Jeffrey Wayne DAVIE v R

Court of Criminal Appeal (NSW)|2007-12-10|Before: Grove J, Simpson J, Barr J

CITATION: Jeffrey Wayne DAVIE v R [2008] NSWCCA 2

JUDGMENT OF: Grove J at 1; Simpson J at 2; Barr J at 3

CATCHWORDS: CRIMINAL LAW - appeal against conviction - objections not taken at trial - evidence of complaint - miscarriage of justice - DNA evidence - jury making a finding of guilt on one or more counts in the indictment when considering any other count in the indictment

R v Abusafiah (1991) 24 NSWLR 531 Papakosmas v The Queen (1999) 196 CLR 297 CASES CITED : Domican v The Queen (1992) 173 CLR 555 R v TJF [2001] NSWCCA 127 R v GK (2001) 125 A Crim R 351 R v Markulevski (2001) 52 NSWLR 82

PARTIES: Jeffrey Wayne Davie Regina

COUNSEL: H Dhanji (Appellant) D Woodburne (Crown)

SOLICITORS: Burke and Elphick Lawyers (Appellant) Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2006/5106

GROVE J SIMPSON J BARR J

29 JANUARY 2008 JEFFREY WAYNE DAVIE v REGINA Judgment 1 GROVE J: I agree with Barr J. 2 SIMPSON J: I agree with Barr J. 3 BARR J: This is an appeal against convictions entered in the District Court after a trial by jury. The appellant, Jeffrey Wayne Davie, was convicted of three offences. The first was constituted by an act of fellatio on a boy under the age of ten years, namely of nine years of age. The second was an indecent assault on the same boy, constituted by pushing back the boy's foreskin. The third was constituted by an act of indecency, namely exposing his penis to the same boy. 4 On 25 May 2005 the complainant went with his mother to premises in a Newcastle suburb to watch a game of football on television. The premises comprised a common room where everybody gathered and where the television set was. A door led off that room into the men's toilets, where there was a change room, a shower and lockers. A further door led through to a urinal. The complainant left the company of his mother and went through and used the urinal. While he was in there he spoke to a man he had encountered earlier in the evening and they talked about having a game of pool. As the complainant made to leave the urinal the appellant, who was not the man the complainant had just spoken to, whispered to him, telling him to go with him because he wanted to tell him a secret. He had spoken to the complainant earlier in the evening. He told the complainant that there was another way to play pool, took him by the arm and led him into a cubicle. The man spoke to him about trying to get "white pee" out of his "rude part" and about cleaning his "rude part" when he had a bath. The man pulled down the complainant's pants, took hold of his penis and pulled back his foreskin. That was the substance of the second count. The man sucked, as the complainant put it, his "dick". That was the substance of the first count. The complainant heard his mother calling to him and the man stopped. He pulled up the complainant's pants, then showed him his penis. He told the complaint to keep it a secret. 5 The complainant left the room and went to his mother. They were ready to leave and she told him to say his goodbyes. The appellant left the urinal shortly after the complainant and exchanged a word with the complainant's mother as he came out. The complainant and his mother left the building and went to their car. As they did so the complainant's mother asked him why he had a funny look on his face. He said that it was a secret. When they were in the car he said to his mother that the man she had spoken to had sucked his penis. The complainant's mother stopped the car and they returned to the building. As they did so the complainant vomited. The complainant's mother spoke to a number of people and the police were called. She spoke to the appellant, who said that he had been alone in the toilet with the boy but that nothing had happened. 6 The complainant gave a detailed description of what the man had done to him. First he told his mother, then persons called Howard and Carr. The complainant identified the appellant from twenty photographs shown to him. Police sent the complainant's underpants for analysis and a substance was identified as likely to be saliva. It yielded DNA to which there had been two major contributors. The appellant's DNA profile matched that of the second major contributor. That profile is expected to occur in fewer then one in ten billion individuals in the general population. 7 Evidence was adduced that the appellant had a sexual attraction to and predilection for prepubescent and young boys and a willingness to act out his sexual fantasies with them. Evidence was adduced consisting of admissions made by him in 1992 concerning a number of sexual acts committed against ten boys aged between six and fifteen years and which included fellatio, fondling of genitals, an occasion when he had pushed back a boy's foreskin, occasions when he had asked boys to expose themselves to him and occasions on which he had exposed himself to them. 8 This appeal is advanced on three grounds. Each starkly raises the need for a grant of leave so as to argue an objection not taken at trial. In R v Abusafiah (1991) 24 NSWLR 531 Hunt CJ at CL said at 536 - The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error ( R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. See also the remarks of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at 301. 