Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal - Appeal against conviction - Identification and recognition evidence - Adequacy of trial judge's directions - Turns on own facts

Al-Hashimi v The Queen [2004] WASCA 61; (2004) 181 FLR 383

Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Kelly v The Queen [2002] WASCA 134; (2002) 129 A Crim R 363

Mills v The State of Western Australia [2008] WASCA 219

Peck v The State of Western Australia [2005] WASCA 20

R v Defrutos [2008] VSCA 55

R v Spero [2006] VSCA 58; (2006) 13 VR 225

Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159

3 BUSS JA: On 30 April 2009, the appellant was convicted, after a trial in the Supreme Court before Beech J and a jury on 29 and 30 April 2009, of aggravated armed robbery in contravention of s 392 of the Criminal Code (WA). He was sentenced to 4 years' immediate imprisonment. A parole eligibility order was made.

4 The appellant has appealed to this court against his conviction.

1. The trial Judge erred both in law and in fact and there was a miscarriage of justice when he directed the jury concerning evidence of identification;

1. the evidence did not amount to a positive identification of the Appellant as the offender.

1. The trial Judge erred both in law and in fact and there was a miscarriage of justice when he directed the jury concerning evidence of recognition;

1. there was no recognition of the Appellant as the offender.

6 On 1 July 2009, Miller JA ordered that the application for leave to appeal be heard together with the appeal.

7 The State's case at the trial was that the appellant (an African male) and two other young people (an African male and a Somali female) attended the Coles Express petrol station in South Perth at about 3.30 am on 24 April 2005. The two African men (but not the Somali woman) stole from the petrol shop attendant, William John Paige, with threats of violence, a sum of money, the property of Eureka Operations Pty Ltd trading as Coles Express South Perth. During the robbery, the appellant was armed with a knife.

8 The State relied on identification evidence from Mr Paige, and recognition evidence from the Somali woman, Ayan Abdi Mohammad, who was with the men.

9 At the trial, Mr Paige gave reasonably general, non-specific, descriptions of the two African men (ts 79 - 80). He said they had entered the petrol station at about 1.00 am on 24 April 2005 (ts 77). At that time, they were not accompanied by the Somali woman. Later that morning, at about 3.45 am, the two African men returned with the Somali woman (ts 78).

10 Mr Paige said that after the three people in question came into the petrol station at about 3.45 am, he noticed one of the African men had a knife, which he described as 'a bit like a steak knife', about 20 cm in length (ts 80). The offender with the knife, whom the State asserted was the appellant, was in the store for about 10 minutes (ts 85). He climbed over the counter and demanded that Mr Paige open the cash register, which he did (ts 80). The other African man was near the counter and the female was close to the door (ts 80, 82). The female yelled to the African males 'to hurry up, they had to go' (ts 84).

11 The offence was captured on surveillance camera, and the footage was tendered by the prosecutor, without objection, and played to the jury (ts 70, 86 - 87).

12 Mr Paige provided the police with a signed statement about 10 minutes after the offenders left the premises. However, he did not sign a typed version of the statement until about two years later, on 7 June 2007 (ts 86, 99 - 100).

13 On 7 June 2007, Mr Paige participated in an identification procedure (ts 88). Mr Paige said in evidence that at that time he still remembered the incident 'pretty well' (ts 89). He added that the incident was a 'very' prominent event for him (ts 89). He accepted, however, in cross-examination that the lapse of time between the commission of the offence and the identification procedure (more than two years) had affected his recollection of the incident (ts 100 - 102).

14 During the identification procedure on 7 June 2007, Mr Paige selected image number 5 (being the appellant) from a photoboard as the offender who had jumped over the counter with the knife. The procedure was visually and audio recorded. The recording was tendered by the prosecutor, without objection, and played to the jury (ts 89). Mr Paige said in evidence-in-chief that when he selected the appellant's image, during the procedure, he was 'very sure' that this was the person who had jumped over the counter (ts 99).

