R v Wright[2012] QCA 212

SUPREME COURT OF QUEENSLAND

1. CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Gotterson JA.  I agree with the orders proposed by His Honour, and with his reasons.

2. HOLMES JA: I agree with the reasons of Gotterson JA and the orders he proposes.

3. GOTTERSON JA:  The appellant, Craig Anthony Wright, was tried in the Supreme Court on the following three counts:

• Count 1 – an offence against ss 11.1 and 307.6(1) of the Criminal Code Act 1995 (Commonwealth Code) of attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely, amphetamine;

• Count 2 – an offence against s 307.6(1) of the Commonwealth Code of possessing a marketable quantity of an unlawfully imported border controlled drug, namely, amphetamine;

• Count 3 – an offence against s 9(b) of the Drugs Misuse Act 1986 of unlawfully having possession of the dangerous drug, lysergide, in a quantity that exceeded 0.004 grams.

All offences were alleged to have been committed on or about 20 December 2007. 

4. Prior to the trial, a pre-trial hearing had taken place over three days in May 2011. Following that hearing, rulings were made on 24 June 2011 concerning the admissibility of a record of interview of the appellant and the liability to exclusion of evidence obtained in exercise of a search warrant which the appellant contended had been invalidly issued.

5. The trial commenced on 30 September 2011 and occupied some five days. The appellant was legally represented by Mr Mumford of counsel who was instructed by the appellant’s solicitors. The appellant gave evidence on the third day of the trial but adduced no other evidence. The defence closed its case shortly before the Court adjourned for that day.

6. On the morning of the fourth day of trial, following argument, the learned Judge ruled that the appellant had not discharged an evidential burden and that in consequence, he proposed not to put a defence of duress to the jury. Shortly before the luncheon adjournment, the appellant’s counsel intimated that an application would be made to re-open the defence case to adduce evidence from the appellant, with a view to discharging the evidential burden.

7. Upon resumption, the appellant’s counsel informed the Court that, over the luncheon break, he had sought further instructions from his client with respect to the application. He explained that his instructions “had changed to a significant extent” with the consequence that if the appellant wished to persist with the application, neither he nor his instructing solicitors could continue to act for the appellant.

8. What happened thereafter is closely connected to a ground of appeal and is outlined later in these reasons. It is sufficient at this point to note that counsel and his instructing solicitors sought, and were granted, leave to withdraw. The trial continued with the appellant representing himself. The application to re-open was not pursued by the appellant. The Crown addressed that afternoon.

9. At the commencement of the final day of the trial, 6th October 2011, the appellant addressed the jury for several minutes. The learned Judge summed up. After deliberation for a little over an hour, the jury returned verdicts of guilty on each of the three counts. The appellant was self-represented during submissions on sentence which followed.

10. That day the appellant was convicted and sentenced on each count. The sentence imposed for each of Counts 1 and 2 was seven years imprisonment to be served concurrently, with a single non-parole period of four years. The sentence imposed for Count 3 was three years imprisonment, also to be served concurrently.

Appeal and grounds of appeal

11. The appellant appealed against his convictions and having been granted an extension of time to do so, applied for leave to appeal against sentence. On 17 May 2012, the Registrar of this Court received from the appellant an Amended Notice of Appeal (Form 26) which reformulated and expanded considerably upon the grounds of appeal against conviction. This document had been prepared with the assistance of different counsel who subsequently represented the appellant at the hearing of the appeal and the application for leave to appeal on 14 June 2012.

12. The Amended Notice of Appeal set out two grounds against conviction on all counts, namely:

• That the jury verdict was unsafe and unsatisfactory; and

• That certain rulings and determinations made at the pre-trial hearing and at the trial had caused a miscarriage of justice.

There was a third ground specific to Count 2, namely, that there was insufficient evidence for the jury to be satisfied that the substance in question was unlawfully imported.

13. The challenge to the rulings and determinations of the learned pre-trial Judge was designated in the Amended Notice of Appeal as ground 2(i) and that to those of the learned trial Judge as ground 2(ii). Particulars of each of Grounds 2(i) and 2(ii) were given in the document. At the commencement of the hearing of the appeal, counsel for the appellant informed the Court that Particulars (e)(i), (ii) and (iii) of Ground 2(ii) and Particular (d) of Ground 2(i) were not pursued. Leave was given to the appellant to amend accordingly. The live grounds of appeal are set out in the course of these reasons.

