Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : HODDER -v- HYWELL [2008] WASC 61

Criminal law - Leave to appeal - Appeal from single judge - Whether reasonable prospects - Turns on own facts

Community Protection (Offender Reporting) Act 2004 (WA), s 63(1)

Criminal Appeals Act 2004 (WA), s 16(2)(a), s 27(2)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f)

1 MILLER JA: This is an appeal from a decision of McKechnie J refusing the appellant leave to appeal against convictions in respect of a number of charges of which he was convicted by Magistrate Edwards in the Magistrates Court. Those convictions were recorded on 28 December 2007 and the appellant was fined the sum of $3,000.

2 On 16 April 2008, McKechnie J refused leave to appeal against the convictions and adjourned the application for leave to appeal against sentence. That adjournment was made for a period of 28 days in order that the appellant might obtain and provide sentencing transcript for the magistrate's sentencing comments made on 28 December 2007.

3 On 20 May 2008, McKechnie J dealt with the application for leave to appeal against sentence and granted leave to appeal limited to that aspect of the ground of appeal against sentence which read 'the Magistrate did not allow for time in custody'.

4 This leaves four effective grounds of appeal against conviction. The grounds appear to relate to all convictions. They are stated in the appellant's case in the following terms:

1. Magistrate Edwards refused defendant [sic defendant] James Leslie Hodder and [sic] adjournment when witness Lisa White was unavailable to give evidence at trial date.
2. The Magistrate failed to exclude evidence obtained unlawfully and without consent of police video interview of [defendant].
3. [Defendant] refused legal rights to question police in regards Child Protection Act.
4. Police evidence was unsafe and unsatisfactory and the Magistrate arrived at a decision without proper evidence to support it. The evidence was unfounded hearsay and unsupported by the facts.

When sentenced in 2005 no court order to report to police when released from prison.

6 This ground makes no sense. There are no submissions in relation to it. I consider that it should be struck out. It has no reasonable prospect of succeeding: Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(f).

7 The appellant's right of appeal to the Court of Appeal is to appeal from a decision made in the appeal by a single judge that refuses leave to appeal (Criminal Appeals Act 2004 (WA) s 16(2)(a)). The appellant's grounds of appeal do not challenge the reasons of McKechnie J for refusing leave to appeal. Those reasons concluded that on the four grounds of appeal which were then before his Honour there were no reasonable prospects of success: Criminal Appeals Act s 27(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

8 The four grounds which were relied upon before McKechnie J were listed by his Honour as follows:

Ground 1: The magistrate failed to exclude evidence obtained involuntarily

Ground 2: The magistrate unfairly denied the defendant his rights to questioning witnesses

Ground 3: The magistrate did not allow enough time for closing submissions

Ground 4: The main witness to three of the charges did not give evidence

9 It appears that only one of the grounds of appeal against the decision of McKechnie J relates to his Honour's decision. That is ground 2 which contends that the magistrate failed to exclude evidence obtained unlawfully and without consent of police (video interview of defendant).

10 In my opinion, the appellant's grounds of appeal are defective in that they fail to challenge any aspect of the decision of McKechnie J.

11 However, as the appellant is in person, I will deal with the grounds of appeal which have been advanced to this court.

12 The transcript of proceedings before the magistrate reveals that on 27 September 2007 the appellant sought an adjournment because he thought there were only three charges before the court when there were in fact four. The magistrate refused the adjournment on the basis that the appellant had previously pleaded to all four charges. The reference to 'four charges' appears to be a reference to charges under the Community Protection (Offender Reporting) Act 2004 (WA) (the Act), but as I will point out, there were in fact a total of six charges.

13 At the close of the prosecution case on 28 September 2007, the magistrate addressed the appellant, indicating that he then had an opportunity to give evidence if he wished to do so. The appellant again sought an adjournment. He said:

Before you do, I know you're not going to allow it, but I'm going to make another application for an adjournment. The simple fact is the sergeant has been very shrewd, trying to get the case over with quick. There's two witnesses who are very important to my case, Rendell and Antonio, and they weren't called and they were here today outside. If I'd have known they weren't coming in, I'd have subpoenaed them to come in here. Ms Rendell was the receptionist down at the police station, who saw me come in there on two occasions, and I believe she's very important to my case.

