15 April 2010
GDD v R
NJC v R
Judgment
1 GROVE J: The appellants GDD (a male) and NJC (a female) were jointly tried and convicted before King DCJ and a jury at Sydney District Court on a count of aggravated sexual assault in company contrary to s 61J (1) of the Crimes Act 1900. They were acquitted by the jury on a count charging the same conduct with an additional ingredient of deprivation of liberty, charged contrary to 61JA (1) of that Act. They were each sentenced to a term of imprisonment.
2 GDD appeals against his conviction on these grounds:
"1. The Crown Prosecutor's final address to the jury led to a miscarriage of justice.
2. The trial judge erred in failing to discharge the jury at the close of the Crown Prosecutor's final address.
3. The trial judge erred in that he failed to give appropriate directions to the jury to cure inappropriate and unfair comments by the Crown Prosecutor in her address to the jury.
4. The verdict was unreasonable or cannot be supported or there was a miscarriage."
3 NJC appeals against conviction and, in the alternative, seeks leave to appeal against sentence on these grounds:
" CONVICTION
1. The Crown prosecutor's closing address to the jury gave rise to a miscarriage of justice.
2. The verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
SENTENCE
1. The imposition of identical sentences on the applicant and the applicant's co-offender despite the existence of material differences between their respective cases gives the applicant a justified sense of grievance."
4 The Crown case, reciting a good deal but not the entirety of detail, was as follows. The complainant LAC was NJC's sister. NJC lived in a flat at Riverwood and her boyfriend, at the time referred to as her fiancé, often stayed. At the time LAC was eighteen, NJC was twenty one and GDD was twenty seven.
5 On 24 June 2007 LAC was at Roselands Shopping Centre with two friends, Megan Hendricks and Megan Tangye. At some point of the day NJC had spoken to LAC on the mobile phone and asked her to come to the Riverwood flat. LAC declined. Later NJC came to Roselands. She persisted with her request, saying that if LAC did not come to the flat her boyfriend (then detained in a juvenile institution at Kariong) would be bashed and potentially embarrassing photographs of LAC would be published over the Riverwood District. Later LAC and her friends left the shopping centre and Megan Hendricks separated from them. LAC and Megan Tangye were at Riverwood Station when NJC again approached and ultimately LAC acceded to her repeated requests to go to the flat. Megan Tangye accompanied her. Upon arrival there was a conversation by phone with LAC and NJC's mother. LAC told her mother she would be home by 8pm and the phone was passed to Megan Tangye who was told she was not to enter NJC's flat. It is possible that she did enter at some stage but nothing turns on this. Certainly the others did enter. GDD was there. He was listening to music and drinking.
6 Thereafter NJC escorted Megan Tangye to the station. After she returned GDD asked her to go to the hotel and get some beer, which she did. LAC was watching television during this time.
7 NJC told LAC that she was going out and that they had to "do it". In response to enquiry as to what she meant, NJC said that she wanted LAC to "fuck" GDD. LAC said that she did not want to but insistent demands were repeated. From time to time NJC left, locking the door, and when she re-entered she asked whether LAC "had done it yet". Further reference was made to the vulnerable position of LAC's then boyfriend and the "pictures". GDD showed an image of NJC and LAC on the screen of his laptop which depicted them reclining naked on a couch. LAC in her evidence said that she did not know when this photograph was taken but she recognized the location as being within NJC's flat. Another image was produced. This was of a younger sister KR, who was naked from the waist upwards. (LAC testified that the three sisters shared the same mother but each had a different father).
8 After declining the multiple importunings about engaging in sex with GDD, LAC went to leave the flat but NJC pushed her back and directed her to sit on one of the two mattresses which lay on the floor. GDD then approached and began to unzip her jacket. LAC resisted and GDD called on NJC to help. She came and, in particular, she removed LAC's bra. When LAC had been undressed GDD removed his trousers and told NJC to leave. GDD then physically overbore LAC and had sexual intercourse with her. During this act, NJC came in and out of the room on several occasions, closing the door each time when she left. She was silent in response to requests by LAC to make GDD stop.
9 Once the act of intercourse was finished LAC ran to the bathroom where she vomited. She then retrieved her clothes, dressed and left. She encountered NJC outside, who was at the time securing her bicycle. LAC did not speak but NJC ran after her and said that GDD was deleting the photographs from the computer. LAC simply responded "whatever" and continued to walk home.