15 During the identification procedure on 7 June 2007, Mr Paige was also shown another photoboard. In this photoboard, the image of a person alleged by the police to be the second offender, Amed Igal, was at number 8. Mr Paige selected number 10 as the second offender. This person was not of interest to the police in relation to the offence (ts 132).

16 Mr Paige's evidence in cross-examination was, relevantly, as follows:

(a) he was not shown the surveillance camera footage of the incident before he identified the appellant from the photoboard (ts 100);

(b) he took just under two minutes to examine the photoboard before he selected the appellant (ts 101).

17 A little later in cross-examination, this exchange occurred:

You took your time, as we saw. You didn't jump to conclusions, okay? Let me put it broadly before coming to each individual. Can you be sure that you picked the robbers in each case?---I thought I had.

I am choosing my words carefully. You did your best?---I did, yes.

Yes, but given the passage of time and the circumstances in which you made your views would you admit the possibility of having made a mistake?---Of course (ts 102).

18 Mr Paige was re-examined. He said that when he was first shown the photoboard with the appellant's image he thought all of the images were alike; that is, all the photographs 'looked very similar' (ts 108).

19 Ms Mohammad gave evidence that she was born in Somalia and had been in Australia for 8 years (ts 134). She admitted that she had been at the Coles Express petrol station in South Perth on 24 April 2005 with two African men who had robbed the attendant.

20 Ms Mohammad knew one of the offenders by the nickname 'Hamze' (ts 137). She had known him for about two or three weeks before the robbery (ts 136). During that period, she had seen him twice (ts 136). On each occasion he had visited the house of her friend, Miriam. Hamze and others had spent the night at the house (ts 136). Ms Mohammad had lived at Miriam's house for about a month (ts 134).

21 Ms Mohammad had first met an African man called Amed in 2004, and had seen him occasionally since that time (ts 137).

22 On the evening of 23 April 2005, Ms Mohammad was at Miriam's house (ts 134). Some time that afternoon, Hamze and other friends arrived (ts 134 - 135). They talked and some of them were drinking (ts 136). At about midnight, she left the house to go out with Hamze and Amed (ts 136 - 138). After leaving the house, they walked past the Coles Express petrol station with a view to catching a taxi to attend a nightclub (ts 137). They went into the petrol station because Ms Mohammad wanted to buy some food (ts 139). Before they entered the petrol station, Hamze and Amed had a conversation about committing a robbery (ts 139). Hamze said: 'Do you want to rob this place?' and Amed said: 'Yeah' (ts 139). She thought they were joking (ts 140). She said Hamze and Amed committed the offence (ts 138 - 142). Hamze carried a knife (ts 148). After the offence, she next saw the offenders about 10 minutes later at Miriam's house (ts 142).

23 Ms Mohammad described Hamze as being 'really tall', with a 'really big build' and 'really really short hair ... almost shaved' (ts 144). He had black skin and was from Somalia (ts 144). Also, he had a long nose with a tip, big brown eyes and was aged about 23 or 24 years (ts 144).

24 After 24 April 2005, Ms Mohammad did not see Hamze again (ts 145), but she spoke to him by telephone 'a few times' and, during one of these conversations, he spoke about the incident at the petrol station (ts 145). She said that during the telephone calls she 'sort of recognised' his voice, but also said that she 'knew it was him' (ts 146).

25 Ms Mohammad spoke with the police on 23 May 2007, shortly after returning to Australia from Somalia, and provided them with a statement on 23 May 2007, but did not sign a typed version of the statement until 5 June 2007 (ts 147, 151). Ms Mohammad was interviewed by the police 'under caution' before providing the statement (ts 130).

26 On 5 June 2007, Ms Mohammad participated in an identification procedure (ts 148). The procedure was visually and audio recorded. The recording was tendered by the prosecutor, without objection, and played to the jury (ts 147). During the procedure, after being handed a photoboard, Ms Mohammad almost immediately said 'Huh interesting - oh my God ... number 8, yeah number 8 is the one in the video; that's Hamze ... oh my God, yeah this is the guy - number 8 in the video at the robbery - that's the one that held the knife to the guy - number 8'. The appellant's image was at number 8.