9 The first ground of appeal asserts that a miscarriage of justice was occasioned by the trial judge's directions about evidence of complaint. Three witnesses gave evidence of complaint. The complainant's mother said this - Q Did you say anything to (the complainant) after you'd signed out? A When we were - while I was signing out, I said "(the complainant) what's the funny look on your face?" Q What did he say? A He says, "Oh", he says "I'll tell you outside". I went "Okay". Q What did you do then? A We walked back through the back area, back through the storage area, out through the back door, down the ramp, got in the car, I started the car up and I turned around to (the complainant) and I said "Okay, so what were you going to tell me?" Q What did he say? A He said "Oh it's a secret. The man in the toilet wanted to show me how to play a game of piss pool". HIS HONOUR: Q Play a game of? A Piss pool. CROWN PROSECUTOR: Q How did he say that? Can you describe his tone of voice? A It was like he was telling, yeah, he was telling a secret. That was the type of voice. I shouldn't be telling you, but I'm telling you. Q After he said that to you, what did you say to him? A I said "What?" Q And did (the complainant) reply to you? A And he said, "A game of piss pool", and I said "What do you mean by that?" He said "The man reached into my pants, pulled out my rude parts, cleaned it and then put it in his mouth", and I turned around and I said "Are you serious?" I said "Did that really happen", and he said "Yes it did." So I said "Well", I said, "we've got to go back in there and report this". He said "No, I don't want to go back in there, he's going to kill me". I asked him who it was, he said that he couldn't remember his name, so I asked him if it was the man that came out of the toilets after him and was talking to me, and he said "Yes". 10 Mr Howard told the jury that the complainant said - I could feel his tongue but I couldn't feel his teeth. 11 Mr Carr gave this evidence - Q Now a few minutes after that, did Mr Howard come into the rec room and beckon to speak to you? A Yes, he stood at the door. Q And did you and Mr Howard then go towards, after he spoke to you, Mr Howard's office? A Yes, back up the entire length of the hallway. Q Did you go into the office where you saw (the complainant) and his mother? A Yes. Q Did you speak to (the complainant) yourself? A I did. Q Can you tell me what you said to (the complainant) sir? A Well he obviously looked a little upset and I said to (the complainant) "Can you tell me what happened". Q Can you tell me what he said to you sir? A He said "Jeff sucked my rude bit and he wanted to play a game of piss pool with me", which, that's what I though he said anyway. Q Did you say anything to (the complainant) at that point? A Yes, I said, "Were you the only one in the toilet?", and he said, "When I was going in there was a big man coming out as I was going in", and I said, "Was there anybody else in the toilet?", he said, "No". Q Did you say anything else to him Mr Carr? A Yes. I said, "What did you do in there, did you do a wee, did you go in to do a wee or did you go into the little room?'. He said, "I did a wee". And I said to him - no he said, "When I'd finished I put my hand on the door to open it, it was being pushed from the other side at the same time". Q And did you say anything to him then sir? A I said, "What happened then?", and he said "Jeff licked my rude bit, I didn't feel his teeth, I only felt his tongue and then he cleaned it and put his hand down the front of his pants". Q Did you say anything further to him? A Not that I can recall at the moment, no. Q Did you speak to him about time? A Oh yes. I said to (the complainant), "How long did Jeff suck your rude bit for?", and he looked at me a little bit puzzled, and I said "Well if I count, you tell me when to stop", and I was going, "One , two, three, four", and he butted in and said, "About 20". 12 During the summing-up his Honour said this about evidence of complaint - That evidence is what lawyers call complaint evidence, members of the jury. It is led by the Crown for a number of purposes. The Crown says that very soon after these events are alleged to have occurred the complainant, … , told his mother about them; that is to say, made a complaint about what had happened. The Crown says that those actions on the part of (the complainant) are entirely consistent with what someone would do if they had been sexually assaulted in the way in which (the complainant) says he was. The Crown says that you are entitled, and indeed you are if you accept that evidence, to treat his complaint to his mother, if you like, or his telling his mother about what he said happened as actions consistent with someone who has been sexually assaulted. If you accept the evidence, you are entitled also to take it into account on the issue of the guilt of the accused. But what importance you attach to it is entirely a matter for you. It is not independent evidence in the sense that it comes from a source independent to that of the complainant, because it really comes from the mouth of the complainant. And Mr Winch (defence counsel) would say to you it would not matter how many times you told someone about what happened or how many people you told, if it was not true in the first place it does not become true just because you tell people. In other words, if you make an allegation that is not true, it does not matter how many people you tell, it does not cease to be untrue. But, members of the jury, as I say, if you accept the evidence you are entitled to use it in the way in which the Crown urges you to, namely to find that it was actions on the part of (the complainant) that were consistent with him being assaulted in the way in which he said he was. … The evidence given as to complaint by (the complainant's mother) and Mr Howard and Mr Carr is hearsay evidence. As such, it may be unreliable. Things tend to get lost a bit in the translation sometimes. The Crown would say to you you would expect when people have to remember things that happened some time ago that there may be discrepancies in their evidence. The Crown would say that they are not important, that you would find that these complaints were made and were consistent with the assault described by (the complainant). Mr Winch would say they are important. They are discrepancies and any discrepancy in the Crown case is another chip off the case put forward by the Crown, and they are matters that are important to consider.

