R v Sherratt[2013] QCA 78

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P: The appellant, Mark Sherratt, is self-represented in this appeal.  He was convicted on 4 October 2012 after a three day trial of assault occasioning bodily harm in company on 30 March 2011.  He was sentenced to 12 months imprisonment suspended after six months with an operational period of two years.  He has appealed against his conviction and applied for leave to appeal against his sentence.  He has also applied to adduce further evidence.

[2] The sole ground of appeal against conviction in his notice of appeal is that the guilty verdict is unreasonable or cannot be supported having regard to the evidence.  In his written and oral submissions he raised the following additional grounds.  The trial judge erred in allowing the prosecution to re-open its case to lead evidence of his alleged apology outside the court as this was not capable of constituting an admission.  The trial judge erred in not reading to the jury all the evidence of the witnesses, Susan Taylor and Eric Carrier.  His barrister failed to represent him to a professional standard by acting contrary to his instructions that he wished to give evidence; in failing to raise inconsistencies in the evidence of prosecution witnesses; and in failing to object to the primary judge not reading the transcript of all the evidence of Ms Taylor and Mr Carrier.  When the issue was raised as to whether all 12 jurors had to agree on the form of assistance in cases concerning party liability, the judge erred in not adjourning so that counsel could research the question; in himself not researching the question; and in not adequately directing the jury on this issue. 

[3] In his sentence application, he contended that his sentence was manifestly excessive.

[4] In material supplied to the respondent as an outline of argument and lodged in this Court, the appellant enquired if the respondent could:

"come to a deal in relation to [his] appeal before the Supreme Court on the [sixth] day of February 2013.  I would be prepared to discontinue the appeal against conviction if you were so minded to agree to call it time served on the [sixth] of February 2013. … If we could come to a deal to call it time served on this day it would save me a lot of money and save the court['s] valuable time.  If you are so minded to do this, please notify me as soon as possible so I can have the appeal against conviction discontinued.  If not, this is my Outline of argument …"[1]

[5] The respondent understandably ignored the appellant's offer, which in any case it had no power to accept.  The appellant has steadfastly pursued his many contentions, outlined at [2] of these reasons.

The appeal against conviction

The evidence at trial and relevant aspects of the trial

[6] A necessary starting point from which to address these many and varied contentions is to summarise the evidence and other relevant aspects of the trial.

[7] The appellant, through his counsel at trial, admitted that on 30 March 2011 he was the owner of a dark blue Holden Commodore sedan registration number 654FMZ.  He was driving it in the car park of the Brisbane Myer Centre with a passenger, Nicholas Da Costa, and was present when Mr Da Costa assaulted the complainant, Martin Petersen.  As a result of the assault, Mr Petersen suffered bruising to both eyes and forehead, a nasal bridge laceration with minimal swelling and right shoulder pain.  These injuries amounted to bodily harm. 

[8] The closed circuit television footage of an incident which occurred at the exit from the Myer Centre car park to Albert Street was tendered at trial (ex 8).  It showed the appellant's car stopped at the boom gate exit as the ticket machine would not accept his ticket.  He unsuccessfully attempted to activate the gate for about one minute.  An attendant approached and spoke to him.  Shortly afterwards, the gate was raised and he drove through.  During this delay, his passenger, Mr Da Costa, gestured to the complainant in the car behind, apparently in apology.  Shortly before the boom gate opened, Mr Da Costa left the car and faced the complainant's car.  His demeanour had changed. 

[9] Martin Petersen gave evidence that Mr Da Costa was initially apologetic but became more aggravated when another car in the queue loudly sounded its horn.  Mr Petersen did not sound his horn.  The boom gate remained open until Mr Da Costa returned to the appellant's car and drove through the exit.  Mr Petersen's car was next in line and went through the boom gate without difficulty, following the appellant's car toward the Albert Street exit.  The appellant's car stopped before the exit and Mr Da Costa alighted, gesturing for Mr Petersen to get out of his car.  Mr Petersen remained in his car and unsuccessfully attempted to photograph Mr Da Costa with his mobile phone's camera.  The appellant drove off but stopped closer to the street exit.  Mr Petersen photographed the appellant as he left his car and approached him with Mr Da Costa following.  The appellant reached through Mr Petersen's car window and demanded his phone.  His upper body was inside the car whilst he grappled with Mr Petersen and attempted to take the phone.  Mr Da Costa then punched Mr Petersen and the appellant withdrew from the car.  Mr Da Costa repeatedly punched Mr Petersen to the head and face.  The appellant remained at Mr Petersen's car and attempted to open the door.

[10] Mr Petersen's weather shield was torn off in the fracas.  Either Mr Da Costa or the appellant threw it into Mr Petersen's car before they both returned to the appellant's car.  Mr Petersen took photographs of the appellant at his car door and of Mr Da Costa exposing his penis and gesturing obscenely in front of Mr Petersen's car.

[11] In cross-examination, Mr Petersen maintained that the appellant grappled with him in an attempt to take his mobile phone.  He could not say that the appellant punched him. 

[12] Eric Carrier gave evidence that he was held up in the queue of cars at the boom gate.  He heard a horn sounding somewhere closer to his car than at the front of the queue.  After successfully passing through the boom gate, he drove his car in the line behind Mr Petersen's, towards the Albert Street exit.  Mr Carrier stopped in the queue of cars near the exit.  Shortly after stopping, Mr Carrier saw the appellant and Mr Da Costa get out of their vehicle and walk aggressively towards Mr Petersen's car.  They both reached into the car in an apparent attempt to retrieve something.  The appellant was probably "leading the recovery effort"[2] and attempted to open Mr Petersen's car door.  Mr Carrier alighted and attempted to defuse the unfolding situation.  He was concerned for Mr Petersen's safety.  He saw Mr Da Costa punch Mr Petersen about six or eight times.  The appellant told Mr Carrier, "This is not your problem."[3]  He physically blocked Mr Carrier from assisting Mr Petersen whilst Mr Da Costa spat through the car window and punched Mr Petersen another three or four times.  Mr Carrier managed to push past the appellant and intervene.  The appellant told him to return to his car as it was not his problem; he knew his registration number and he had "better do the right thing because [the appellant] could find [him]".[4]  Mr Da Costa was enraged and the appellant was encouraging him to leave.  Mr Petersen retrieved his camera from inside his car and photographed the appellant and Mr Da Costa who "smiled and shot the finger and exposed himself for the photograph".[5]  The appellant accepted Mr Carrier's forceful advice and encouraged Mr Da Costa to leave.