Factual circumstances

14. The appellant’s written submissions contain a brief summary of facts which the respondent accepts, subject to one matter considered later in these reasons. That matter put to one side; the summarised facts are as follows:

• On 14 December 2007 an Australian Customs Service (“ACS”) staff member at the Clyde Gateway facility in Sydney intercepted a postal package addressed to “Mr. Brain (sic) Pert” at 21 Paluma Crescent, Sunshine Beach Queensland;

• Australia Post personnel opened the package and undertook a non-conclusive presumptive test which yielded a substance positive result indicative of amphetamine;

• The package was sealed by ACS officer Button and following storage in a safe, was transferred to the Australian Federal Police (“AFP”) at which point AFP seals were also applied to it;

• After handling by AFP personnel in inner-Sydney, the package was collected by Federal Agent O'Brien who delivered it to AFP scientific officer Farrugia in Brisbane on 19 December 2007;

• The package had several layers of external wrapping by the time Farrugia took delivery of it.  She unwrapped every layer, then took samples of the contents for analysis and took photographs of the contents;

• Upon analysis by her, the contents were found to contain 69 per cent pure amphetamine, with a total pure weight of 681 grams.  The impure weight was 987 grams.  This is the quantity of amphetamine which constitutes Count 1;

• Farrugia then re-constructed the package, substituting an inert substance for its contents.  A controlled delivery of the reconstructed package was made by an AFP under-cover postal worker on 20 December 2007 to 21 Paluma Crescent, Sunshine Beach, the residence of Julie Backhouse;

• On the preceding day, the AFP had applied for and obtained a certificate authorising the controlled operation.  At that point, the persons of interest were Backhouse and two others, Watson and Plodderer;

• On the appellant’s account of it, when neither Watson nor Plodderer had called to collect the package from Backhouse in accordance with an arrangement previously made between them, Plodderer telephoned him around 2 pm on 20 December.  At the trial, his evidence was:

“… He rang me by telephone and said, “The parcel’s at Julie’s. Go and get it or you’ll know what'll happen if you don’t.” I told him I’d been drinking again on the day and he just said, “Well, you better get your dad to take you.”

And how soon was it that you received - or how soon after was it that you received this call that you spoke to anyone about picking the parcel - picking up the parcel?-- That was around 2 o’clock, and then he just sent me Julie’s number, and I rang her and she said she’ll be at home at 4 o’clock.”^[1]

• The appellant then telephoned his father, David Wright, for assistance with transport.  The two drove to 21 Paluma Crescent, the appellant collected the package from Backhouse, and they then drove to the appellant’s residence in Buderim Pines Road, Buderim.  Later, they travelled together to Warana to collect Plodderer’s utility, returning by separate vehicles;

• By arrangement with the appellant, David Wright, took the package to his residence in Merlo Crescent, Buderim.  Shortly after his return at about 5 pm, AFP personnel arrived to execute a telephone search warrant;

• At that point, David Wright was standing in the open garage near the package.  Its outer wrappings had been removed.  The inert substance, still in its wrapping, was in a bag.  At that time, David Wright made a number of admissions to police (primarily to Federal Agent Andalis) during an interview that was recorded;

• Afterwards, several of the AFP personnel, including Federal Agent Grant, travelled to the appellant’s residence.  They searched the premises.  Whilst there, they located another smaller quantity of amphetamine along with an amount of lysergide in the form of “trips” or tablets.  These respectively constitute Counts 2 and 3; and

• At that time, the appellant made admissions (primarily to Federal Agent Grant) with respect to the three quantities of drugs during an interview that also was recorded.

15. I now turn to the grounds of appeal. It is convenient to consider first the ground that the appellant put at the forefront of both the written and oral submissions.

Ground 2(ii)(a), (b) and (c) – refusal of an adjournment

16. This ground is based upon a sequence of events at trial that followed immediately upon the intimation by Mr Mumford of counsel that both he and his instructing solicitor could not continue to act if the application to re-open was to be pursued. Those events are outlined in the paragraphs which immediately follow. They occurred in the vicinity of 3 pm on the fourth day of the trial.