10 This walk took about twenty minutes and she arrived about 11.45 pm. Her mother asked her what took her so long to get home and she said "They gave me something to eat." No further conversation between them occurred and LAC went straight to her bedroom where she slept. The following morning she rose, took clothing to the bathroom and "jumped in the shower." Afterwards she sat in the lounge room with her mother but they did not converse. By that time, KR had gone to school.
11 At about 2.30 pm, LAC called Megan Hendricks and arranged to go to visit her. On arrival, she told her that she had been "raped by my sister's fiancé." Ms Hendricks called the police and arranged to meet them nearby at a convenience store. Police and ambulance attended. LAC was taken to St George Hospital where she was examined, after which she was taken to Riverwood Police Station and there made a statement about the events. A police officer telephoned LAC's mother who came to the police station to collect her.
12 GDD gave evidence that he generally resided with his sister Katrina at Campbelltown but he stayed about three nights per week with his fiancée NJC at the Riverwood flat. There existed no animosity between LAC and himself and he was acquainted with her mother and her sister KR.
13 Shortly after LAC's eighteenth birthday LAC was at the flat and asked NJC and GDD how to do "certain sexual things." Thereafter, inter alia, NJC fellated GDD after which LAC performed a similar act. On subsequent occasions GDD engaged in demonstrations of sexual activity with LAC from time to time, a total of about four or five occasions. NJC was present on all occasions except one.
14 On 24 June 2007 GDD was at the Riverwood flat playing on his X Box, a computerised amusement device. He was aware of some telephone contact between NJC and her mother and he understood the latter was concerned about LAC's activity at Roselands and the company she was keeping there. NJC said she was going to the shopping mall and he told her to keep in touch. As a result he received several telephone calls. He also spoke to LAC and told her that unless she obeyed her mother and sister, he would refrain from getting a solicitor, whom he apparently knew, to represent her boyfriend who, as noted, was in detention at Kariong.
15 He denied that he said anything about the boyfriend being bashed nor did he hear NJC say anything to that effect. Later in the afternoon he heard some commotion outside the flat. He became aware of the presence of LAC and Megan Tangye in addition to NJC. He was not particularly interested in what was occurring and continued playing his games instrument. He confirmed that NJC later escorted Megan Tangye to the station and that she had also fetched some beer for him.
16 GDD said that the order of events was that NJC and LAC were in the kitchen cooking when a neighbour called to leave a DVD of a movie (Spiderman III). Subsequently NJC said to him that LAC wanted to have sex. In response he "would say okay". He continued playing on the X Box. LAC said to him "Are you coming down?" She was lying under the blankets on one of the mattresses and she "flashed herself" and he saw that she was naked except for socks. He said "give me a minute" and he continued his game for three or four minutes.
17 He then undressed and joined LAC and had sexual intercourse with her. While this was occurring he said NJC was "playing the rest of my racing game." At the conclusion of the intercourse LAC went to the bathroom for about a minute and then returned, dressed and said that she had to go. GDD said "see you later", NJC said "Bye" and LAC then left.
18 As is obvious from the foregoing GDD asserted that what occurred between himself and LAC was consensual.
19 GDD's sister gave some evidence relating to conversation with the mother and with KR concerning the circumstances in which the photograph of KR had been taken.
20 NJC did not give evidence but it can be deduced from cross examination of LAC by counsel that NJC's stance was that LAC had asked her whether she (LAC) could have sex with GDD and NJC said that she would ask. During the evening consensual intercourse took place between GDD and LAC. NJC was present whilst it occurred.
21 Grounds 1, 2 and 3 in GDD's Notice of Appeal and ground 1 in NJC's Notice of Appeal raise complaints which can be dealt with together. The grounds relate to the conduct of the case by the prosecutor. A convenient summary of the applicable law appeared in the judgment of McClellan CJ at CL (Barr and Price JJ agreeing) in Causevic v R [2008] NSWCCA 238:
"3. The principles which guide a prosecutor's function when addressing a jury in a criminal trial are well known: see R v McCullough (1982) 6 A Crim R 274; Whitehorn v The Queen (1983) 152 CLR 657; R v Rugari (2001) 122 A Crim R 1; Libke v The Queen (2007) 230 CLR 559; (2007) 81 ALJR 1309; R v Liristis (2004) 146 A Crim R 547; Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659; R v KNP [2006] NSWCCA 213; (2006) 66 NSWLR 227 and Gonzales v R [2007] NSWCCA 321.