[13] Ms Susan Taylor was in her car about two cars in line behind Mr Petersen's.  She did not see the appellant or Mr Da Costa approach Mr Petersen but she heard them shouting aggressively at him.  Mr Carrier approached Mr Petersen's car and was blocked by one man as the other punched Mr Petersen.

[14] The prosecution case closed late in the afternoon on the first day of trial.  Defence counsel told the judge he needed to raise a matter in the absence of the jury.  After the jury left the court room, defence counsel stated: "I've received certain instructions as to how this case should be run from my point of view."[6]  He explained he was instructed to call Mr Da Costa as a witness, but Mr Da Costa was presently in detention.  Arrangements had been made for him to give video evidence the following day.  At this stage his client had instructed that he would not give evidence but counsel wished to discuss this with him again.  The judge stated that he would prefer to call on the appellant that afternoon and asked counsel to promptly resolve the matter.  The court adjourned at 4.17 pm to allow counsel to speak to the appellant.  The court resumed at 4.21 pm when counsel stated, still in the absence of the jury: "Your Honour, my client won't give evidence but he will call evidence."[7] 

[15] The jury returned at 4.22 pm when the following exchange occurred:

"BAILIFF: Jury all present and correct, your Honour.

HIS HONOUR: Thank you. Would you call on the [appellant], please.

ASSOCIATE: Yes, your Honour.

HIS HONOUR [to the appellant]: Would you stand up, please.

ASSOCIATE: The prosecution having closed its case against you, I must ask if you intend to adduce evidence in your defence. This means you may give evidence yourself, call witnesses, or produce evidence. You may do all or any of these things or none of them.

HIS HONOUR: You needn't answer; your counsel can answer on your behalf. Yes, [defence counsel]?

[DEFENCE COUNSEL]:  Your Honour, my client will not give evidence but he will call evidence."^[8]

[16] The court adjourned, resuming the following day at 9.51 am in the absence of the jury.  Defence counsel stated that a video link could be arranged at 10.00 am but Mr Da Costa was refusing to participate because his family was visiting.  He would be available to give evidence by video link at 2.30 pm. 

[17] The prosecutor stated that, after the court adjourned the previous afternoon, the appellant approached Mr Petersen, Ms Taylor and the arresting police officer and apologised for his actions.  The prosecutor had taken two statements but wished to take a further statement from a witness and, depending on its effect, may apply to re-open the prosecution case.  After obtaining the third statement, the prosecutor applied to re-open his case.  He submitted that the appellant's apology amounted to an unequivocal admission and was probative.  There was no prejudice to the appellant from the proposed course as he had not embarked on his defence. 

[18] Defence counsel contended that it was exceptional for the prosecution to re-open its case.  The appellant had declared in front of the jury that he did not intend to give evidence.  If the prosecution was permitted to re-open, it may be necessary to apply for a mistrial.  The precise nature of the appellant's conversation with the witnesses was disputed.  The defence cross-examination of other prosecution witnesses may have been different had this evidence been led originally.  Counsel did not provide particulars of this assertion.

[19] The judge held that the evidence of the witnesses proposed to be led was capable of being construed as an admission and as consistent with guilt and inconsistent with his non-participation in the offence.  Whilst the appellant had been called on and had indicated he was calling and not giving evidence, his case had not yet been opened.  As he was calling evidence, the prosecution evidence would not be the last evidence the jury would hear.  The evidence was potentially important; of short compass; could not have been called in the prosecution case as it did not then exist; and the re-opening would not significantly disadvantage the appellant.  In this combination of rare and unusual circumstances, the judge allowed the prosecution to re-open its case.

[20] Mr Petersen gave evidence that the previous afternoon he was sitting outside the court room with police officer Collett and Ms Taylor.  The appellant approached him and said, "I would just like to apologise.  It was out of character."  He seemed sincere and had tears in his eyes.  He was with a young lady.  Mr Petersen responded, "Thank you."[9]  In cross-examination, he denied that the apology related to the conduct of Mr Da Costa.

[21] Ms Taylor gave evidence that the appellant looked at Mr Petersen and said, "I'm sorry, what I did was totally out of character."  Mr Petersen thanked him.  The appellant's girlfriend was with him and said something along the same lines.

[22] Police officer Collett gave evidence that the appellant approached Ms Taylor and Mr Petersen and said words to the effect of, "I'm sorry about what happened.  It's out of character, I'm trying to turn my life around."  Mr Petersen paused for a very short time and said, "Thank you."  In cross-examination, he denied the appellant was apologising for Mr Da Costa or commenting that the episode was out of character for Mr Da Costa.

[23] The prosecution again closed its case.  The judge called on the appellant in this way:

"HIS HONOUR:  Would you call on [the appellant].

ASSOCIATE: The prosecution having closed its case against you, I must ask if you intend to adduce evidence in your defence. This means you may give evidence yourself, call witnesses or produce evidence. You may do all or any of these things or none of them?

HIS HONOUR: You can have a seat if you wish and your counsel can tell me what you propose to do.

[DEFENCE COUNSEL]: Your Honour, my client will not give evidence but he will call evidence from Nicholas Da Costa."[10]

[24] Mr Da Costa gave the following evidence by video link.  He was serving a term of imprisonment for offences arising out of the present incident and for other offences of dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by liquor, and unlicensed driving.  He and the appellant were friends at the time of this incident.  Mr Petersen was sounding his horn and abusing Mr Da Costa when he and the appellant were delayed at the boom gate and later when they were forced to stop at the Albert Street exit because of the queue of cars in front of them.  He said: "we confronted the driver of the car behind",[11] that is, Mr Petersen.  Mr Da Costa described himself as the sole aggressor and the only person to assault Mr Petersen.  The appellant's involvement was limited to trying to persuade him to desist.  In cross-examination, he agreed that he did not know what the appellant was doing whilst he was punching Mr Petersen. 

[25] The appellant, consistent with his counsel's earlier statement to the court on his behalf, did not give evidence or call further evidence.