27 It emerged in evidence that Ms Mohammad had seen the surveillance camera footage of the offence before she participated in the identification procedure (ts 148). The evidence did not reveal, however, when she had seen the footage. The trial judge properly warned the jury that the reliability of Ms Mohammad's recognition of the appellant may have been affected by her having seen the footage.

28 Although Ms Mohammad mentioned a knife in the course of the identification procedure, she said in evidence that she no longer recalled seeing a knife (ts 148).

29 When asked at the trial if the image of the person she had selected during the identification procedure was the person at the petrol station with the knife, she said 'Mm' (ts 148). When asked if that person was Hamze, she said 'I think so, yes' (ts 148). A little later, she agreed with the prosecutor that the image she had selected was Hamze, and that she had known him for two or three weeks before the offence (ts 148).

30 Ms Mohammad said in evidence that the photoboard she had been shown during the identification procedure was different in colour from the photoboard she was shown at the trial (ts 149), even though the police officer who conducted the procedure, and through whom the photoboard was tendered, said that the tendered photoboard was the photoboard he had shown to Ms Mohammad.

31 The cross-examination of Ms Mohammad was brief. It comprised, relevantly, the following:

The photograph that you see at number 8 isn't in fact one of the two people who were present at that service station?---Is it?

I'm asking you?---Yeah. Are you asking me, 'Is it the picture?'

Yes?---Yeah, the picture looks really similar to the person that I saw.

Really similar or - - -?---Similar.

Let me ask you this: can you be certain that that picture 8 is one of the two people who robbed that Coles Express?---No, because I didn't know the person for that long and that's what I didn't get a chance to say (ts 149).

Just back on photograph number 8, at the time that you conducted the photoboard who did you understand that to be a photograph of?---I don't know, because they all look similar, but the colour was different from here. Get me - the colour?

How was it different?---Like, it wasn't colour.

It wasn't in colour?---It was different. Like, it was just different. It looked different to me. I don't know.

In the photoboard that we saw in the video you make a number of comments after you pick a photograph?---Yeah, because they look similar. 8 was what was in here too.

When you made that choice, how certain were you at that time?---I was just scared because I thought I was in trouble, you know. I thought I was really in trouble. So I didn't know what else to do. I really - that's what I really thought. Like, I was really scared. I was just - I just came straight from Somalia, like, for a holiday and they got me, what, a week later, when I came off the plane, and I thought I was going to gaol so I was just scared - like, I was really scared (ts 149 - 151).

33 The appellant did not give sworn evidence at the trial or adduce any other evidence. His defence was that he was not involved in the robbery, Mr Paige and Ms Mohammad were mistaken, and the jury could not be satisfied beyond reasonable doubt that he was the offender with the knife.

34 The trial judge, in his summing up, gave the jury detailed instructions and warnings about the identification and recognition evidence.

35 The trial judge said in relation to the evidence of Mr Paige:

You should take into account the risk that an identifying witness such as Mr Paige may have selected the photograph that was most like the offender rather than selecting the photograph that correctly identified the accused as the actual offender, and finally in relation to photographic identification evidence, you should bear in mind that it is capable of being influenced by expectations. For example, you should bear in mind the possibility that a witness is influenced, perhaps subconsciously, by the belief that the offender must necessarily be in one of the photo groups that he is asked to examine.

In taking that into account, you can also take into account that each identifying person is told by the police officer that they shouldn't expect necessarily to see the person in the photograph. However, that does not necessarily remove the risk that consciously or, perhaps more importantly, subconsciously there may be such an expectation.

There are particular features of the evidence of Mr Paige that I draw to your attention as important to bear in mind in assessing his evidence. First, there is the two years - the passage of more than two years before he looked at the digiboard or photoboard. The events were stressful, and on his own evidence, he was not focused on observing the persons who were involved; he was focused on other things that he described in his evidence that I have outlined to you. He gave a very general description and no part of his description referred to the facial features. He himself conceded that he may not be right in his identification, and you might form the view that he has clearly got the other identification that he performed wrong and that he has selected as an offender a person who, on Mr Zanetti's evidence, could not have been the offender ...