17. The learned Judge then addressed the appellant directly. In response to a question, the appellant said that he understood that his counsel could not act for him any more. Asked what he wished to do, he said that he wished to instruct “Paul Donnelly” to act for him. Apparently, Mr Donnelly is a lawyer who had previously acted for the appellant and had been in court at times during the course of the trial, but, apparently was not present when the appellant mentioned his name.

18. Mr Donnelly was located in the court precincts. He was asked by the learned Judge if he was ready to proceed. He said that he was not, stating that he had never seen the transcripts of evidence. Specifically, he stated that he would be disadvantaged if he had to proceed with the application to re-open that day, and certainly would not be in a position to address that day.

19. Mr Donnelly requested a short adjournment for five minutes to discuss with the appellant whether he was prepared to accept the latter’s instructions. At that point, the learned Judge expressed some frustration with, as he termed it, constant interruptions for the appellant to give further instructions as matters arose, and referred to his desire to complete the trial. The court was not adjourned.

20. The learned Judge indicated to Mr Donnelly that the appellant was in the dock and that Mr Donnelly might speak to him there. The record does not disclose whether Mr Donnelly did so. The dock was equipped with a live microphone. It was necessary to press a “mute” button to deactivate it.

21. Shortly thereafter, Mr Donnelly informed the learned Judge that he would not be acting for the appellant and that the appellant would be addressing the jury himself. The learned Judge then asked the appellant if he understood what Mr Donnelly had said to the Court to which he replied: “Not really”.

22. The learned Judge informed the appellant that Mr Donnelly was not going to represent him and that he would be conducting the rest of the trial on his own behalf. The appellant confirmed several times that he understood what the learned Judge had just said to him.

23. At that point, Mr Mumford and his instructing solicitor were formally given leave to withdraw. The learned Judge then reminded the appellant that prior to the luncheon adjournment, his counsel had begun to make an application to re-open in order to lead further evidence on his behalf. The appellant was asked whether he was still making the application or whether he just wished to proceed to addresses before the jury. He said that he wished to proceed to addresses.

24. The appellant complains that his trial miscarried because he was not given a full opportunity to present his defence. It is submitted on his behalf not only that the refusal of an adjournment for five minutes deprived him of the opportunity to confer with Mr Donnelly about his future legal representation at the trial, but also that the learned Judge’s resistance to Mr Donnelly’s intimation that he would need an adjournment of longer duration either to argue the application to re-open or to address the jury about making the application, placed Mr Donnelly in a position where he was reluctant to accept engagement by the appellant.

25. I note at this point that the application to re-open was potentially very significant to the appellant’s defence. As counsel had foreshadowed, the purpose of the re-opening was to adduce evidence going to duress. Section 10.2(1) of the Commonwealth Code absolves a person from criminal responsibility for an offence he or she carries out where the conduct constituting the offence is carried out under duress. The three matters as to which a person must hold a reasonable belief for duress to be established are set out in s 10.2(2). 

26. I have referred to evidence of a threat made by Podderer to the appellant. The appellant also gave evidence of other threats made to him by Podderer, including a threat of grave harm to his girlfriend and child.  In that respect, Podderer referred to Maurice.  According to the appellant, Podderer said that Maurice was concerned that he, the appellant, wanted to pull out.  In cross-examination, the appellant said that he understood Maurice to be Podderer’s supplier and contact to an Amsterdam-based drug supply ring. 

27. The learned Judge was satisfied that there was sufficient evidence to go to the jury of reasonable belief on the appellant’s part of threats in respect of Counts 1 and 2, the s 10.2(2)(a) matter.^[2]  However, he was not satisfied that the appellant had discharged the evidential burden in respect of the matter in s 10.2(2)(b), namely, a reasonable belief that there is no reasonable way that the threat can be rendered ineffective.^[3]  Section 13.3(6) of the Commonwealth Code casts the evidential burden in terms of a reasonable possibility that a matter exists or does not exist.

28. Following the ruling on duress, the appellant’s counsel briefly outlined the nature of the evidence that the appellant would give if leave to re-open was granted. It related to reasons why he had not told the police about Maurice or the threats and activity of Podderer. With regard to Maurice, the evidence would be that the appellant thought that he was an undercover police operative.

29. That evidence could have had relevance to the defence of duress, particularly it could have had relevance to the matter in respect of which the learned Judge had thought that the evidence was deficient. A reason or reasons not to tell the police of threats could constitute evidence of a reasonable belief that there is no reasonable way that the threats can be rendered ineffective.