[26] After counsel addressed the jury, at 4.48 pm on the second day of the trial, the judge allowed the jury to leave for the day.  His Honour told the prosecutor that his case seemed to fall within s 7 Criminal Code 1899 (Qld) whereas the prosecutor had addressed on both s 7 and s 8 Criminal Code.  The evidence was that the appellant assisted Mr Da Costa, first, by grappling with Mr Petersen whilst Mr Da Costa assaulted him and, second, by standing ready to assist, or third, by restraining Mr Carrier from intervening to stop Mr Da Costa's assault. 

[27] Defence counsel supported the judge's view, emphasising that Mr Da Costa gave evidence that there was no pre-planning and no discussion of any sort with the appellant about an assault on Mr Petersen.  He contended there was no evidence of any common purpose or pre-planning. 

[28] The judge stated that he was inclined to instruct the jury that this was a s 7 case.  The prosecutor had no objection to this approach which did not damage his case.[12]

Is the guilty verdict unreasonable?

[29] The appellant contends that the guilty verdict was unreasonable and not supported by the evidence.  Consideration of this ground of appeal requires the Court to determine whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. 

[30] The appellant submitted that there were many inconsistencies between the evidence of Mr Petersen, Mr Carrier and Ms Taylor.  These included their evidence as to the colour and make of various cars and whether there were cars in front of the appellant's car.  The prosecution witnesses' evidence was implausible: he could not have grappled with Mr Petersen while fending off Mr Carrier.  The witnesses were also inconsistent as to their accounts of the apology.  The jury could not be satisfied of his guilt beyond reasonable doubt.

[31] The review I have undertaken of the evidence shows that, contrary to the appellant's contention, the prosecution case against him was strong.  Both Mr Petersen and Mr Carrier gave direct evidence consistent with the appellant assisting Mr Da Costa in his assault on Mr Petersen, either by grappling with Mr Petersen whilst Mr Da Costa assaulted him, or by holding back Mr Carrier to prevent him from assisting Mr Petersen.  Mr Carrier's evidence supported Mr Petersen's evidence that the appellant grappled him.  Ms Taylor's evidence supported Mr Carrier's evidence that the appellant blocked him whilst Mr Da Costa continued to punch Mr Petersen.  It is true that Mr Da Costa gave evidence that the appellant was not involved, but the jury were entitled to reject his evidence and to prefer the evidence of Mr Petersen and the independent evidence of Mr Carrier and Ms Taylor.  The inconsistencies relied on by the appellant did not relate to the critical events.  In any case, witnesses can be expected to recall different things when they observe a short action-packed event from different angles and perspective.  Clearly, the appellant's grappling with Mr Petersen preceded his holding back of Mr Carrier.  It was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on either of the bases relied on by the prosecution.  This ground of appeal is not made out.

Did the judge err in allowing the prosecution to re-open its case?

[32] Ordinarily, the prosecution must offer all its evidence before those charged with criminal offences are called upon to say whether or not they will give or call evidence.  There are, however, exceptions: see Shaw v The Queen[13] and R v Soma.[14]

[33] Here, the evidence which the judge allowed the prosecution to call after formally closing its case did not exist at the time the prosecution case was presented. Unlike in Soma, the evidence from Mr Petersen, Ms Taylor and police officer Collett concerning the appellant's apology, made after the close of the prosecution case, did not exist at the time the principal prosecution case was led.  As the judge found, it was capable of constituting an admission that the appellant was involved in and sorry for the episode involving Mr Petersen on 30 March 2011.  It was, therefore, relevant and admissible.  It is true that the appellant had previously indicated that he was calling but not giving evidence.  But the judge called on him again after the prosecution closed its case for the second time.  Had the further evidence of Mr Petersen, Ms Taylor and police officer Collett caused him to change his mind as to the conduct of his defence, he could have given and called evidence in addition to that of Mr Da Costa.  The re-opening did not cause him significant prejudice.

[34] This case fell within the exceptions to the general rule discussed in Shaw and Soma.  The trial judge's decision to allow the prosecution to re-open its case in these circumstances was well within a sound exercise of discretion.  The appellant has not demonstrated it has caused any miscarriage of justice.  This ground of appeal is not made out.

Relevant aspects of the judge's directions to the jury

[35] Many of the appellant's contentions require a consideration of the judge's directions to the jury and related matters.  The judge uncontentiously directed the jury as to preliminary matters and explained the elements of the offence of assault occasioning bodily harm of which they must be satisfied beyond reasonable doubt before convicting.   His Honour told them to disregard the prosecutor's submissions as to whether the appellant and Mr Da Costa had some sort of plan to take Mr Petersen's phone or to threaten him, and whether the assault was a consequence of that plan.  Such speculation and guesswork must be avoided. 

[36] His Honour then read s 7 Criminal Code to the jury and continued:

"So, the effect of that section is to extend the criminal responsibility for an offence to persons who are parties. It makes the following persons guilty of the offence: the person who actually does the act, any person who does something to assist and any person who aids any other to commit the offence. So, it is not only the person who actually does the criminal act who can be found guilty of it. Those who aid, assist or help or encourage are also guilty of the same offence.

This is the basis upon which the accused is charged with the assault occasioning bodily harm in company in the case before you. The prosecution says that although he was not the person who actually committed the assault which occasioned the bodily harm, he is guilty because he aided or assisted Da Costa to do it.

Proof of aiding involves proof of acts and omissions intentionally directed towards the commission of the principal offence by the perpetrator and proof that the [appellant] was aware at least of the essential matters which constituted the crime in contemplation.

To aid simply means to assist or help.

The prosecution must satisfy you that the [appellant] knew the type of offence that was being committed. It is not necessary that he know the detail of each blow, but that he know generally the sort of offence that's being committed and the prosecution must prove to your satisfaction that Da Costa committed the offence, the [appellant] did acts or omissions for the purpose of enabling or helping him, that the [appellant] did so with the intention to assist Da Costa to commit the offence and that the [appellant] had an actual knowledge or expectation of the essentials of what was going to happen, is the fourth thing that you need to be satisfied about.

There is another way that one can aid or encourage the commission of an offence. Sometimes the aiding takes the form of actual physical assistance in the commission of the offence, but it is not necessary for the Crown to show actual physical assistance. Wilful encouragement can be enough.

Certainly, if the [appellant] intended that Da Costa should have an expectation of aid from him in the commission of the assault, then the [appellant] could be found guilty.