14 The magistrate then advised the appellant that he had every opportunity to issue a witness summons for the attendance of witnesses and it was not up to the prosecutor to call every witness, but only those whom the prosecutor thought relevant to prove his case.

15 The magistrate then asked the appellant whether he intended to give evidence and he said he did not. He said 'If I can't use the other witnesses, it's a waste of time'. The magistrate then asked the appellant which witnesses he wanted to give evidence. The following exchange occurred:

HER HONOUR: All right. First of all, tell me which witnesses did you want to give evidence?

HODDER, MR: Well, one was the legal aid lawyer at the time, Lisa - - -

HER HONOUR: My understanding is that if Ms White prepared a statement or an affidavit - - -

HODDER, MR: Yes, and I've got it somewhere. I don't really agree with an affidavit.

HER HONOUR: - - - then the prosecution don't object to that document being tendered in evidence. So if you have an affidavit or a statement from Ms White, you can tender that as an exhibit and I will accept it.

HODDER, MR: I don't know where it is. Here's her affidavit. That - sorry.

HER HONOUR: Just a moment. Mr Hodder, you have handed up to the court an original letter and a copy letter. The original is from Ms White, addressed to you, enclosing a copy of a letter she says she has forwarded to Midland Court, and the copy letter is dated 13 September 2007, addressed to the registrar at Midland Court, under the hand of Ms White. So you wish that to be tendered as an exhibit in the hearing? All right. That will be exhibit 16. I will return the letter addressed to you, Mr Hodder, and the copy letter dated 13 September 2007 from Ms White to the court will be exhibit 16.

EXHIBIT 16 Defendant DATE 13/9/07

Copy of letter from Ms White to Midland Court

16 The appellant then informed the magistrate that he wished to call a Ms Rendell, a police station receptionist. The following exchange occurred in relation to this witness:

HER HONOUR: All right. The other witnesses, Mr Hodder, that you wish to call?

HODDER, MR: Ms Rendell, who's the - - -

HER HONOUR: Sorry, what was the name?

HODDER, MR: Rendell.

HER HONOUR: Rendell?

HODDER, MR: She's the receptionist at the police station.

HER HONOUR: What were you hoping Ms Rendell would be able to tell the court?

HODDER, MR: Well, be able to tell the court that I went down there on the two occasions and she knew that I went down there, because I've even got - it's even in this document here that I got the message. So it would be very important to my case.

17 The magistrate then asked the appellant whether he was saying that on 12 October Ms Rendell was at the station when he attended. He said she was.

18 The prosecutor refuted this assertion, saying that he had a statement from Ms Rendell, a copy of which had been given to the appellant. The prosecutor contended that what the appellant was saying was not confirmed by the statement.

19 The prosecutor, however, accepted that the appellant had reported at the police station on 12 October and said that Ms Rendell was unable to give any evidence in relation to reporting on 28 September. There was then no further request by the appellant to call Ms Rendell.

20 The magistrate then asked the appellant who else he wished to call. He said he wanted to call an 'Antonio'. Apparently, police officer Antonio had given evidence on video and the appellant wanted to cross-examine him. The magistrate then asked him what sort of questions he wished to put to Officer Antonio. The following exchange occurred:

HODDER, MR: Because Antonio was the one I spoke to, have gone to, and I was told the day I went there he was on leave and just a few questions around those lines.

HER HONOUR: So what date are you saying you went there and were told he was on leave?

HODDER, MR: The one I was supposed to see him, the one here. I'm not quite sure. The 28th, was it?

HER HONOUR: 28 September?

HODDER, MR: I think it is, yes. Got that many papers here.

HER HONOUR: Is it 28 September, Mr Hodder?

HODDER, MR: Sorry, your Honour. I'm trying to find it. I just had it out, when I asked a question to - Antonio states - - -

HER HONOUR: Yes, exhibit 10, which is the notice dated 22 September, required you to report to Detective Senior Constable Antonio on 28 September.

HODDER, MR: Yes.

HER HONOUR: So you're saying that you did attend on 28 September - - -

HODDER, MR: Yes.

HER HONOUR: - - - and you were told that Officer Antonio was on leave?

HODDER, MR: Leave.

HER HONOUR: So the purpose of you calling Officer Antonio is what?

HODDER, MR: Ask him questions in regarding that matter.

HER HONOUR: What sort of questions.

HODDER, MR: Where he was on that particular day, because Ms Rendell said he wasn't there at the time I was in there and asked.