30. Reliance was placed by the appellant on the decision of the Full Court in Victoria in R v McGill^[4] in which the Court^[5] concluded that a trial Judge’s refusal to allow an adjournment for an hour or two to allow freshly briefed counsel to take instructions was unreasonable.  The Court expressed the factors that influenced it to that view as:

“… [I]n the first place, the adjournment sought was short; in the second place, there was no reason to think that this adjournment would appreciably embarrass or inconvenience the Crown; in the third place, lack of instructions to or lack of preparation by counsel might and probably would handicap the defence; in the fourth place, the refusal created a situation inconsistent with the requirement that justice should appear to be done.”^[6]

A little later, the Court observed as follows:

“It is essential to the administration of justice that the standards required to secure a fair trial according to law should be insisted upon.  One of these standards is that an accused person must be given full opportunity to present his defence.  In the present case that standard was not, in our opinion, observed. …”^[7]

31. The circumstances here are comparable to those in McGill.  The adjournment sought was short, initially for five minutes.  Had alternative representation been secured, an adjournment to the next day only was in prospect.  No appreciable prejudice or inconvenience to the Crown from either adjournment is suggested.  The potential prejudice to the appellant from refusal of the adjournment was significant.  He was ill-equipped either to argue the application to re-open or to address the jury. 

32. The prejudice was all the more acute given that the application to re-open was in the course of being made. The application cannot be characterised as pointless. The evidence proposed to be adduced would have been both admissible and relevant. Given the admissions he had made, it would have gone to what was, on his case, the appellant’s only available line of defence. It is true that the proposed evidence would be inconsistent with evidence the appellant had previously given as to the true identity of Maurice. However, it cannot be said that the jury would necessarily have rejected it on that account.

33. Quite separately, the paltry address made by the appellant on his own behalf serves to illustrate the prejudice to him in having been deprived of the opportunity of legal representation for addressing the jury on all three counts.

34. In my view, the proper course that should have been taken was to grant the appellant an adjournment in order to explore alternative legal representation. The refusal of the adjournment has resulted in prejudice to the appellant’s defence at trial amounting to a miscarriage of justice.

35. For these reasons, I consider that this ground of appeal must succeed.

36. Although it is unnecessary to determine any of the other grounds of appeal, there are aspects to some of them that warrant brief discussion.

Other grounds of appeal – trial

37. Continuity evidence:  Grounds 1 and 2(ii) relate to continuity evidence concerning drug testing of the contents of the package.  The aspect of the appellant’s factual summary which the respondent did not accept is an assertion that Farrugia did not see ACS seals on it.  In so far as that assertion would imply that there was evidence that she did not see such stickers, it is incorrect.  The true position is that she gave no evidence, either in-chief or in cross-examination, about ACS seals.  Thus there was, at most, an absence of evidence that when she unwrapped the package she observed ACS seals on it.

38. The appellant characterised the respondent’s case on continuity as a circumstantial one. Upon that footing, it was submitted, that the absence of evidence about the ACS seals left open a rational hypothesis consistent with innocence that the package had been disturbed or interfered with by some third party between its handling by Button and Farrugia. It was further submitted that directions appropriate to circumstantial evidence ought to have been given and that the fact that they were not given rendered the jury verdicts unsafe and unsatisfactory.

39. The hypothesis proposed by the appellant is unrealistic and improbable. It would require for its validity an acceptance of the extremely unlikely circumstance that some third party had removed innocuous material from the package and replaced it with amphetamines, all with the intention of setting up someone else quite unknown to them. However, the basic flaw in these submissions lies in a mischaracterisation of the respondent’s case as a circumstantial one. Detailed direct evidence of all the steps in handling the package was given. The jury was not required to draw an inference of continuity from circumstances. No directions as to circumstantial evidence were required to be given. This ground of appeal could not succeed.

40. Unlawful importation: Ground 3, and Ground 2(ii)(d) which is substantially the same as it, relate only to the unlawful importation element of Count 2.  The appellant submits that there was no, or insufficient, evidence upon which the jury could have been satisfied that the quantity of amphetamine the subject of that count was unlawfully imported.

41. There was no evidence of an admission by the appellant that the quantity in question had been imported. The appellant submitted that the evidence that the quantity of amphetamine the subject of Count 1 had been imported, was insufficient for the jury to make a finding as to the provenance of the quantity of amphetamine the subject of Count 2.