Where the prosecution alleges that sort of aiding by encouragement, the prosecution must prove that the [appellant], here charged as the aider, did actually encourage the perpetrator in the commission of the offence, such as by his presence there and that he intended that his presence there be encouragement to Da Costa in the commission of the offence. Voluntarily and deliberating being present during the commission of a crime without opposition or real dissent can be evidence of wilful encouragement or aiding in its commission.

What do you know here? Well, you have the sheet of admissions, don't you, and you conclude that Da Costa committed the offence. The question for you is whether you can be satisfied beyond reasonable doubt that the [appellant] assisted or aided in the commission of the offence.

The Crown says that the [appellant] led the way to the victim's car, and you'll remember [the complainant] says the photograph, Exhibit 6, was taken of the first man that approached his car before the dispute about the telephone commenced and the Crown says that that approach to the car and Mr De Costa's arrival short afterwards is material that you can act on in deciding whether or not the [appellant] was acting to assist Da Costa when Da Costa arrived and commenced the assault. You will remember that [the complainant] says they were still struggling at the time that Da Costa arrived and commenced to hit him.

Further, the Crown says that the [appellant], when he wasn't actually involved physically with [the complainant], was standing by ready to assist if he was required, and thirdly, the Crown says that you would accept that the [appellant] blocked the path of Mr Carrier, who sought to intervene to bring the matter to an end, and in that way aided Da Costa in the commission of the offence.

Now, it's for you to consider all of that evidence and see whether you accept it or not. You will remember that Mr Da Costa himself, while telling you that he committed the offence, didn't seem to remember much about anyone else being involved or being nearby. So, the evidence that you have about the involvement of others comes from [the complainant] and Miss Taylor and Mr Carrier.

You will need to consider those propositions the Crown rely on carefully. If you're satisfied that one of them is correct and so satisfied beyond reasonable doubt, then you could convict the [appellant], but you will remember that throughout the case, the onus of proof remains upon the prosecution. If you cannot conclude beyond reasonable doubt that one of those propositions advanced by the Crown is correct, then the [appellant] is entitled to be acquitted"  (errors in the original transcript).^[15]

[37] The judge also gave directions to the jury about the evidence of Mr Petersen, Ms Taylor and police officer Collett in the re-opened prosecution case.  In analysing that evidence, the jury should consider what was actually said and what it meant.  If, as defence counsel urged, it may have been nothing more than an outpouring of emotion at the end of a court day, an apology on behalf of Mr Da Costa, or an apology motivated by the fact that the appellant had Mr Da Costa in his car, then the jury would probably put it to one side and consider the other evidence.  If the jury found that it could only be an acknowledgment of the appellant's guilt and wrong-doing, then the jury might find it added significantly to the case against him.  This was a matter for them to determine after considering counsel's submissions.

[38] His Honour correctly explained the standard and burden of proof.  The judge reminded the jury that the appellant was not bound to give evidence.  The fact that he had not given evidence did not add to the case against him.  In summarising the defence case, his Honour stated that counsel had submitted that the jury could not be satisfied that the appellant was not a rescuer and that he was unfortunate in having his conduct misinterpreted by others.  His recent apology was nothing more than an emotional outpouring at the end of a tense day in court. 

[39] On the other hand, the prosecution case was that it was implausible that the independent witnesses, Mr Carrier and Ms Taylor, were both mistaken.  The appellant was clearly assisting Mr Da Costa.  His later apology was unmistakeable evidence of guilt and inconsistent with the assertion that he was a good Samaritan.

[40] The judge suggested the jury begin their deliberations with the evidence of Mr Petersen, Mr Carrier, Ms Taylor and Mr Da Costa.  If they were not satisfied of the accuracy of the prosecution witnesses beyond reasonable doubt, they should return a verdict of not guilty.  If they were satisfied that the prosecution witnesses were truthful and correct, a guilty verdict should be returned.  The jury should ask the bailiff if they needed to be reminded of any evidence.

[41] The jury retired to consider their verdict at 10.30 am on the third day of the trial.  At 12.11 pm the court reconvened to deal with two jury requests.  The first was to hear Mr Carrier's and Ms Taylor's evidence as to events "occurring after passing through the boom gate."[16]  The judge stated that he understood this to mean they wanted to be reminded of evidence about those issues.  He invited counsel to identify relevant aspects of the cross-examination because there was lot of it.  Defence counsel asked the judge to read all the relevant evidence to the jury.  The judge stated that he would read the evidence in an abbreviated, sequential form and, if he missed anything that counsel considered significant, they could advise him.  He then read the jury the portions of that evidence which he considered significant.  During this exercise, defence counsel courteously interrupted the judge and requested the judge read some evidence he had overlooked.  His Honour immediately complied.[17]

[42] After the end of the redirections, his Honour told the jury that, if they required anything further, they should send him another note.

[43] The jury's second request was:

"Do all elements of assistance have to occur to convict? I  take it specifically preknowledge and assault will occur, or an expectation that it will occur, or is only one aspect sufficient to justify guilt?"[18]

[44] The judge discussed this with counsel in the absence of the jury.  Defence counsel submitted that all 12 jurors would have to agree on the same matter amounting to assistance before they could convict.  In response to a question from the judge, he stated he had no authority for this contention.  The prosecutor stated that he was uncertain as to the law. 

[45] The jury returned and the judge gave the following redirection:

"Now, the other question you asked concerns the way in which the Crown case is put, as I understand it, and you asked whether all of the elements of assistance to assault have to occur to justify a finding of guilt. I hope that I'd made it clear to you that the Crown put this case in three alternative propositions, really. The first is that they say the [appellant] led the way to Mr Petersen's car and that the assault that followed was something in which both were involved and they were assisting one another.

Secondly, the Crown says that when he wasn't involved in the actual exchanged with Mr Petersen, he was standing ready to assist.

Thirdly, the Crown says that he aided by blocking Mr Carrier's attempt to get to the car to stop the assault.

Now, those three propositions are put to you in the alternative.  If you were satisfied beyond reasonable doubt that any one of those things occurred, then you could find that that amounted to an aiding by the [appellant] in the assault.  It's not necessary that you find all three of them, but you might find any one of them as a sufficient basis for a verdict of guilty.

Now, if you're not satisfied about them, of course, you know what the proper verdict is, but it's not necessary that the Crown succeed in respect of each of the three ways in which the case was put to you. One would be sufficient, depending on the view you take of the evidence. …" (errors in the original transcript).^[19]

[46] Neither counsel asked for redirections on either issue.  The jury retired again at 1.05 pm.  They did not request any further redirections and returned with their guilty verdict at 2.15 pm.