21 The upshot of it all appears to be that the appellant's contention was that he had telephoned the Midland police station, had spoken to Ms Rendell and had been told that none of the police officers to whom he was required to report were there.

22 In the circumstances, the magistrate indicated that she would not permit Officer Antonio to be called. She said:

Mr Hodder, I'm going to permit Ms Rendell to give evidence and the sergeant has said she's at the station and she can be brought over to give evidence, but in relation to Officer Antonio, I'm not prepared to grant you an adjournment to enable him to testify. So perhaps if Ms Rendell can be fetched from the station and then she can give evidence on your behalf, Mr Hodder.

23 The prosecutor then advised that rather than call Ms Rendell, he would accept that the appellant had gone to the Midland police station on 12 October. A further exchange occurred as follows:

HER HONOUR: Mr Hodder, the prosecution are accepting that you went to Midland police station on 12 October. So is there any other purpose for you to call Ms Rendell to give evidence?

HODDER, MR: I reckon Ms Rendell should be here, because it classifies the fact that there was no person at the station who I could - and the sergeant said before that I have to contact anyone, but only people's name on there were people on the detectives' office in Midland and I believe she's entitled to turn up and give evidence (sic).

HER HONOUR: It's not her entitlement.

HODDER, MR: I mean, for me, for my - everyone's entitled to a fair trial.

HER HONOUR: All right; perhaps if Ms Rendell can be asked to come over.

PROSECUTOR: Yes, your Honour. I will need to just over and locate her; if we have a short adjournment.

HER HONOUR: Yes, all right. I take it, Mr Hodder, that you are exercising your choice not to give evidence in your defence. Is that the situation?

HODDER, MR: Yes, because I'm allowed to summarise, aren't I?

HER HONOUR: Pardon?

HODDER, MR: I'll be able to summarise or whatever.

HER HONOUR: Yes, you can make submissions to me at close of the evidence.

HODDER, MR: Yes, I can't see any sense - - -

HER HONOUR: You don't wish to do so? Thank you. We will adjourn until Ms Rendell is available.

24 Ms Rendell was then called to give evidence and there can be no objection about that.

25 The ground of appeal refers only to the witness Lisa White. However, Ms White's letter dated 13 September 2007 addressed to the registrar at the Midland Court was tendered in evidence and it does not appear that the appellant required her attendance. I can see no indication of any miscarriage of justice occasioned by the fact that Ms White's letter was tendered without her being present. To the contrary, the matter seems to have been resolved in favour of the appellant.

26 In my opinion, ground 1 of the grounds of appeal therefore has no prospects of success.

27 By this ground, the appellant contends that the magistrate failed to exclude evidence obtained unlawfully and without the consent of police. This was a video record of interview of the appellant.

28 In Hodder v Hywell [2008] WASC 61, McKechnie J dealt with the same point. His Honour said:

During the course of the trial, the magistrate allowed evidence of two video records of interview to be tendered in evidence and in respect of the first, she found that it was in fact voluntary notwithstanding some earlier protestations. The appellant subsequently answered questions.

That question of fact was open to her. More importantly, however, the video records of interview were not tendered or accepted into evidence by her or used by her as evidence of admissions as to what was contained in them but as evidence, somewhat unusually, as to what the police had told the appellant, so they were evidence, visual evidence, of what the appellant had been told. On that basis they were clearly admissible and the question whether they were voluntary or not did not really arise in view of the limited use to which they were put. [4] - [5]

29 Detective Senior Constable David Robert Milford gave evidence on 27 September 2007 of a video record of interview on 5 July 2006 in which the appellant was questioned. This was objected to by the appellant who said:

I object, your Honour, because these interviews that were taken, they were against my asking. I refused video interviews and they continued to take them. I don't believe legally they should have been allowed to take video interviews.

All right. Well, Mr Hodder, I will allow it to be played. I will see what the situation is then as to the conversation that you had with the officer and if you wish to renew your application that that video ought not to be received as an exhibit, then I will consider that submission at that time, but I will need to see the video to be able to determine whether or not it ought to be tendered as an exhibit. Thank you. Take a seat.