13 It was submitted on appeal that it was necessary for the trial judge to warn the jury about the possible unreliability of complaint evidence. Having determined that a warning was appropriate, it was necessary that his Honour give a proper warning. In both the passages referred to, the warning was given by reference to the argument of defence counsel. That, it was submitted, was not sufficient. Any warning had to carry the authority of the trial judge: Domican v The Queen (1992) 173 CLR 555. Moreover, the warning given in the passage secondly extracted failed to identify what it was about hearsay evidence that might cause it to be unreliable. Reference was made to R v TJF [2001] NSWCCA 127, in which Studdert J observed that hearsay evidence may be unreliable for a number of reasons, including the potential compounding of weakness of perception, memory and narration skills, that the circumstances in which the statement is made out of court might permit the application of pressure which might produce a false account, and that the out of court statement is not made on oath. It was submitted that those considerations applied in the present case and should have been the subject of a warning under s165 Evidence Act unless there were good reasons not to do so. 14 It was submitted that his Honour's reference to the first of these features was made "in terms that allowed the potential unreliability to be used as a basis to dismiss any inconsistencies in the complaint". So potential unreliability, it was submitted, was put before the jury as a matter which added to the reliability of evidence of complaint, at least in the sense that it supported the complainant. It was further submitted that no warning was given about either of the other two aspects of hearsay evidence. So a miscarriage of justice resulted. 15 In my opinion the evidence of complaint was quite extraordinary. It was made immediately after the complainant left the presence of the appellant and the detail of it, relaid successively to the complainant's mother, Mr Howard and Mr Carr, bore a striking consistency. It was not the kind of evidence that gives rise to the difficulties adverted to in R v TJF, and in my opinion that case gives the appellant no assistance. 16 It is necessary to understand the way in which the appellant conducted his case before the jury. Defence counsel, a person of long experience in the conduct of criminal trials by jury, saw, heard and no doubt assessed the complainant. Counsel did not suggest that the complainant had not been assaulted. The suggestion was rather that the complainant had identified the wrong person. That was presumably why his Honour told the jury that defence "would" say that the repetition of an untrue complaint would not make it true. In fact in his closing address defence counsel said nothing to the jury about evidence of complaint. In my opinion that explains why counsel did not ask his Honour to give the directions said on appeal to have been essential. 17 I would refuse leave to appeal on this ground.

