caused the stain on the balaclava from which the DNA reading was taken;  that is, a lot more than would have been yielded by one or even two such cotton balls.  So the appellant's theory at trial that the police had fabricated his DNA on the balaclava by rubbing it with one or even two cotton balls impregnated with his saliva was not a scientific possibility.

[34]  In any event, the evidence relied on both at trial and before this Court to show police dishonesty was that which was said to prove that proper procedures may not have been followed in labelling and sealing bags containing, amongst other things, the balaclava and the saliva sample;  and that the saliva sample was lost.  This showed, at most, a careless failure on the part of police to follow acceptable and accepted procedures in the labelling, packaging, transport and collection of evidence for DNA testing.  The evidence with respect to the movement of the balaclava and the saliva was, in short compass, as follows.

[35]  First, as to the balaclava, Constable Kerrigan saw two balaclavas in the Ford motor vehicle when its engine was still running.  Constable Parker also saw them and was present when Senior Constable O'Reilly photographed them.  O'Reilly then put the balaclavas in separate bags and gave them to Constable Parker.  Constable Parker gave them to plain clothes Constable Stevens.  Stevens received them in separate bags and put numerical and alphabetical labels on each.  He then lodged them in the property office under a receipt.  On 7 June 2000 Detective Smith took the balaclavas to the Police Scientific Section.  On 21 December 2000 a scientist in that section examined the balaclavas.  They had, in the meantime, been stored in a refrigerator as it was understood that they would be required for later DNA analysis.  Stevens collected the balaclavas and delivered them to the John Tonge Centre on 16 February 2001.  Ms Bentley of the John Tonge Centre confirmed receipt of them on that day.

[36]  As to the saliva, Detective Garnett took possession of the cotton wool ball impregnated with the appellant's saliva.  On 1 June 2000 Whyte removed it and other samples from the refrigerator and took them to the John Tonge Centre.  He prepared a "Submission of Article" form and took that form to the John Tonge Centre and gave it to a woman.  He did not notice any discrepancy between what he lodged and the receipt which he received from that woman.  The receipt had the word "saliva", which had been on the form, crossed out.  Ms Bentley confirmed that samples labelled as having been obtained by Dr Levy with respect to Griffith were received at the John Tonge Centre.  She was unable to locate saliva or hair.  This was not surprising because, she said, saliva was regularly rejected as the John Tonge Centre no longer used saliva for DNA profiling if there was a blood sample.

[37]  So the most likely explanation with respect to the missing saliva is that it was delivered to the John Tonge Centre but rejected by it.  If there was incompetence on the part of the police it was only in failing to record that fact.  Detective Whyte said that on one occasion, he could not remember whether it was this one, the John Tonge Centre had rejected a saliva sample and had offered to dispose of it;  an offer which he had accepted.  That may have been what happened here.

[38]  For those reasons in my opinion, there were no specific matters which should have been taken into account by the jury, and which the learned trial judge should have directed them to take into account, in determining whether to rely on the testimony of police witnesses.

[39]  The appellant also relied upon the case of Sultana[1] in support of a submission that a "McKinney direction" should have been given by the judge to the jury.  In Sultana the following principle from Green's[2] case was cited by Sully J:[3]

"Nevertheless whenever proof of a significant fact tending to establish guilt rests on the evidence of a single witness uncorroborated the jury should be directed as to the need to scrutinise that evidence with care.  The situation is not significantly different when two police officers working in tandem give similar evidence uncorroborated by any other source."

However the principle is not relevant in the present case.  Section 632(2) of the Criminal Code provides that a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of a witness;  and s 632(3) provides that the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses.  To have given a direction of the kind for which the appellant contended, in the circumstances of this case, would have been to transgress this last prohibition.

[40]  It follows from what I have said so far that I would reject the appellant's only ground of appeal and consequently would dismiss his appeal against conviction.

2.Sentence

[41] As already mentioned the appellant was sentenced to life imprisonment.  His co-offender Cole was sentenced to an effective term of 19 years and three months imprisonment.  The learned sentencing judge who sentenced them both thought that they were equally responsible for the attempted murder and robbery.  He distinguished between them only because the appellant had a much more serious criminal history than Cole.  I shall return to that a little later.

[42]  In considering this sentence it needs to be borne in mind that, upon a life sentence, the appellant became eligible for parole after serving 15 years.[4]  If a sentence of a fixed term had been imposed on him, he would have been required to serve 80 per cent of that term or 15 years, whichever is the lesser, before he was eligible for parole.[5]  So he would become eligible for parole at about the same time as Cole.  I mention this because Mr Smith on his behalf contended for a sentence of between 17 and 20 years;  that is, about the same as that imposed on Cole.

[43]  Although it may not be possible to infer, as it was in the case of Cole, that the appellant knew that on a previous attempted robbery of this shop Hayden had shot both of the robbers, it may nevertheless be inferred that the appellant was involved with Cole in considerable pre-planning of these proposed crimes.  He was seen with Cole purchasing gloves used in the robbery on the same morning.  It is reasonable to infer that they purchased the Kmart balaclavas at the same time.  They had stolen two vehicles to be used successively as getaway vehicles and had hidden Cole's car at a fairly remote location.  And the high-powered carbine used as the weapon in the attempted murder of Mr Visentin had, it seems, been in the appellant's possession and use beforehand.  I think it is reasonable also to infer from all of this and what in fact occurred when they entered the shop that the appellant was a party to a cold-blooded plan to shoot the proprietor, or whoever might have a gun which could be used against them, in order to enable them to commit the robbery without risking being shot at.

[44]  Because the commission of these offences involved a cold-blooded plan to shoot whoever was in charge of the shop, this was an unusually serious case.  It is necessary to bear this in mind in considering other sentences for attempted murder to which we were referred by way of comparison.