31 At the conclusion of the playing of this video, the magistrate asked the appellant whether he wanted to continue with his application that it should not be received as an exhibit. He said:

Yeah, because I didn't agree to any of them. I didn't sign any paper to agree to any interview and I'm entitled to my rights and even though the interview didn't contradict me, but I don't believe any of the interview, because you should be agreeing to them and to sign a piece of paper saying you agree to interview and I didn't agree to any interview and especially when I've already been charged and arrested over offences. I don't believe they had the right and when I asked for a lawyer, I still didn't get a lawyer. I believe that video should not be shown or entered into it.

32 The magistrate asked the prosecuting sergeant for submissions and the sergeant said that the sole purpose of putting the video before the court was to show that the requirement of reporting had been properly explained in depth to the appellant. There was no question of the prosecution relying upon any admissions or confessional evidence of the appellant.

33 The magistrate then ruled on the matter, saying:

HER HONOUR: There are two issues that I need to address with regard to the interview; firstly as to whether or not Mr Hodder voluntarily participated in the interview. A caution was given at the beginning of the interview. Mr Hodder chose not to in his own words tell the officers what he understood the caution to mean. However, after being asked, 'Do you understand the caution,' he said 'I won't say anything.' Then it was put to him, 'You understand that you don't have to say anything?' His answer to that was, 'Yes.' Then it later was put to him, 'You don't have to say anything if you don't want to,' and Mr Hodder said, 'Do what you want. This is ridiculous,' and some other comments.

There was then extensive discussion between the officers and the accused as to provisions of the act. The officers considered what were Mr Hodder's obligations under the act. Mr Hodder spoke to the officers about his reporting. He said he reported on 29 March and there was discussion about Senior Constable Taylor and so on. In my view, the fact that Mr Hodder continued to talk to the officers and put his point of view, as well as his understanding of the provisions of the relevant legislation, indicated to me that he in fact voluntarily participated in the conversation with the officers. I am also satisfied that he understood that he didn't have to say anything if he didn't wish to do so. He nevertheless chose to engage in conversation with the officers. So in my view, Mr Hodder did voluntarily participate in the interview with the officers.

The next issue is whether or not the interview itself is relevant to the matters in issue before the court today. The video is not being tendered on the basis of admissions or otherwise in relation to non-reporting concerning the date referred to in the interview, that is 29 March. There is no charge relating to that matter. The purpose of tendering the video, as far as the prosecution is concerned, is to demonstrate to the court that Mr Hodder was - it was explained to him what his obligations were under the act and under the notice that was given to him; so that in support of the evidence of Mr Milford, that he explained in detail to Mr Hodder what his obligations were in relation to the requirement for reporting.

So the video is not tendered as evidence in support of an allegation of the commission of an offence, but in support of the evidence of the witness that Mr Hodder was - it was read out to him, provisions of the act and what his obligations were and explaining to him what his misunderstandings may have been as far as his reporting obligations were concerned. To that extent, in my view, the interview is of relevance, so I first of all find that Mr Hodder did voluntarily participate and, secondly, I consider that the video itself is of relevance, if only in relation to the explanations to Mr Hodder of his obligations under the act. So it can be tendered as an exhibit and I think it will be exhibit 8. I'm not sure, 7 or 8; 7, exhibit 7.

EXHIBIT 7 Police DATE 5/7/06

Video record of interview

There were other videos played during the hearing, but none was objected to.

34 Sergeant Neil Windsor Barry gave evidence that on 31 October 2006 he was travelling as a passenger on a train when he saw the appellant enter the carriage. He approached him and asked who he was. The appellant identified himself. Sergeant Barry then told the appellant he was under arrest for not reporting under the Australian Child Offender Register (ANCOR). He gave evidence that the appellant then told him 'to fuck off'. Sergeant Barry then observed Detective Sergeant Tucker in the train. He asked him to assist.

35 At the next train station the appellant tried to get out of the train, but he was restrained by the police officers. There was an incident in which the appellant fell on the Bayswater train station platform. He was restrained and told to calm down. He was told he was under arrest. Detective Senior Constable Scamp then arrived at the scene and the appellant was conveyed to another location. Sergeant Barry had no further involvement with him.

36 The appellant cross-examined Sergeant Barry and asked him whether he had video surveillance of the Bayswater train station incident. This was produced and played to the court. There appears to be no challenge to that.

37 Mr Kerry Hywel Scamp, acting principal investigator with the Department of Education and Training, and a former detective senior constable with the West Australian Police, testified that on 12 July 2006 he located the appellant close to the Midland train station, arrested him and took him to Midland police station. There, a video record of interview was conducted. This video record of interview was tendered as exhibit 9 in the proceedings and there was no objection to the tender.