So I have summarised for you the evidence of ... Mr Paige and I have summarised the submissions of the crown and defence in relation to the strengths and shortcomings, but what I have just done was a separate and important step, and that was myself to isolate and identify to you matters of significance that you might regard as undermining the reliability of the identification evidence.

It is a matter for you, but it is because of the problems associated with identification evidence and the special need for caution for a jury, before convicting in reliance on the correctness of identification evidence, that I have independently directed you of weaknesses which I think the identification evidence reveals. As I have warned you, honest witnesses can be wrong and sometimes many people, even everyone, can be wrong (ts 190 - 191).

36 The trial judge said in relation to the evidence of Ms Mohammad:

In this case one of the things to which you must pay attention is how well the witness, in this case Ms Mohammad, said she knew the person she later identified and referred to as Hamze, and I will come back to that. But you have heard the evidence is that she said she had met Hamze on two previous occasions at the house that was Miriam's house.

If a person honestly believes their recognition of an accused person is correct, the witness can be very convincing when giving evidence even though they are mistaken. That has also been the experience of judges and lawyers. It is also our experience that more than one witness can be mistaken in their recognition when they say they recognise a person as an offender.

Ms Mohammad was shown a photoboard more than two years after the events that she has described so I go back to and I refer you to everything I said about the need for caution in relation to photoboard identification: the fact that it is two-dimensional and is therefore limited in the way that I gave you some detail about; the danger that the photograph resembles the person who is recalled rather than being the person who is recalled; and the risk that the witness might select the photograph that was most like the offender but did not accurately identify the person as the offender. Again, it is very important to bear in mind that the identification process took place more than two years after the events in question.

When you view - having viewed the DVD that is exhibit 7, you may well have noticed from what Ms Mohammad said that she referred to the surveillance DVD during that process, so it is apparent that she had seen the surveillance DVD before she looked at the folder of photographs and performed the identification procedure. In assessing her evidence you must consider the question of whether that influenced her identification of photograph number 8 as the person that she said she knew as Hamze.

When she was looking at the photoboard in June 2007 you may ask yourself was she identifying the person she had seen in the DVD - was she attempting to identify the person she had seen in the DVD in more recent times as against correctly identifying the person that she recalled being with and knowing back in April 2005.

...

There are other features of Ms Mohammad's evidence that I suggest are important and must be taken into account. I have already mentioned the more than two years that had passed by the time she undertook the process. She had known the person she referred to as Hamze for two or three weeks and had been with him on two occasions when he had come to the house. On the night in question, on her evidence, she was with him for a period of some hours. She did not see him again between April 2005 and June 2007, when she was shown the photoboard. You must take into account her evidence that at the time that she looked at the photoboard, she was scared and thought she might have to go to gaol, and I will come back to that very shortly.

In her evidence in cross examination she said that photo 8 looked really similar or at least similar to the person that she had been with on the night in question and referred to as Hamze. She said in her evidence that she cannot be certain that the person in photograph 8 was a person in the robbery because she hadn't known the person she calls Hamze for very long.

In considering Ms Mohammad's evidence, you must also take into account that she was present when the offence was committed. She said herself in her evidence that when she selected photograph 8 as the person who had committed the robbery, she was scared and thought that she was in trouble. That is evidence that you should take into account in deciding whether you are satisfied that her evidence that she knew [the appellant] as Hamze and recognised him as one of the persons involved in the robbery is reliable and truthful. You should bear in mind the prospect that her concerns for her own position in June 2007 may, consciously or unconsciously, have influenced her in favour of selecting a person from the photoboard.

I have almost come to the conclusion of my remarks, members of the jury. I mention that Ms Mohammad's evidence was to the effect that the offence was committed by men she knew as Hamze and Amed. I mention that there is no evidence that [the appellant] is known as or referred to as Hamze. There's no evidence one way or the other on that question (ts 192 - 194).