42. The respondent’s submission in answer is based upon other evidence which, the respondent contended, would allow the inference to be drawn. In the interview with Grant, the appellant had described the quantity of amphetamine located at his residence as being the remnant of a one kilogram quantity from another package collected by him about a week earlier.^[8]  The appellant gave evidence that there had been one prior package collection by him from his sister’s house at Chancellor Park.^[9]  Additionally, there was the evidence to which reference has been made in these reasons concerning Maurice and his concern that the appellant was “not going to stay on board”.  That, the respondent submits, must have been understood by the jury as referring to a concern on the part of those involved in importing the drugs that the appellant might not continue in the role of a collector of packages. 

43. I accept that there was evidence of a scheme for repeat importations of drugs from Amsterdam by mailed package, of which the transaction represented by Count 1, was an instance.  That evidence coupled with the evidence that the quantity of amphetamine the subject of Count 2 was the remnant of a package which the appellant had collected, was sufficient, in my view, to satisfy the jury that that package had been imported in a fashion similar to the one in which the Count 1 package was imported.  This ground of appeal also could not succeed.

Pre-trial grounds of appeal

44. At the hearing of the appeal, the appellant pursued two grounds of appeal with respect to the pre-trial rulings. One of them related to the ruling that a recording of the conversation that had taken place between the appellant and Grant during the interview at the former’s residence was admissible. The other ground concerned a ruling that seizure of evidence in execution of the search warrants was duly authorised. 

45. Recorded interview admissions:  Grounds 2(i)(a), (b) and (c) are interrelated.  During the recorded interview, the appellant made a number of significant and incriminating admissions of matters of fact relevant to each of the three counts.  The appellant had an obvious interest in having these admissions excluded at trial.

46. The appellant’s challenge to the ruling in favour of their admissibility was, to some extent, blunted in that, in written submissions, reliance was placed upon certain provisions of the Evidence Act 1995 (Cth).  At the hearing, the appellant conceded that those provisions had no application and reliance upon them was abandoned.

47. The other basis of the challenge to this ruling was that there had been non-compliance with s 23F(1) and s 23G(1) of the Crimes Act 1914 (Cth).  Those provisions apply when a person is under arrest or is a protected suspect.  Before starting to question such a person, an investigating official must caution the person and inform them of their right to communicate with a friend, relative and legal practitioner.

48. A s 23F caution and the s 23G information were given to the appellant by Grant.  They were not given to him at the commencement of the recorded interview.  They were given at question 161 of an interview in which some 443 questions were asked by Grant, well after the interview had commenced.  That fact alone does not establish non-compliance with either provision, for each of them is applicable only when the person being questioned is under arrest or is a protected suspect.  The appellant was not under arrest at any time before or during the interview.  Hence, there would have been non-compliance with the provisions only if questioning continued after he had become a protected suspect and without the caution or information being given.

49. The term “protected suspect” is defined in s 23B(2) of the Crimes Act.  A person is a protected suspect only if a number of circumstances which are listed in the definition, exist.  It is unnecessary to refer to those circumstances specifically and sufficient to note that the evidence before the learned Judge did not prove that circumstances existed whereby the appellant had become a protected suspect before the caution and information were given to him.  This was so notwithstanding cross-examination of Grant on behalf of the appellant at the pre-trial hearing.^[10]

50. Given that non-compliance with either provision was not established, the appellant’s challenge to the admissibility of the recorded interview could not succeed. Moreover, the admissions relied on by the respondent for each count were made, in any event, after the caution and information had been given to the appellant. They were not tainted by a failure to give the caution and the information beforehand.

51. Search warrants:  Ground 2(i)(e) contends that the exercise of search powers at each of the two addresses was not duly authorised.  At the hearing of the appeal, counsel for the appellant clarified that the basis for the contention was an absence of proof that the issuing officer, a magistrate, had complied with provisions in ss 3R(4) and (8) of the Crimes Act.