18 The second ground of appeal asserts that a miscarriage of justice resulted from the directions on DNA evidence. Evidence was given by Ms Sharon Neville, a scientist from the New South Wales Department of Analytical Laboratories, about the testing of samples. Ms Neville received reference samples taken from the appellant and the complainant and a number of test samples, one of which was a portion of material removed from the inside front of the complainant's underpants. (Evidence was adduced elsewhere that the underpants were the ones worn by the complainant during the events giving rise to the charges). Ms Neville extracted DNA from all three samples and typed it. The test sample from the complainant's underpants yielded full DNA profiles of two major contributors. Unsurprisingly the complainant could not be eliminated. Neither could the appellant. By a process of deduction, Ms Neville removed the profile of the complainant from the combined profile. The result was a full DNA profile which matched that of the DNA extracted from the appellant's reference sample. Ms Neville said this about that profile - …in this case we would expect that particular profile recovered from the underpants to be found in fewer than one in ten billion individuals in the general population. 19 During the summing-up his Honour said this - And then you heard from Sharon Neville, who was the analyst in the case. The Crown, of course, relies upon her evidence. She received, amongst other things, the underpants worn by the complainant on the night, a buccal swab taken from him, and a buccal swab taken from the accused. Her evidence basically was that she tested the underpants, did a presumptive test for saliva, which was positive. She then conducted a DNA analysis of material found in the underpants. She said that, firstly, there was DNA material. There were two major contributors to it and one minor and, as I understand it, unidentified contributor. She said that one of the contributors had the same DNA profile as the complainant … and she made the assumption, based on the fact that he had been wearing the underpants, that he was in fact one of the contributors to that DNA, so she eliminated his DNA. She was then left with the other major contributor and the minor contributor. Her evidence was, as I understand it, that the other major contributor had the same DNA profile as the accused and she was able to compare that, of course, by using the buccal swab which the accused had readily given to police. She cannot say definitely, and the nature of DNA evidence is no one can say definitely, that someone's DNA is found on the underpants. You might hear it put that way in television shows and so on, but that is not the reality of it. All that Ms Neville says is that the other major contributor to the DNA found on the underpants had the same DNA profile as that of the accused. The important part of her evidence that the Crown relies upon is this. She says that only one in 10 billion people are likely to have that profile. So that the Crown says you would be entitled to be satisfied beyond reasonable doubt, all things being equal, that it was material from the accused that was in fact on the underpants because the chances of it being from someone else are more than one in 10 billion.

20 It was submitted on appeal that the words - because the chances of it being from someone else are more than one in 10 billion

were a form of the "Prosecutor's fallacy": R v GK (2001) 125 A Crim R 351, and that the result was a miscarriage of justice. 21 The Prosecutor's fallacy may be summarised as follows - (i) only one person in (number) will have a DNA profile that matches the crime stain; (ii) the defendant has a DNA profile that matches the crime stain; (iii) therefore there is a (number) to one probability that the defendant left the crime stain. 22 See the judgment of Mason P in R v GK at [48]. 23 In fact that is not what his Honour said. His Honour summarised the relevant part of Ms Neville's evidence when he said - She says that only one in 10 billion people are likely to have the profile. 24 (In fact Ms Neville had said "fewer than one in 10 billion people", but nothing turns on that error). After saying those words, his Honour went on to summarise the Crown's argument, and it was during that summary that his Honour used the words now complained of. 25 But there is a more fundamental answer to the assertions made under this ground of appeal. Experienced defence counsel made no attack on the DNA evidence. He did not submit to the jury that they should not be satisfied beyond reasonable doubt that the DNA on the underpants came from the appellant. The approach to that evidence was quite different. The appellant gave evidence that during the evening, in the public portion of the premises, he had touched the complainant's clothing. Anticipating that evidence, defence counsel cross-examined Ms Neville as follows - Q. I want to ask you some questions Miss Neville about the concept of transference of DNA. It's fact isn't it, that DNA can be transferred from an item to another item, DNA material, in the very way that I think you were referring to with the levels of DNA found to be the third contributor in the sample that you tested from the underpants. You said a moment or two ago, that that could have come from being handled by someone, the underpants that is? A. Yes, that's correct. DNA can be transferred by contact from skin to an item.