37 Before this court, counsel for the appellant conceded, properly, that there was evidence before the jury of a positive identification by Mr Paige (in the course of his identification procedure) of the appellant as the offender with the knife, and a positive recognition by Ms Mohammad (in the course of her identification procedure) of the appellant as that offender.

38 Counsel also accepted, as he must, that the grounds of appeal do not assert that the verdict of guilty, on which the appellant's conviction is based, should be set aside because, having regard to the evidence (in particular, the evidence of Mr Paige and Ms Mohammad), it is unreasonable or cannot be supported.

39 Counsel's argument was that the trial judge erred in giving the jury 'a full "Domican style" warning' in relation to Mr Paige's evidence. It was submitted that, as a result, his Honour 'effectively elevated that evidence in the eyes of the jury to testimony positively identifying the appellant as the offender'.

40 Similarly, counsel argued that the trial judge erred when he gave the jury 'a full "Domican style" warning' in relation to the evidence of Ms Mohammad. It was submitted that, as a result, his Honour 'cemented [her evidence] in the minds of the jury as evidence of recognition when it clearly wasn't'.

41 According to counsel for the appellant, the trial judge did not instruct the jury 'in sufficient terms' how the evidence of Mr Paige and Ms Mohammad at trial 'undermined or lessened' their identification or recognition evidence, as the case may be, by reference to the photoboard. His Honour should have told the jury, so it was submitted, that the evidence given by Mr Paige and Ms Mohammad at trial undermined or lessened the probative force of the positive identification and recognition made on the recordings that were tendered.

42 There is a well-established distinction between 'identification' and 'recognition' evidence. In general, identification evidence describes the evidence of a witness who identifies an accused as the offender in circumstances where the witness first saw the accused at or near the crime scene. In general, recognition evidence describes the evidence of a witness who recognises an accused as the offender in circumstances where the accused was previously known to the witness or had previously been seen by the witness other than at or near the crime scene. Where the witness's previous knowledge of the accused was tenuous, or the witness's previous sighting of the accused was fleeting, the witness's evidence that he or she recognised the accused at or near the crime scene may, in substance, resemble 'identification evidence'. The nature and character of the witness's previous connection with the accused is the crucial issue, rather than the characterisation of his or her evidence as 'recognition' evidence. See Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272 [59] (Blow J, Cox CJ and Slicer J, relevantly, agreeing); Kelly v The Queen [2002] WASCA 134; (2002) 129 A Crim R 363 [35] - [46] (McKechnie J); Al-Hashimi v The Queen [2004] WASCA 61; (2004) 181 FLR 383 [24] - [26] (Miller J, Wheeler and EM Heenan JJ agreeing); Peck v The State of Western Australia [2005] WASCA 20 [50] - [59] (Roberts-Smith JA, Steytler P and Wheeler JA agreeing); R v Spero [2006] VSCA 58; (2006) 13 VR 225 [25] - [29] (Redlich AJA, Maxwell P, Buchanan JA agreeing); R v Defrutos [2008] VSCA 55 [42] (Vincent JA, Buchanan and Kellam JJA agreeing); Mills v The State of Western Australia [2008] WASCA 219 [73] (Buss JA).

43 In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ made these observations as to identification evidence and the circumstances in which a trial judge must warn the jury of the dangers of convicting on such evidence:

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed (Kelleher v The Queen [1974] HCA 48; (1974), 131 CLR 534, at p 551; Reg v Turnbull [1977] QB 224, at p 228; Reg v Burchielli [1981] VicRp 61; [1981] VR 611, at pp 616 - 619; Reg v Bartels (1986), 44 SASR 260, at pp 270 - 271). The terms of the warning need not follow any particular formula (Reg v De-Cressac (1985), 1 NSWLR 381, at p 384; Reg v Finn (1988), 34 A Crim R 425, at pp 435 - 436). But it must be cogent and effective (Reg v Dickson [1983] VicRp 19; [1983] 1 VR 227, at p 230; Reid (Junior) v The Queen [1990] 1 AC 363, at p 380). It must be appropriate to the circumstances of the case (Reg v Aziz [1982] 2 NSWLR 322, at p 328; Reg v Allen (1984), 16 A Crim R 441, at pp 444 - 445). Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case' (Smith v The Queen (1990), 64 ALJR 588, at p 588). A warning in general terms is insufficient (Kelleher v The Queen (1974), 131 CLR, at p 551). The attention of the jury 'should be drawn to any weaknesses in the identification evidence' (Kelleher v The Queen (1974), 131 CLR, at p 551). Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it (Davies and Cody v The King [1937] HCA 27; (1937), 57 CLR 170, at pp 182 - 183). It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence (561 - 562).

44 Later in the joint reasons in Domican, their Honours considered the proper approach to the evaluation of the adequacy of a warning in an identification case:

[T]he adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case (ibid, at p 446; Reg v Dickson, [1983] 1 VR, at p 230; Reg v Allen (1984), 16 A Crim. R, at pp 444 - 445). But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused (See Reg v Bartels (1986), 44 SASR, at pp 270 - 271; cf Reg v Goode [1970] SASR 69, at p 77). The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence (565).

See also Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [9] - [17], [21] - [24] (Wheeler, McLure, Pullin, Buss & Miller JJA).

(a) Mr Paige positively identified the appellant from the photoboard as the offender with the knife.

(b) Similarly, Ms Mohammad positively recognised the appellant from the photoboard as the offender with the knife.

(c) The recordings of Mr Paige's and Ms Mohammad's identification procedures were tendered by the prosecutor without objection.

46 Mr Paige acknowledged in cross-examination the 'possibility' that his identification of the appellant as the offender with the knife might be mistaken (ts 102). Ms Mohammad said, in substance, in cross-examination that she could not be 'certain' that the appellant was one of the offenders who had committed the robbery (ts 149). Plainly, whether and, if so, to what extent the evidence of Mr Paige and Ms Mohammad at trial (including the evidence I have just mentioned) undermined or lessened the probative force of their out of court positive identification and recognition of the appellant was a question for the jury.

47 The trial judge gave detailed instructions and warnings to the jury in accordance with Domican. The purpose of giving a Domican warning is to guard against the risk that identification or recognition evidence may be mistaken, and to alert the jury to the weaknesses of the evidence in question and the dangers of convicting on disputed identification evidence. As I have mentioned, the appellant's defence was, relevantly, that Mr Paige and Ms Mohammad were mistaken. Unsurprisingly, the appellant's trial counsel did not object to his Honour giving a Domican warning or complain about its terms.

48 The possibility that Mr Paige and Ms Mohammad might have been mistaken, in their identification and recognition of the appellant as the offender with the knife, was the foundation for the giving of the Domican warning. Remarkably, counsel for the appellant, before this court, sought to rely on the possibility of mistake as negativing the out of court positive identification and recognition and, then, to argue that his Honour erred in giving the Domican warning. Counsel's submissions on this issue were circular and illogical. No error has been made out.

49 The trial judge summarised, with fairness, the State's case and the appellant's case. His Honour then gave a balanced and detailed account of the evidence of Mr Paige and Ms Mohammad including aspects of their evidence which, from the appellant's viewpoint, were favourable to him. His Honour emphasised relevant weaknesses in the probative force of the identification and recognition evidence, and gave the weight of his judicial authority to a warning about those weaknesses.

50 I am satisfied that it was unnecessary for the trial judge to inform the jury in even more specific or detailed terms of how the evidence of Mr Paige and Ms Mohammad at trial might have undermined or lessened the probative force of their out of court positive identification and recognition. This was a short trial. It was completed within two days. The focus was on the reliability of the identification and recognition evidence. As I have mentioned, the grounds of appeal do not assert that the verdict of the jury was unreasonable or that the verdict was not supported by the evidence.

51 The appellant's grounds of appeal are devoid of merit. I would therefore refuse leave to appeal.