Did the judge err in not reading to the jury all the evidence of the witnesses?

[47] The appellant contends the judge erred in his redirection to the jury in not reading all the evidence of Mr Carrier and Ms Taylor relating to events after the appellant's car passed through the boom gate (see [41] and [42] of these reasons). 

[48] In answering jury requests to hear evidence, it will often be prudent to read the requested evidence in its entirety.  But the judge was concerned about the large quantity of evidence and considered that much of it may not assist the jury.  He sequentially read what he considered were the relevant portions, after having first asked counsel to tell him if he missed anything of relevance. 

[49] At one point, defence counsel asked his Honour to go back and read to the jury a portion of evidence which counsel considered significant.  His Honour immediately complied.  At the end of the redirection, his Honour reminded the jury that if they required anything further they should send another note.  They did not.  This suggests that the judge read the evidence they wished to hear.  Defence counsel did not ask for any redirection.  This indicates that he was content that the jury had been informed of all relevant evidence. 

[50] Nowhere in the appellant's lengthy submissions has he identified that the failure to read any piece of evidence to the jury has resulted in a miscarriage of justice.  This contention does not expose any error of law or any resulting miscarriage of justice.  It follows that it is not made out.

Did the judge err in not adjourning to research whether the jury had to be unanimous as to the form of the appellant's assistance?

[51] The appellant contends that the trial judge should have adjourned to permit counsel to research the issue as to whether all 12 jurors had to agree on the particular assistance the appellant gave to Mr Da Costa in his assault on Mr Petersen.  As the alternative bases of the prosecution case were so very different, all 12 jurors needed to agree on the same basis in order to convict him.

[52] This contention turns on the exchange between counsel and the judge (summarised at [26] to [28] of these reasons) prior to the judge's subsequent directions to the jury (set out at [36] to [40] of these reasons) and the exchange preceding the subsequent redirections (discussed at [43] and [44] of these reasons). 

[53] The English Court of Appeal considered the question of jury unanimity in situations of this kind in R v Giannetto,[20] stating:

"There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet. Of course, if (as will very often be so) the Crown nail their colours to a particular mast, their case will, generally, have to be established in the terms in which it is put. Our judgment should give no encouragement to prosecutors casting around for alternative possibilities where the essential evidence does not show a clear case against the defendant. …"

[54] This Court also discussed a comparable issue in R v Leivers and Ballinger[21] where Fitzgerald P and Moynihan J cited the observations from Giannetto with approval.[22]  Leivers and Ballinger were charged with murder and prosecuted on the basis that neither struck the fatal blow but each was guilty of murder through either s 7(1)(c) or s 8 Criminal Code.  They appealed, contending that the trial judge misdirected the jury by telling them they could reach the same conclusion by different routes if in the end each juror was satisfied beyond reasonable doubt of each appellant's guilt.  It followed from this direction that some jurors may have found an appellant guilty by way of s 7(1)(c) whilst others may have done so by way of s 8.  Fitzgerald P and Moynihan J, and Pincus JA quoted with approval the following statement from R v Thatcher:[23]

"… if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, 'it is difficult to imagine a situation more likely to bring the administration of justice into disrepute – and deservedly so'."[24]

All three judges found that in the circumstances pertaining there, where the alternative bases of criminal liability did not involve materially difficult issues or consequences, it was not necessary for all jury members to be unanimous as to whether they reached their verdict by way of s 7 or by way of s 8. 

[55] That is not to say that there will not be instances where a jury must be unanimous about the way an offence was committed before finding a defendant guilty.  R v Chignell[25] is such a case.  There, the prosecution case was that Chignall killed the deceased either at Taupo or, some five or six hours earlier, at Auckland.  The New Zealand Court of Appeal found that if some jurors were of the view Chignell murdered the deceased in Taupo and others at Auckland much earlier, there could be no guilty verdict. 

[56] Chignall may be contrasted with R v Ryder.[26]  The prosecution case was that Ryder was involved in a series of assaults on the deceased which either alone or in combination, caused death, with the prosecution being unable to establish beyond reasonable doubt which assault or assaults caused the death.  The New Zealand Court of Appeal found that, in this case, the jury need not be unanimous as to which assaults or assaults caused the death.

[57] I do not consider that in the present case it was a requirement of law that the jury must all agree beyond reasonable doubt on the factual basis of the appellant's aiding of Mr Da Costa before convicting him.  The judge's directions to the jury to which I have referred made very clear that the jury could only convict the appellant if satisfied beyond reasonable doubt of the truth and reliability of the prosecution witnesses to the assault.  This was not a case where there was any possibility that the appellant assaulted Mr Petersen at some other place or time.  The appellant well knew the case he had to meet.  His defence was that, in light of Mr Da Costa's evidence, the jury would find that he was not involved in any way in the assault; his involvement was only to stop Mr Da Costa.  The jury would at least have a reasonable doubt as to the reliability of the prosecution witnesses and find him not guilty.  Unsurprisingly, the jury rejected Mr Da Costa's account and accepted beyond reasonable doubt the evidence of the prosecution witnesses.  No miscarriage of justice had arisen from the judge not adjourning the trial so that counsel or the judge himself could research the question.  The judge's directions to the jury on this issue did not amount to an error of law.  The jury did not have to be unanimous as to the basis on which they found the appellant assisted Mr Da Costa.  This contention also fails.

The application to adduce further evidence

[58] Before dealing with the appellant's remaining contentions it is necessary to deal with his application to adduce further evidence in the appeal.  He seeks to adduce this evidence from his girlfriend, Ms Leigh McMahon, and from his sister, Ms Amanda Sherratt, and to give evidence himself.  He contends that this evidence demonstrates that the guilty verdict is a miscarriage of justice.  If his application were successful, the respondent seeks to lead further evidence from the appellant's former solicitor and barrister.  The Court received all this evidence in affidavit form for the limited purpose of determining whether to grant the application.  All witnesses other than the appellant's former solicitor were required for cross-examination.