4. The principles relevant to this appeal may be summarised as follows:
A prosecutor is required to act in fairness and detachment and with the objective of establishing the whole truth ( Whitehorn at 663).
Although the Crown is entitled to put the Crown case firmly and vigorously this must always be done fairly, temperately and with detachment and restraint, bearing in mind that the prosecutor's function is to aid the attainment of justice, not the securing of convictions (see Liristis at [94]).
Whether or not the prosecutor has acted with the relevant degree of fairness and detachment may depend upon the atmosphere of a particular trial (see McCullough at 286).
In considering the question of fairness it is necessary to keep in mind that a criminal trial is of an adversarial nature (see Rugari at [52]; Libke [71] and [72]).
When complaint is made it is necessary to consider whether the prosecutor's conduct was such as to distract the jury from rational consideration of the case of the Crown and the defence (see Gonzales at [100]). It is wrong for a Crown prosecutor to become so much the advocate that he or she is fighting for a conviction and to quite impermissibly embark upon a course of conduct calculated to persuade a jury of a point of view by inspiring prejudice or emotion (see R v Roulston (1976) 2 NZLR 644 at 354).
5. In Livermore the court identified a number of matters in a Crown prosecutor's address which could lead to a miscarriage of justice (at [31]):
(i) A submission to the jury based upon material which is not in evidence.
(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
(iii) Comments which belittle or ridicule any part of an accused's case.
(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon her credit.
(v) Conveying to the jury the Crown Prosecutor's personal opinions.
6. When it is submitted that a trial has miscarried by reason of the prosecutor's address it is necessary to consider the whole of that address. Each case will depend upon its particular circumstances."
22 That statement of principle was recently re-affirmed in Cittadini v R [2009] NSWCCA 302.
23 In his helpful and candid written submissions Mr Grogan of counsel (who appeared for the Crown in the appeal but did not prosecute at trial) stated:
"The Crown Prosecutor made a number of errors in her address. Some of these concerned matters of fact others concerned expressions of personal opinion. However the relevance of those errors has to be assessed in the context of the trial."
24 Insofar as it has frequently been observed that it is difficult for this Court always to be able to gauge the atmosphere of a trial, it is not without significance that there were complaints about the prosecution address immediately upon its conclusion. His Honour in fact expressed agreement with some of the matters raised but observed, understandably, that his own notes may not have kept up with the speed of the address. He said "many of the matters" complained of could be expected to be addressed by counsel.
25 Addresses by counsel for the accused, as they then were, followed. It is plain that, at their conclusion, it was appreciated that there remained issues about what the prosecutor had said. His Honour told the jury that he would not commence his summing up that afternoon and he dispersed them with a direction that they would not need to reconvene before 11 am on the next day.
26 Earlier he had informed counsel that he had requested that the addresses be transcribed. After the jury withdrew, discussion took place about when that transcript might be available. Access was had to a transcript overnight and, upon resumption of the hearing, application to discharge the jury by reason of ingredients in the prosecutor's address was made. The application was refused, his Honour stating:
"The short form gentlemen is that either alone or in combination I do not accept that the matters raised warrant the discharge of the jury. However I will as indicated during the course of the summing-up make the corrections that I have so far indicated I feel are appropriate and which the Crown has conceded."
27 It has been noted that, as addresses on behalf of the accused followed the address of the prosecutor, counsel had been invited to advance corrections which they considered ought be made. Their addresses were focussed upon contradictions in the evidence which were submitted to the jury to undermine the credit of LAC whose testimony the jury was required to accept on the central issues beyond reasonable doubt.
28 It is not necessary for present purposes to recapitulate or analyse the various bases of attack, but it is readily understandable that concern could be harboured that the force of those submissions might be diminished, or even lost, by digressions in address to deal with a variety of complaints on unconnected discrepancies in the Crown Prosecutor's address.
29 I turn to matters which were the subject of complaint.
30 The Crown Prosecutor said:
"We know from the evidence from the other young ladies who came to give evidence that people regularly went to this unit and hung out on these two mattresses. This idea they never had visitors - or sorry, rarely, time to time had visitors doesn't fit in with the bits and pieces of evidence you've heard from these other witnesses."