Q. And can be transferred from an item to another item? A. Yes, possibly. Q. In ways to do with the items being rubbed together, for example, in a bag where they're kept together, that one item could rub off on another? Be transferred? A. Yes, yes, it's possible, DNA can transfer, yes. Q. It's possible that it can be transferred, DNA that is, from one item of clothing to another? A. It depends on what the source of the DNA you're talking about is. If it's a wet blood stain on one item which comes in contact with another item, yes, that transfer would occur quite well. If it was a dried blood stain, you would expect less transfer from one to the other. If we're talking about skins cells, you'd expect even less transfer to occur, so you might get minute amounts of transfer occurring.

Q. If it was a piece of well you said a blood stain or a blood stained item, it's equally easy to see how an item containing perhaps some other bodily emission, could in a wet state transfer from one to the other? A. Yes, a wet state will facilitate transfer.

Q. I understand and does that include - that includes saliva as well, does it not?

Q. It's also possible isn't it Miss Neville that DNA can be transferred from a person's hand - sorry, I'll be more clear, that if I were to have, for example the DNA from someone's saliva on the back of my hand, that by moving my hand and placing my hand somewhere else on my clothing or my body, that the DNA is in the saliva in the emission on the back of my hand for example, could well be transferred to elsewhere on my clothing? A. Yes it could.

Q. That's certainly possible? A. Yes.

Q. Is it the case that once again that's more likely if it's a wet-- A. Yes, most definitely. Q. --bodily emission, than a dry cell?

Q. Can I ask you this, the other items, items 4 and 5, that form part of your report that were given to you for examination and analysis, they being a t-shirt and the pants, you didn't examine those? A. That's correct.

Q. Why was that? A. Well unfortunately due to limited laboratory resources we have to limit the amount of items that we test in different cases. In this particular instance, we - you go for - we test first the items which we think are likely to yield some evidence and we start with those items and we will progress and examine other items if there's no findings. But, if we do find something on the initial tests, we then will not test the remaining items in a case, unless there's a specific reason to do so, based on the history of the alleged assault.

Q. Can I just ask you this, the amounts of DNA material that were present on the underpants, which is what you found, am I right in assuming that the amounts of material on the underpants could well have been very small indeed? The volume of it is what I'm trying to - and in the examination process they - very small amounts get amplified as it were? A. I would actually consider that quite a large quantity of DNA was recovered from the underpants in this particular instance.

Q. And how do you describe how we're to judge? You say quite a large amount. Is there-- A. Yes because what happens is when we extract the DNA from the item, the second step of the DNA testing procedure is to carry out a quantitation in order to determine how much DNA we have extracted, and in this particular case in forensic terms, it is quite a large amount of DNA, far more than we actually need to carry out our testing procedures.

26 In his closing address to the jury defence counsel said this - Looming large in the evidence on the basis of the Crown's case is the DNA material. You heard from Ms Neville about the DNA material and she told you about the tests that she made and about the findings that she found. You might think that you would be satisfied that there was material found matching Mr Davie's DNA profile on the underpants of (the complainant). You might be thinking to yourselves, "Well, gee, that's pretty much open and shut then, isn't it? That's the game, set and match." But I suggest to you its not. Because I suggest to you that arising out of a couple of the questions that I put to Ms Neville there is an explanation for DNA material matching Mr Davie's profile being found on the clothing. It came directly out of a question that I asked that the Crown has already referred to which has to do with transference.

You will remember that Mr Davie showed you how he touched, on the outside of the boy's tracksuit top, (the complainant's) arm and that was when he was reproaching him, (the complainant) that is, for being rude to his mother, and you will remember that evidence well, I'm sure. Other people saw that slightly differently. Someone else said they saw both hands being placed upon the arms of (the complainant) and someone even said they saw some kind of a slap. Mr Davie says he took him by one hand but it is common ground, you might think, through the evidence itself that at least with one hand or perhaps with two Mr Davie took hold of the boy. Ms Neville, in her evidence, agreed when I suggested to her that DNA material can be transferred from skin to an object and you might think that from Mr Davie's hand to the object, that is the outside of the tracksuit top that (the complainant) was wearing, which is ex G, there would be a transference in the first place from Mr Davie to the outside or to the clothing of (the complainant). And what happens next is interesting in this chain and in my explanation to you of why that is not game, set and match with the DNA. Unlike the clothing collected from the accused which right from the outset was put in separate bags, and you will remember that evidence, his clothing, his boots and polo shirt and socks and underwear and beanie and jeans and so on were put in separate bags right from the outset. By way of contrast, and interestingly and importantly for my submissions to you, (the complainant's) clothing was placed in a pile, and we don't quite know what sort of a pile it was, by his mother and it was all put then, all put, into one bag and then subsequently on 7 June put into six, or whatever it was, separate bags by a policeman. The bags were collected from (the complainant's) house, they were taken back to the police station, they were put in exhibit rooms and they were moved here and there. The whole time the tracksuit top and the underpants and other items were all in the same bag. So you might think that the answer given by the analyst, the answer given by Ms Neville about transference being possible from one item to another could well have happened in this case, that you might think that, unlike the scenario that the Crown was suggesting to you, that there was already DNA material from the accused on the outside of the tracksuit top and that could then well, you might think, have got onto the underpants in a way that was other than, other than, in an innocent way; other than, the way (the complainant) said it happened.