The appellant's evidence

[59] In a handwritten affidavit, much of which amounts to an outline of argument rather than evidence, the appellant stated that he did not commit the offence.  He thought Mr Petersen was a police officer to whom he wished to explain why he was stopped at the exit.  He had not stopped his car to annoy or confront Mr Petersen but because there was a red traffic light at the exit ramp.  Mr Da Costa then assaulted Mr Petersen, completely independently of the appellant.  He told Mr Da Costa to desist but he would not listen.  Mr Da Costa broke Mr Petersen's weather shield, picked it off the ground and threw it through Mr Petersen's window saying, "Take your rubbish with you."  The appellant then heard a male voice behind him asking what was going on.  The appellant again yelled at Mr Da Costa to return to the car and he eventually complied.  The traffic light turned green and he drove off.  He emphasised that Mr Carrier was mistaken or dishonest.  Mr Carrier wrongly claimed that the appellant blocked him from assisting Mr Petersen and that, after Mr Carrier arrived,  Mr Da Costa inflicted a second series of blows on Mr Petersen.  At all times the appellant was attempting to stop Mr Da Costa from assaulting Mr Petersen; he was not encouraging him.  He should not be held responsible for Mr Da Costa's independent actions.  When he apologised to Mr Petersen at the end of the first day of the trial in the presence of his partner, Ms McMahon, he stated: "I'm sorry for what happened that day.  Nick [Da Costa] was out of character."[27] 

[60] He conferred with his former barrister and former solicitor, together with Ms McMahon and Ms Sherratt in an interview room outside court on the second day of the trial.  The solicitor left with Ms McMahon to take a statement from her about the conduct of the prosecution witnesses the previous morning.  His barrister explained that the prosecution was applying to re-open its case to lead evidence about his apology and advised that it was very probable the jury would find him guilty if he did not give evidence.  The appellant had decided at the beginning of the trial not to give evidence "because it was a pretty scary situation to be in"[28]; he had never been on trial before.  He believed the evidence of the prosecution witnesses was so inconsistent he would not be convicted.  After the judge agreed to allow the prosecution to re-open its case, the court adjourned and the appellant conferred again with his barrister in the presence of his sister.  His barrister again said that, if he did not give evidence, it was very likely the jury would convict.  He told his barrister that he would give evidence.  When the judge later asked him whether he wished to give or call evidence, his barrister responded on his behalf. He said that the appellant would call evidence from Mr Da Costa but (contrary to the appellant's instructions) the appellant would not give evidence.  He had not been on trial before and did not know that he could have told the judge that he wished to give evidence.

[61] On the morning of the first day of the trial, Ms McMahon told him that she had heard Mr Petersen discussing with other witnesses what they were going to say in the trial.  He passed this information on to his barrister but his barrister failed to raise it when cross-examining the witnesses.  His barrister also failed to emphasise to the jury the important inconsistencies in the evidence of the prosecution witnesses.

[62] In cross-examination, he maintained that his final instructions to his barrister were that he would give evidence.  He did not sign any instructions.  His barrister was busy returning to chambers to check up on the law about the prosecution re-opening their case.  After being shown the trial transcript, he agreed there was no adjournment between when the judge ruled that the prosecution could re-open its case and when he was called on for the second time.  When his barrister stated that he would not give evidence, he said nothing to indicate disagreement as he did not think he could. 

[63] He agreed that, in his outline of argument, he offered to do a deal with the respondent.  He agreed that his notice of appeal which he signed contained only one ground of appeal against conviction: that the verdict was unreasonable or cannot be supported having regard to the evidence.  This ground was drafted by an officer from Legal Aid Queensland.  He made no complaint to his former barrister or solicitor after his conviction about the fact that they did not let him give evidence in accordance with his changed instructions.

The evidence of Ms McMahon

[64] Ms McMahon deposed to the following.  The appellant had been her partner for two and a half years.  She was with him at his trial.  On the first day she saw Mr Petersen, the two witnesses and the police officer sitting in a room outside court.  The door was open and she could hear everything they said.  They were chatting about what they would say when they gave evidence and were concocting their stories to sound the same.  After court finished, she again saw Mr Petersen sitting in the same room.  She told the appellant he should apologise for what Nick Da Costa had done.  The appellant walked over, stood in the doorway and said, "Im sorry for what Nic did to you mate it was [inap]propriate."  The complainant smiled and said, "thank you, mate."  She added, "what happened to you was very wrong" (errors in original).[29] 

[65] On the second day of the trial the appellant's barrister discussed with the appellant the effect of the apology. He said the appellant would have to give his version of events to the jury.  She did not understand why this did not then happen.

[66] When cross-examined, she agreed she would like the appellant to be released from custody.  She was not present on the second day of the trial when the appellant and his barrister discussed whether he would give evidence, but when the appellant came out of the conference he told her that he would have to "take the stand".[30]

The evidence of Ms Sherratt

[67] The appellant's sister, Amanda Sherratt, deposed to the following.  She attended court with the appellant and Ms McMahon on the second day of the trial.  She was in an interview room with the appellant and his barrister who said the appellant would have to "take the stand"[31] that day and give evidence in front of the jury.  The appellant was a little nervous but agreed as it would help his case.  She did not understand why he did not give evidence.

[68] In cross-examination, she agreed she and the appellant were very close and she relied on him to help her with her son.  The first time she was asked to recall the conference with the barrister was about four months later on 4 February 2013.  She was not very good at remembering things but she had attempted to do her best.  She thought the conversation between the appellant and his barrister about him giving evidence occurred "first thing" on the second day of the trial, but then was unsure if it was before or after court started.[32]  She was present only for the second day of the trial.  She was unsure if the meeting occurred before or after court started.  She was not very good at recollecting conversations "word for word".  The conference was some time ago and she "had a lot going on since then".  The appellant's barrister said that the appellant "had to take the stand".[33]  The appellant was nervous but wanted to put his side of the story.  She could not remember his barrister asking him to sign anything or explaining what would happen when he gave evidence.  She had not had earlier conversations with the appellant to the effect that he did not want to give evidence.  She thought that he wanted to give evidence.  She desperately wanted her brother to be released from prison.  When the respondent's counsel suggested she was mistaken about what the appellant and his barrister discussed, she conceded she could not recall "word for word".[34]

The evidence of the appellant's solicitor

[69] On 21 May 2012, the appellant's solicitor conferred with the appellant and his barrister.  The barrister advised the appellant to give evidence as it was important that the jury hear his side.  The appellant said he would not give evidence.  The solicitor made and produced a copy of his file note: "Adamant [the appellant] will not give evidence.  [Barrister] advised he should seriously think about it – jury needs to hear his side."[35]

[70] On 28 September 2012, the three again conferred.  The appellant confirmed he would not give evidence.  The solicitor produced a copy of his file note:

"Going through his statement. 