31 There was, as conceded in the appeal, no evidential basis for the Crown's submission.
32 His Honour responded to the complaint and the transcript of his summing up reads:
"(Now for counsel's benefit, p411). The Crown Prosecutor said this to you, at line 6, 'We know from the evidence from the other young ladies who came to give evidence that people readily went to this unit and hung out on these two mattresses.' Well the only evidence in this trial of other persons or young ladies hanging out at those premises was from those witnesses called during the trial. At the most you heard some evidence of I think two, it may have been three, but perhaps only two occasions when other persons went to those premises. There was no evidence that people regularly went to the unit and hung out on the two mattresses."
33 What the Crown Prosecutor said was effectively designed to contradict testimony by GDD that not many people came to the flat and that for most of the time he and NJC were alone there. An adequate cure of the mis-statement by the prosecutor should have referred to its inability to make that contradiction.
34 There was no evidence of any injury to GDD which may have occurred as a result of resistance by LAC to his having intercourse with her. The Crown Prosecutor was apparently seeking to counter what she anticipated might be made of the circumstance that the medical examiner found no significant bruises on LAC. An invitation to the jury to speculate about injury to GDD should not have been made. It should be examined in the context where the prosecutor said:
"There is no suggestion that (GDD) was hitting her about the face, or that (GDD) was punching her. He was pinning her down. And I particular ask the females on the jury to - from your life experience appreciate how much stronger men are than women, let alone a 28 year old man and an 18 year old girl. If I guy wants to pin you down he can pin you down. He doesn't have to give you a black eye or bruises all over you to be pinned down. So, as the doctor said, there can be occasions where people are raped and there are no marks on them. There may be some marks on (GDD) from being kicked. We don't know about that. Kicked in the struggle. He might've got a few bruises from her efforts but he doesn't have to put much force to pin her down. She's already sitting on it, he's pushing her down. And once a guy's on top of you he's on top of you. You've got Buckley's of getting away. And I ask you from your own life experience - I'm not suggesting anyone's been raped or anything, but just mucking around when you're a kid with boys. They're impossibly strong and let alone when an 18 year old versus a 28 year old."
35 This mis-statement was the subject of express complaint but his Honour's response was to observe, "I frankly can't see the jury making anything of it."
36 It is true, as was submitted in the appeal, that there was no specific request for a direction. It was submitted that it should be concluded that counsel accepted that there was nothing to be gained from drawing further attention to the matter. That suggestion ignores that a dilemma had been created by the prosecutor by suggesting fact finding by the jury which was not based upon evidence. A correction was required.
37 I would add a further comment, although it was not the subject of complaint, but I would have some reservation about the propriety of an invitation to a limited group of the jurors, designated by gender, to draw particular inferences in matters pertaining to their fact finding function. Of course, jurors bring their individual characteristics and experiences for use in their task but it is not the role of counsel to urge selective deliberation.
38 Objection was taken to the Crown Prosecutor's description of the defence case as portraying LAC as "a sexual aggressor". The first time the expression was used it was defined as referring to LAC being the one who asked for sex. To the extent that a somewhat strong word was used to mean an initiator, it would not raise a matter for concern. However, references to the defence seeking to paint LAC as an aggressor were repeated. The Crown Prosecutor continued:
"…..and we are meant to accept that she's somehow sexually attracted to (GDD) and needs to learn all - she's a sexual aggressor."
39 Those remarks do not accurately summarize the evidence. GDD's evidence was that on the occasion LAC simply asked for sex after "flashing" herself. Insofar as the matter was explored, it was not suggested that she was seeking to satisfy an attraction to GDD but to learn how to do "certain sexual things."
40 Further, the appellants contended that the remarks above quoted amounted to a belittling or ridiculing of the defence case. This is precisely a matter recognized in Livermore as capable of leading to miscarriage. Following descriptions of the defence seeking to point to LAC as an "aggressor" the Crown Prosecutor turned to the issue of consent. She said:
"And whether you think she's the world's greatest actress or that she really, really was raped and she did not consent.