38 Mr Scamp also gave evidence that on the morning of 31 October 2006 he gave instructions for the appellant to be arrested at the Bayswater train station. He went there and located him. He took him back to the ANCOR office who conducted a videotaped record of interview with him. This record of interview was played and tendered as exhibit 11. There was no objection to its tender.

39 Mr Scamp also gave evidence that on 10 November 2006 he attended at 39 Victoria Street, Midland where he had a brief conversation with the appellant. He told him he was under arrest for breaching reporting obligations. The appellant told him to 'fuck off'. Mr Scamp told him to wait and walk to the hallway. When he returned, the appellant was not there. He was later located in a nearby street. He was arrested, taken to the office and another videotaped record of interview was conducted. This was tendered as exhibit 13 and there was no objection to the tender.

40 It seems, therefore, that the only video record of interview objected to was the first. In relation to that, I respectfully agree with McKechnie J's analysis that because the video record of interview was used only as evidence of what was said to the appellant, there is no substance in the objection made to it. Ground 2 has no prospects of success.

41 This ground contends that the appellant was refused his 'legal rights' to question police in relation to the 'Child Protection Act'. It is not a ground of appeal that was advanced before McKechnie J. It is not an appeal from the decision of McKechnie J. It seeks to raise a new matter.

42 It appears that when the appellant cross-examined Mr Martin James Clancy-Lowe, state coordinator of the Western Australian Police ANCOR unit (the unit which coordinates the Western Australian police management of the Act), he sought to question him about the meaning of certain provisions of the Act. The magistrate said:

HER HONOUR: Mr Hodder, stop, please. I have allowed you to ask the questions you have asked, but they are legal questions - - -

HODDER, MR: These are legal.

HER HONOUR: Just a moment; which this witness is not qualified to answer, because he is not a lawyer and he is not here to give evidence as to the provisions of the act and the meaning of those provisions. He is here to give evidence as to his position as a member of the unit - - -

HODDER, MR: I understand that.

HER HONOUR: - - - and to produce the certificates that he has produced.

HODDER, MR: I understand that.

HER HONOUR: So if you have got legal issues with the act and how it applies to you, you can make submissions to me at a later time in relation to that, but to ask this witness questions as to the meaning of provisions of the act and his understanding of them, that is not appropriate, to ask that.

43 The decision of the magistrate was quite correct. It was not open to the appellant to ask witnesses for their interpretation of provisions of the legislation.

45 This ground contends that there was no evidence to support the magistrate's decision and it was based on unfounded hearsay. It is not a ground of appeal which was argued before McKechnie J.

46 The magistrate gave written reasons for decision on 28 December 2007. Those reasons reveal that the appellant was charged with four offences under the Act, one offence of obstructing a police officer under s 172(2) of the Criminal Code (WA) and one of escaping lawful custody contrary to s 146 of the Code.

47 The four offences under the Act each alleged a failure to report pursuant to the provisions of s 63(1) of the Act.

48 The magistrate's reasons reveal that the appellant was found guilty of indecent dealing in the District Court at Perth and sentenced on 17 June 2005 to 16 months' imprisonment. By reason of that conviction, on 20 March 2006, he was registered as a 'reportable offender' under the Act. The effect of this was to require him to report to certain police officers on certain dates. The prosecution case against the appellant was that he failed to report on four dates alleged in each of four prosecution notices.

49 Charge 10295/06 was a charge of obstructing a public officer under s 172(2) of the Criminal Code. The charge related to the incident on the train to which I have already made reference. The police officers gave evidence that they had arrested the appellant. The magistrate concluded that she was satisfied beyond reasonable doubt that Officer Barry exercised a lawful power of arrest and was carrying out a function of his office when he sought to arrest the appellant. She concluded on all the evidence that the police officers used such force as was reasonably necessary to effect the arrest of the appellant and prevent him from escaping. She considered that the offence had been proven beyond reasonable doubt.

50 The appellant gave no evidence on the matter and in the circumstances it was open to the magistrate to reach the conclusion she did.