52. Section 3R authorises an issuing officer to act in specified circumstances when a constable applies to the officer for a search warrant by telephone, telex, facsimile or other electronic means. If on the information supplied, the issuing officer is satisfied that one of the specified circumstances exists, then the officer may complete and sign the same form of warrant that would be issued under s 3E:  s 3R(4).  The issuing officer must then inform the applicant by similar means of the terms of the warrant and when it was signed.  Section 3R(8) requires the issuing officer to attach the form of warrant so completed and signed to material which the applicant must afterwards give or transmit to the officer in accordance with s 3R(7).  That material includes a form of warrant that the applicant him or herself must complete substantially corresponding to the terms as informed by the issuing officer. 

53. There was no evidence at the pre-trial hearing of a form of warrant which had been completed and signed by the magistrate in conformity with s 3R(4) for either address.  No such form of warrant was attached to the material as required by s 3R(8).  Also, there was no direct evidence at that hearing that otherwise proved that the magistrate had completed and signed any such forms of warrant.  In those circumstances, s 3R(9) would require the Court to assume that the exercise of the search power at each address was not duly authorised.

54. It need be said at once that counsel for the appellant all but conceded that absence of due authorisation for each search on that account, would not have had the consequence that evidence seized during the search would have been inadmissible at the trial. Counsel accepted that the cogency of the evidence seized – including the controlled delivery package in the case of Count 1, the quantity of amphetamine in the case of Count 2 and the lysergide tablets in the case of Count 3, and the facts that absence of due authorisation was attributable solely to the conduct of the magistrate and was not caused by any improper conduct on the part of the constable who applied for the warrants, would weigh the balancing exercise required by Bunning v Cross^[11] strongly in favour of reception of the evidence seized during the searches.  It follows that, as a vehicle for rejection of that evidence from the trial, this ground, too, could not succeed.

55. There are several aspects to the pre-trial ruling on this topic that call for comment. In the reasons for the ruling, the learned Judge adopted an interpretation of s 3R(4) that would confer on the issuing officer when authorising a search, a choice whether or not to complete and sign a form of warrant.  This interpretation attributes to the word “may” in the section a discretionary connotation.^[12]  I am unable to agree with that interpretation.  In my view, subsequent provisions in s 3R(5) which require the issuing officer to inform the applicant of the terms of the warrant and the day on which and the time at which it was signed and in s 3R(8) itself clearly indicate that “may” in s 3R(4) is used in a permissive sense to confer authority on the issuing officer to complete and sign a form of warrant.  If the issuing officer is minded to accede to an application made under s 3R(1), the officer is authorised to do so by completing and signing the form of warrant.  This the issuing officer must do in order to accede to the application.  No other mode of acceding to the application is authorised by the section.

56. The learned Judge held that in light of the interpretation of s 3R(4) that she had adopted, s 3R(9) was not engaged by the absence from evidence of forms of warrant completed and signed by the magistrate,^[13] but then expressed the view that had the section been so engaged, there was sufficient in the evidence of the constable who had applied for the warrant by telephone and in the signature by the magistrate of the form of warrant that the constable had completed and subsequently transmitted to him.  It must be said that those pieces of evidence fall well short of proof that the magistrate himself completed and signed forms of warrant.  Obviously, they are not direct evidence of that fact; nor are the circumstances of which they are evidence, sufficient to ground an inference of that fact having occurred.

57. This case presents an opportunity to observe that the requirements of s 3R(4) are an important safeguard in ensuring that when a constable successfully applies for a warrant electronically, the form of warrant the constable completes and executes substantially corresponds to the form of warrant that the issuing officer has, in fact, authorised.  The requirements of the section are mandatory.  As this case also illustrates, in a given case, the presumptive consequence that s 3R(9) has for an absence from evidence of a form of warrant completed and signed by the issuing officer, may not be capable of being displaced by evidence to the contrary.

58. In light of the clear language of s 3R(4), the purpose of that provision and the presumptive consequence in s 3R(9), it is incumbent upon issuing officers when authorising search warrants under s 3R, to be mindful of, and if necessary be reminded of, the requirement that they complete and sign a form of warrant in the same form that would be issued under s 3E.

Disposition

59. There is one ground upon which this appeal must succeed. It is applicable to all counts. All convictions and sentences should be set aside and a new trial on all counts directed.

Sentences

60. In the circumstances, it is unnecessary to consider separately the application for leave to appeal against sentence.

Orders

61. I would propose the following orders:

1. The appeal is allowed.

2. Convictions on Counts 1, 2 and 3 are set aside.

3. Order a new trial on Counts 1, 2 and 3.

4. The application for leave to appeal against sentence is dismissed.