Still adamant on going to trial.  Got him to sign his statement and instructions for go to trial.  Does not want to give evidence!"[36]

[71] At 10.30 am on 2 October 2012, the first day of the trial, he advised the appellant that he needed to give evidence based on Mr Carrier's evidence.  The appellant refused.  The solicitor produced a copy of his file note:

"Spoke to [the appellant].  Advised that the witness Eric Carrier is saying that he was blocked by [the appellant] by him putting up his hand.  [The appellant] denied doing that.  I said the jury will not know unless you give evidence to that effect.  I said we can put that to the witness but that's all.  The jury will not hear your side unless you give evidence.  He confirmed he is not giving evidence.  (Present at the conversation was his friend [Ms McMahon].)"[37]

[72] The solicitor was not required for cross-examination.

The evidence of the appellant's barrister

[73] The barrister was familiar with the affidavits prepared by the appellant, Ms Sherratt and Ms McMahon for this appeal and contested aspects of them.  The appellant always maintained that he would not give evidence at trial, despite the barrister's strident advice that giving evidence was in his best interests.  His barrister considered this was especially important as he was instructed to call as a witness Mr Da Costa, who had already been convicted of the offence.

[74] At the end of the first day of the trial, initially in the absence of the jury and then in their presence, the barrister, consistent with his instructions, advised the court that the appellant would not be giving evidence.

[75]  He conferred at the court with the appellant and his solicitor on the morning of the second day of the trial about the appellant's apology to Mr Petersen in the presence of others.  The prosecutor had provided statements of the relevant witnesses.  The appellant's solicitor had taken statements from the appellant and Ms McMahon.  Their statements were internally contradictory.  The appellant and his barrister returned to court.  Despite the barrister's arguments to the contrary, the judge ruled that the evidence of the apology was admissible.

[76] After the second day of the trial, the appellant and his barrister and solicitor had a short meeting.  The appellant maintained his instructions that he would not give evidence.  The barrister returned to chambers and worked on his address to the jury.  At all stages the appellant consistently instructed that he would not give evidence.

[77] In his oral evidence, the barrister stated that, when giving advice to a client, he did not use the phrase "take the stand".[38]

[78] In cross-examination, he maintained that the appellant did not change his instructions: he consistently stated that he would not give evidence.  He agreed that on the first day of the trial, Ms McMahon told him that she had heard prosecution witnesses discussing their evidence.  He did not raise this matter in cross-examination because he did not think it would assist the defence case.  He could not recall why he reached that conclusion. 

[79] When asked why he did not cross-examine Mr Carrier about the inconsistencies between his evidence and his statement to police, he responded that he was only asked to give evidence in this appeal at 1.20 pm that day.  He had no opportunity to read the trial transcript.  He did not know if he put inconsistencies to Mr Carrier, and, if not, his reasons.  He accepted that he told the appellant he would probably be convicted if he did not give evidence but the appellant did not change his instructions.

The appellant's contentions in the application for leave to adduce further evidence

[80] The appellant contends that this Court should receive the further evidence as it demonstrates that his barrister failed to represent him professionally.  He did not raise inconsistencies in the evidence of prosecution witnesses when cross-examining.  He did not cross-examine the prosecution witnesses about the matter raised by Ms McMahon, that is, that they discussed their evidence before they gave it and had collaborated and concocted their evidence.  Most importantly, his barrister failed to act on his instructions and did not allow him to give evidence at his trial.  These matters, either alone or in combination, and especially his barrister's failure to act on instructions and to call him to give evidence, have resulted in a miscarriage of justice.  The appeal should be allowed, the conviction set aside and a retrial ordered.

[81] In essence, the appellant contends the evidence he seeks to adduce should be accepted by the Court as truthful.  It demonstrates that his barrister conducted his trial so incompetently that a miscarriage of justice has resulted. 

Conclusion on this ground of appeal

[82] The appellant has not demonstrated that any failure of his barrister to cross-examine about inconsistencies in the evidence of prosecution witnesses, and in particular about inconsistencies between Mr Carrier's evidence and his initial statement to police, has undermined the guilty verdict or the process resulting in it.  There has been no miscarriage of justice: see Nudd v The Queen.[39]

[83] Nor has he demonstrated that his barrister's decision not to raise with prosecution witnesses the allegation of Ms McMahon that they were discussing their evidence outside the court room has undermined the guilty verdict or the process leading to it. There has been no miscarriage of justice: see Nudd.

[84] Of more concern is the appellant's claim that he instructed his barrister that he would give evidence and that his barrister acted in flagrant disregard of those instructions.  The difficulty for the appellant is that his evidence on this point is implausible.  His trial counsel was an experienced and respected barrister in the field of criminal law.  All the written file notes, apparently carefully taken by the appellant's solicitor, indicated that the appellant was strongly of the view that he did not wish to give evidence.  If the appellant changed his instructions after the prosecution re-opened its case to lead evidence of the apology, it is inconceivable that his barrister would not have obtained written instructions to that effect and discussed with him the process of giving evidence.  It is also unlikely that, if he so dramatically changed his long standing instructions, his solicitor remained unaware of it. 

[85] The appellant in his written and oral arguments in this Court has been most assertive and persistent.  It seems unlikely that, had his barrister told the judge, without instructions, that the appellant would not give evidence, he would have quietly accepted this in court, without complaint to his lawyers, even after his conviction.  If the appellant did instruct his barrister that he wanted to give evidence and was outraged by the subsequent flagrant disregard of these instructions, it is curious that his notice of appeal, which he signed, did not refer to it. 

[86] It is true that the appellant's account of the conference with his barrister in which he claims to have said that he would give evidence was supported by his sister's evidence.  She, however, was not asked to recall this incident until about four months later and agreed she could not recall it word for word.  While she seems to have done her honest best, I do not find her evidence credible. 

[87] Ms McMahon in her affidavit appeared to support the appellant's evidence that he ultimately instructed his barrister that he wished to give evidence.  But in cross-examination she clarified that she was not present for this conference and that this was only her understanding of the conversation based on what the appellant told her.  It follows that her evidence does not support the appellant's evidence in this respect. 