Not consenting is enough, but she honestly believes that there are going to be photos of her and her little sister distributed on the Net if she doesn't agree. It's enough that she believes if she doesn't consent that James is going to be bashed. If it's through threats and intimidation that she agreed to sex that would be enough for there being no consent. But in this case we say not only that, on top of those two matters, which we already know about from the two Megans and also the guy from Roselands Shopping Centre, on top of that we have physical force being used and a demand that sex occur."
41 The evidence about the threat to the boyfriend in detention and the distribution of embarrassing photographs was not admitted to provide evidence of lack of consent to the act of intercourse and related to demonstrating pressure by NJC for LAC to accompany her to the flat. To suggest that this evidence could be used by the jury in their determination of whether or not there was a lack of consent was impermissible.
42 His Honour's direction to the jury about this matter was correct when he said:
"In this matter there is a stark contrast between the Crown case and the case of each of the accused on the issue of consent. (LAC's) evidence is that at no time did she consent, not matter what coercion, threats or physical violence were directed at her and that at all relevant times she refused, physically resisted, pleaded for (GDD) to stop and sought her sister (NJC's) assistance to stop GDD, while crying. There is no suggestion in this matter that she was ever overborne by any threat about the bashing of James Keir or the publication of any photograph. (LAC's) evidence is that she never consented and was physically overcome by (GDD) after he and NJC had forcibly removed her clothes while she resisted."
43 Whilst what his Honour cannot be criticised as inaccurate there should have been explicit directions to the jury to negate the misleading statement by the Crown Prosecutor. As the extract from the address shows, there was in what she said, a reference in the final sentence to physical force and it became important to warn the jury against using what amounted to a submission of combined causes by the Crown where there was, on the issue of absence of consent, a need to isolate and exclude consideration of threats as touching upon that issue.
44 The conveyance of personal opinions by a prosecutor was another specific factor identified in Livermore as a potential trigger for miscarriage.
45 The transcript records this content of the Crown Prosecutor's address. I set it out as it appears recorded (subject to inserting initials for the name of NJC):
"You've got to remember mum is also mum of (NJC). You know this isn't a reason to lie over one daughter over the other. She's told the truth. Her daughter came home in tears. She went to bed. Seemed to make a huge deal of the fact she didn't have a shower till the morning. I don't know how you react after you get raped. I probably wouldn't (?) want to have a shower straight away but she said it was 11 o'clock, got home, she said to her mother 'they want to bash up James Kear.' That was said to her mother when she got home and she said she had something to eat. Well I'm sorry, teenagers get home late. What comes out of the mouth is excuses."
46 In fact, LAC's evidence was that she simply said to her mother when she came home, as has already been mentioned, that "they gave me something to eat." The gravamen of complaint is directed to the prosecutor's observation about showering. It would seem probable that the transcript is in error and it is likely that she said "I probably would want to have a shower."
47 Later, the Crown Prosecutor made another comment conveying her personal views when she said:
"Now it might just be me but I thought he came over as very smug, slightly arrogant and at times he smiled and laughed. Now he is saying this was consensual, we had sex all the time. If you've been accused of raping someone and it's a complete lie do you think he would be smug about it, a bit of a laugh, isn't this all a bit of - imagine being put in this situation."
48 There was no justification for the introduction by the Crown Prosecutor of her personal views about showering. Coincidentally it was an observation by a prosecutor about showering after an alleged rape which arose amongst other things in Livermore, see p 667. I do not accept the Crown submission that the statement about showering did not assist the Crown case. It was plainly an observation of a personal opinion of the prosecutor which, if accepted, would bolster the credibility of the complainant. It was an explanation for a fact in LAC's evidence which might have been the subject of criticism.
49 In relation to the second statement concerning the appearance of GDD, his Honour observed in an exchange with counsel that if the prosecutor's remarks had been couched in terms such as "you might think" there would not be a problem. I agree. However, nothing was said to the jury and the consequence of the injection of personal opinion rather than the making of submissions to the jury was that they were left with statements by counsel, one of which was supportive of the credibility of the complainant and the other which was disparaging of GDD. There was no authoritative warning by the judge that the jury should ignore what was said.
50 The above does not exhaust the catalogue of complaints made by the appellants.
51 The Crown Prosecutor invited the jury to consider LAC's demeanour and determine whether she had concocted the allegation. It was legitimate to invite the jury to consider the demeanour of any witness, including the complainant, and they were appropriately directed as to the onus of proof. I do not consider that the language of the submission trespassed beyond the limits of advocacy.