51 Charge 10314/06 was a charge of escaping from lawful custody contrary to s 146 of the Code. The charge related to the incident at Victoria Street, Midland, when Officers Squires and Scamp went to the house to arrest the appellant. This was the occasion upon which the appellant said 'fuck off' and disappeared. As he had been advised that he was under arrest for breaching reporting conditions, it is clear from the evidence that he escaped legal custody. The appellant gave no evidence about the matter, but in a video record of interview said that he was 'sick and tired of being harassed', which the magistrate took to be a clear acknowledgment that he knew that Officer Scamp was a police officer and that he was being told that he was under arrest and why.

52 In my view, the evidence clearly establishes the case which was put by the prosecution. The magistrate was entitled to conclude that the offence had been proven beyond reasonable doubt.

53 The charges of failure to report contained common issues. They were reviewed in detail by the magistrate who concluded that on all the evidence the appellant had not reported in accordance with his obligations. Each charge was dealt with and the evidence was reviewed in detail. It was not hearsay evidence.

54 Charge 8579/06 was a charge of failing to report as required on 10 July 2006. The appellant said in a video record of interview that on 11 July 2006 when he was obliged to report he was sick and that was why he did not report. He also said that on 10 July 2006 his mother had been telephoned by somebody at the Midland police station and told that he did not need to attend on 11 July 2006. He could not recall where he may have been on the appointed reporting day. The magistrate concluded that there was no evidence of any circumstances such as to constitute a reasonable excuse for not reporting and she found the offence charged. Clearly, this was correct.

55 Charge 9032/06 was a charge of failing to report as required on 28 September 2006. Officer Scamp testified that the appellant failed to report to him on that day and his enquiries revealed that the appellant had not reported to anybody else. The only evidence led by the appellant was from Ms Rendell who was unable to say whether she was at work on 28 September. The magistrate held that she was satisfied beyond reasonable doubt that the appellant was required to report to Midland police station on 28 September 2006 to one of the officers named in the notice he had received, but he failed to attend. There was no evidence that he had any reasonable excuse for non-compliance. She found the offence proven. That seems to have been an inevitable conclusion.

56 Charge 10294/06 related to a failure to report on 12 October 2006. In a video record of interview, the appellant said that he had gone to the Midland police station on 12 October 2006 and asked to see Officer Antonio. He was told that he was not there but was on holidays and there was no one else he could see.

57 Ms Rendell gave evidence that the appellant did attend at the Midland police station on 12 October at about 11.05 am. He had a document in his hand which had ANCOR on it. She asked the appellant if there was anyone else he could see and the appellant said there was not.

58 The magistrate found that the notice clearly set out to whom, where and on what date and at what time the appellant was required to report and that he understood his obligations in that respect. She was satisfied beyond reasonable doubt that he knew he was required to attend between 1.00 pm and 2.00 pm on 12 October 2006, but chose to attend at an earlier time when Officer Antonio was unavailable. She found the offence proven. On the evidence, it appears to have been the correct decision.

59 Charge 10313/06 related to a failure to report on 31 October 2006. That charge was amended to substitute the date of 9 November 2006 for 31 October 2006. The magistrate considered there would be no prejudice to the appellant by the amendment. He has not presently complained that there was.

60 The magistrate found that the appellant had clear notice of his obligation to report at a particular date, time, and location and to a particular person (Officer Scamp) on 9 November 2006, but he failed to do so. There was no denial by the appellant that he had failed to report. The magistrate was thus satisfied beyond reasonable doubt that he did not comply with his obligations to report.

61 The appellant did say in a video record of interview that on 9 November he had an appointment with Legal Aid and he thought it was more important that he go to that appointment than report. The magistrate found that there was no reasonable excuse for the appellant failing to report. That decision appears to be in accordance with the evidence.

62 On each of the charges there was ample evidence before the magistrate to enable her to be satisfied beyond reasonable doubt that the offence charged was proven beyond reasonable doubt.

63 There is therefore no substance in ground 4 of the grounds of appeal. The ground has no reasonable prospects of success.

64 A number of the grounds of appeal advanced by the appellant have no relevance to the decision of McKechnie J from which he seeks leave to appeal. Nevertheless, I have dealt with all the grounds.

65 I can find no basis upon which there is any reasonable prospect of success of any of the grounds of appeal advanced by the appellant in his appeal against conviction.

66 McKechnie J has already given limited leave to appeal against sentence.

67 I would therefore dismiss the appeal from the refusal of McKechnie J to grant leave to appeal against the convictions of the appellant.