I suggest that you will bear that scenario and that possibility strongly in mind when you are assessing what to make of the DNA evidence. There was lots and lots of evidence led to match up the various sexual assault kits to here and there and so on, and that's an important part of the Crown's proof of the continuity of the exhibits. But at the beginning, at the beginning, the day after the complaint made by (the complainant) or indeed the evening of the complaint made by the young man, his clothes are all put together and then kept together in a bag from 26 May till 7 June when I suggest to you that this cross-contamination could well have taken place. It is important that you bear that strongly in mind as throwing some doubt, you might think, upon just how it came about that DNA matching the accused's profile ended up where it did.

27 Throughout the trial defence counsel proceeded upon an acceptance that the DNA typed by Ms Neville came from the appellant. The only question about it was how that had happened. That explains why defence counsel did not seek any further or other direction from his Honour. 28 I would refuse leave to appeal on this ground.

29 The third ground of appeal asserts that a miscarriage of justice resulted from his Honour's directions in response to a jury question about the use they could make of a finding of guilt on one or more counts in the indictment when considering any other count in the indictment. 30 The trial judge directed the jury that it was necessary for each count to be considered separately. They were also told that if they had a reasonable doubt about the complainant's evidence on one count, they could take that into account in relation to any other count. No complaint is made about those directions. 31 After the jury had retired they sent a note asking this question - If I am using [the complainant's] evidence as part of my reasoning to find a certain way, eg guilty on charges 1 and 2, should I therefore find the same on charge 3?

32 His Honour directed the jury as follows - ... if you mean that you were satisfied beyond reasonable doubt that [the complainant] was honest and accurate in his description of events which give rise to counts 1 and 2 on the indictment, you are entitled to take that into account in assessing his credibility generally, but each count has to be considered individually and only on the evidence that relates to it. So you would still have to consider count 3 separately.

33 The submission on appeal was that the answer to the question should have been - No, it is not permissible to use a finding of guilt in relation to any count to find the accused guilty of some other count. 34 It was submitted that it might also have been appropriate to remind the jury that any doubt they had about the complainant's evidence on one count could properly be taken into account on any other count: R v Markulevski (2001) 52 NSWLR 82. 35 After the direction now under attack the position at trial was this - (i) The jury had been told to consider their verdicts separately on each of the three counts; (ii) All counts depended on the evidence of the complainant; (iiI) Evidence of propensity supported the complainant on all three counts; (iv) Evidence of complaint was relevant and supportive on all three counts. Although their was no complete complaint about the commission of the act the subject of the third count, the complainant did tell Mr Carr that the appellant had put his hand down the front of his pants. (v) DNA evidence supported the complainant on the first two counts but not the third. 36 In a practical and tactical way, however, there was never any differentiation between the counts. Defence counsel did not invite the jury to distinguish between them. There was no invitation to consider differential verdicts. 37 It is pertinent to observe that before he gave the direction now attacked, his Honour discussed the matter with counsel and foreshadowed what he would say. Defence counsel expressed himself content with such a direction. 38 In my opinion there were good reasons why defence counsel did not seek the kind of direction now said to have been essential. I am not satisfied that a case has been made for a grant of leave to appeal on this ground. 39 I propose that the appeal be dismissed.

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