[45]  It was not established who fired the gun and I do not think that matters.  As counsel for the respondent pointed out, given the facts to which I have referred, his Honour was entitled to sentence on the basis that the appellant was a principal offender pursuant to s 7(1)(b) of the Criminal Code.

[46]  His Honour described these as terrible crimes with awful consequences, especially for Mr and Mrs Visentin.  That is undoubtedly true.  Mrs Visentin said that the incident destroyed their way of life.  Their business was destroyed and the psychological consequences to each of them has placed considerable strains on their marriage.  All of this, it seems to me, is an understandable consequence of these terrible crimes.

[47]  It is true that the appellant had a much more serious criminal history than Cole.  It included a sentence of 10 years imprisonment in 1988 for one offence of rape, one of attempted rape, two of indecent assault on a female and one of breaking and entering a dwelling house;  a sentence of six years imprisonment imposed in the same year for breaking and entering a dwelling house with intent, attempted extortion, written threat to kill, three charges of false pretences and a further six charges of breaking and entering a dwelling house with intent;  a sentence of six months imprisonment again in 1998 for attempting to escape from prison;  a further five months imprisonment in the same year for taking part in a riot;  a sentence of eight months imprisonment in 1997 for being unlawfully at large from home detention;  and numerous offences of dishonesty and drug offences.  He was 40 years of age when he committed these offences and 42 when he was sentenced.

[48]  The appellant had no redeeming features.  Indeed the learned sentencing judge said of him, correctly in my view:

"Your antisocial tendencies and your propensities for life threatening crime are so great, and your prospects of rehabilitation in the years to come appear so slight, that the most careful consideration will need to be given to any application you might ever make for release from custody."

[49]  Four decisions of this Court were cited by way of comparison.  They were, in chronological order, Pittas CA No 29 of 1989, Macaulay CA No 540 of 1994,[6] Streeton CA No 99 of 1997[7] and Palmer CA No 21 of 2002 and CA No 122 of 2002.[8]

[50]  In Pittas the appellant attacked the complainant in the latter's garage by striking him on the back of the head with a very solid object, jumping on top of him, throwing punches at him, throwing a brick at him and finally stabbing him three times with a knife.  The attack was inexplicable;  the complainant did not know the appellant and had offered him no apparent reason for the attack.  The appellant was convicted of attempted murder and sentenced to 20 years imprisonment which this Court said was not manifestly excessive.

[51]  In Macaulay the appellant who was convicted of attempted murder and armed robbery was sentenced to an effective term of 21 years.  He was involved in an armed robbery which was well planned and carried out in an extremely determined and ruthless fashion.  The attempted murder which was committed in the course of his escape was a brutal one.  He fired at his pursuer with a shotgun three times at close range.  Also against the appellant in that case was that he had a criminal history which included an armed robbery with actual violence for which he had been convicted only a year before the commission of these offences.  On the other hand, in that case consideration was given to the appellant's youth.  He was only 21 years of age when he was sentenced.

[52]  The offences in Pittas and Macaulay were brutal but neither, it seems, was committed with the cold-blooded intention to kill as there appears to have been in this case.

[53]  In Streeton the offender, for no explicable reason, entered a school playground carrying a five litre petrol tin, poured the contents or most of it over a young child of six years and set fire to him with a cigarette lighter.  He later went to a police officer saying that he wanted to turn himself in, he wanted the death penalty and that he had just attacked a kid and set him alight.  As might be expected the victim's injuries in this case were horrendous.  He was fortunate not to die but had to live through 12 operations and four months in hospital.  He was left with full thickness burns to 70 per cent of his body.  This Court thought that the life sentence which was imposed on the appellant was not only not excessive but was appropriate in the circumstances.

[54]  It is difficult to compare the sentence imposed in Streeton with that imposed here.  There the crime was a particularly horrific one and involved some element of pre-planning;  the purchase of the petrol and a cigarette lighter.  Here, by contrast it was the cold-bloodedness of the plan to enter the shop firing a volley of shots at the person behind the counter in order to kill him before he might fire on the offenders, which made this crime so serious.

[55]  In Palmer the offender attempted to kill a police officer in order to avoid arrest.  He had armed himself with a gun because he was involved in drug activities.  He fired one shot at an officer in a pursuing vehicle whilst attempting to escape its pursuit.  He was a young man, 24 at the time of the offences, but he had an extensive criminal history including two of assault, one of assault occasioning bodily harm and one of assault occasioning bodily harm in company.

[56]  Whilst this Court thought that there was a degree of premeditation involved in Palmer's attempt to kill the police officer, it was very much less than the premeditation involved here which included a cold-blooded plan to enter the shop and kill whoever might stand in the offender's way.  Moreover the appellant had an even more serious criminal history than Palmer.  Viewed in that light the sentence of 17 years which was imposed on Palmer and which this Court refused to conclude was manifestly excessive, was not inconsistent with the life sentence imposed here.

[57]  Bearing in mind that the appellant's shocking previous criminal history justified the imposition of a sentence heavier than that imposed on Cole I do not think that, in the circumstances as I have outlined them, the sentence of life imprisonment was manifestly excessive.  I would therefore dismiss the application for leave to appeal against sentence.

Orders

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence dismissed.

[58]  McPHERSON JA:  I have read the reasons of Davies JA in this appeal.  I agree with them.  The appeal against conviction should be dismissed and, with it, the application for leave to appeal against sentence.

[59]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Davies JA wherein the matters raised by counsel for the appellant with respect to conviction and sentence have been fully analysed.  There is nothing I can usefully add to what is said therein.  I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.