[88] For all these reasons, I unhesitatingly accept the evidence of the appellant's barrister that the appellant did not instruct that he would give evidence.

[89] As the evidence which the appellant wishes to lead is not cogent, it could not demonstrate that there was a significant possibility, or that it was likely, that a reasonable jury would have acquitted him.  It is not capable of demonstrating that the guilty verdict amounts to a miscarriage of justice.  See Gallagher v The Queen[40] and R v Katsidis; ex parte Attorney-General (Qld).[41]  This Court should not receive it.  The application for leave to adduce further evidence must be refused.  It follows that these contentions dependent on the further evidence are not made out.

Conclusion on the appeal against conviction

[90] As the appellant has not made out any of his many contentions relating to his appeal against conviction, it must be dismissed.

The application for leave to appeal against sentence

[91] The applicant contends that his sentence is manifestly excessive.  He made no substantive submissions relating to sentence in his oral argument.  The large amount of written material he has provided this Court included on opinion from a senior counsel noting that, although his sentence was heavy and another sentencing judge may have given a lesser punishment, it was difficult to argue it was beyond the permissible range. 

[92] The appellant was 32 at the time of this offence and 34 at sentence.  He had a significant criminal history, primarily for relatively minor summary offences including firearm, street and property offences.  Of more concern, in 2005 he was convicted and sentenced to nine months imprisonment suspended for three years and ordered to pay $1,000 compensation for serious assault.  He was convicted and fined $200 for breach of a domestic violence protection order in 2006.  The following year, he was sentenced to 18 months imprisonment with an order that he be released on immediate parole for unlawful stalking, using or threatening to use violence and contravening or threatening to contravene an order.  He was also found to have been in breach of the earlier suspended sentence and ordered to serve all the suspended sentence, with a special condition that he attend an anger management program.   In 2008, he was convicted of a further breach of domestic violence protection order and placed on probation for nine months; the protection order was extended for a two year period.

[93] His co-offender, Mr Da Costa, pleaded guilty to offences arising out of this incident and was sentenced to 18 months imprisonment to be served concurrently with four and a half years imprisonment, suspended after 18 months with an operational period of five years, for an unrelated offence of dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance.  Mr Da Costa was a mature man with a more extensive criminal record for offences of violence.

[94] Mr Petersen provided a victim impact statement in which he referred to the detrimental effect of this offence.  His nose was broken.  He had two black eyes and he was in considerable discomfort for four weeks. He lost about 25 per cent of his sales income over three weeks.  His vehicle was damaged.  He has ongoing concerns whenever he sees "a couple of rough looking blokes".[42]

[95] The prosecutor at sentence submitted that, as the appellant had shown no remorse, a sentence of six to 12 months imprisonment should be imposed, bearing in mind he was not the principal offender and tried to end the violence; parole should be fixed at the half way mark.

[96] Defence counsel at sentence made the following submissions.  The appellant was in an ongoing relationship with Ms McMahon.  He had an 11 year old child from a previous relationship.  He owned his own fencing business.  A sentence of imprisonment would cause him considerable financial hardship and would make it difficult for him to pay his mortgage.  He had a dysfunctional upbringing and was thrown onto the streets at age 14.  To his credit he attended school until part way through grade 10 and had been in steady employment since.  He had no convictions since September 2008.  There was no evidence of any plan to assault Mr Petersen.  Mr Da Costa was the principal assailant.  The appellant caused no personal injury or property damage.  All witnesses agreed that the appellant tried to make Mr Da Costa desist from his violent conduct.  Mr Da Costa's criminal history was much more substantial and his criminality much greater.  The appellant's sentence must be much less.  Counsel tendered a reference from a contractor who described the appellant as "an acceptable tradesman and a hard worker"[43] who was rebuilding his life and attempting to become an acceptable citizen.  His partner, Ms McMahon, provided a reference in which she emphasised his commendable character traits as a partner and father and referred to the hardship which would follow from any prison sentence.  Defence counsel invited the judge to consider wholly suspending the sentence. 

[97] In sentencing, the judge referred to the prevalence of this kind of violence.  Although the appellant did not punch Mr Petersen, his participation was significant.  He stopped the car, walked away leaving the door open and demanded Mr Petersen's phone.  He then assaulted him when he declined to give up the phone and created a situation where Mr Da Costa, who was completely out of control, inflicted serious damage.  Towards the end of the incident and after Mr Carrier's intervention, the appellant encouraged Mr Da Costa to leave.  That may have brought the event to an end earlier than otherwise.  The community would not tolerate such conduct.  Mr Petersen's victim impact statement records his suffering which he should not have had to endure.  A term of actual imprisonment should be imposed to deter the appellant and others.  The appellant, a mature man, obviously had the capacity to be a useful community member.  He did not need probation or parole; his life was in his own hands.  The appropriate sentence was 12 months imprisonment to be suspended after serving six months with an operational period of two years.

Conclusion on the application for leave to appeal against sentence

[98] The findings of fact made by the judge were reasonably open on the evidence.  The judge understandably took a dim view of the appellant's conduct, even though he was not the principal offender and, towards the end of the incident, successfully persuaded Mr Da Costa to cease his unjustifiable violence towards the unfortunate Mr Petersen.  Many other innocent citizens were inconvenienced and distressed by the appellant's conduct.  General and personal deterrence were important.  The appellant was a mature man with a concerning criminal history for past episodes of violence.  He did not have the mitigating benefit of remorse, cooperation with the authorities or an early plea of guilty.  The sentence imposed on Mr Da Costa did not suggest any manifestly unjust disparity.  The appellant's sentence was certainly a severe one and another judge may have imposed a significantly lesser term of actual imprisonment bearing in mind the appellant's recent attempts to rehabilitate and his good work history.  A fully suspended sentence would have been open had the appellant shown remorse and entered an early plea.  The sentence was at the high end of the range but the appellant has not demonstrated that it was manifestly excessive.  It follows that the application for leave to appeal against sentence should be refused.

ORDERS:

1.The application to adduce further evidence is refused.

2.The appeal against conviction is dismissed.

3.The application for leave to appeal against sentence is refused.

[99] MUIR JA: For the reasons given by the President I agree that the application to adduce further evidence should be refused, that the appeal against conviction should be dismissed and that the application for leave to appeal against sentence should be refused.

[100] DALTON J: I agree with the reasons of McMurdo P and the orders proposed.