52 Reference was made to alleged discrepancy in the summation by the Crown Prosecutor of evidence concerning LAC's return to the flat on the day following the central events. LAC denied going there but her mother gave evidence of her presence. The point being canvassed was whether the mother's evidence showed return by LAC on two occasions and a distinction was sought to be drawn between the number of entries LAC was said to have made to the flat. I agree with the Crown submission that what is being debated is, in large part, a matter of semantics.
53 The Crown Prosecutor made some reference to the medical evidence of genital bruising, and "conceded" that what was found could occur during "normal sex" but she added "I would suggest it would have to be vigorous." His Honour expressly referred to what the Crown Prosecutor said about this and directed the jury to ignore her remark.
54 I do not consider that anything of significance turns upon the three matters last mentioned. The preceding matters, however, are of a different character. If any one of them was an isolated matter of complaint, I doubt that a conclusion of miscarriage would follow. Nevertheless, their combined effect leads me to a determination that it would be unsafe to allow these convictions to stand. The immediate complaints by counsel and their multiplicity, and the concessions of validity to a significant number of them, offers a strong implication that, in the atmosphere of the trial, a level of unfairness had been reached as a result of the prosecutor's address.
55 The intrusion into address of the Crown Prosecutor's personal views, was, to say the least, particularly unfortunate. It is true that in his introductory remarks his Honour told the jury that it was a tradition more than anything else which led to the prosecutor being referred to as Madam Crown in obvious distinction from the named defence counsel. Even though the jury were so informed, there must remain a risk that a jury would consider a Crown Prosecutor a figure of public authority and whose expressed personal opinions were therefore of particular weight and reliable. It is to avoid that risk that the law requires counsel to make submissions based upon the evidence and proscribes expressions of personal opinion.
56 The disparagement of the testimony of GDD by reference to the Crown Prosecutor's assessment of his demeanour was fraught with the risk of diverting the jury from its task when it is recognized that the version of events being advanced on behalf of the accused involved sexual turpitude which the jury may well have found repugnant and it was important that they be cautioned that, even if they so felt, if the version being advanced by the defence was possibly correct, the crime was not proved to have been committed. The Crown Prosecutor's personal assessment of the appearance of GDD as "smug" etc needed to be balanced by a firm caution that the prosecution case was not proved by rejection of GDD as a witness.
57 The consequence of my conclusion is that a new trial should be ordered.
58 Each of the appellants advanced a further ground asserting that the verdicts cannot be supported having regard to the evidence. Upholding such a ground would lead to direction of judgments of acquittal on the indictment.
59 To determine such a ground the appellate court is required to ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied of guilt: M v The Queen (1995) 181 CLR 487. Different language in subsequent cases does not detract from that fundamental. It is necessary to take into account a special respect and legitimacy to be accorded to fact finding by jurors: MFA v The Queen (2002) 213 CLR 606.
60 In this particular case there was no contest concerning the facts that GDD had sexual intercourse with LAC in the presence of NJC. Assuming satisfaction of those facts, two further issues required proof. First, that LAC did not consent to that intercourse and second, that both GDD and NJC knew that she was not consenting.
61 The proof of the firstmentioned involved acceptance to the requisite standard of the testimony on that issue by LAC. In that regard, whilst it is true that LAC gave evidence by videolink in a location remote from the courtroom, accompanied by a support person and in the further presence of a sheriff's officer, the advantage of the jury in seeing her testify was such that I could not conclude that they ought to have a doubt about her evidence on the critical issue.
62 The culpable knowledge of GDD and NJC needed to be drawn from an assessment of all of the evidence but, again critically, it would require acceptance of LAC's recounting of how the intercourse came to take place.
63 Each of the appellants has made submissions as to why the complainant's testimony should be not accepted but the challenges demonstrate no more than that there is a fact finding issue for determination. Giving full weight to the accumulation of all the points of argument, they fall short of demonstrating that it was not open to the jury to be satisfied of the essential ingredients of the count in the indictment.
64 No purpose would now be served by recitation of those arguments. I would not uphold this ground in either case.
65 NJC sought, in the alternative, to challenge the severity of sentence. In the light of my conclusion that the convictions should be quashed, it is unnecessary to address the question of sentence.
66 I would, in each appeal, allow the appeal, and order a new trial.