BA v R

HOEBEN CJ at CL:

The trial took place before Wells SC DCJ and a jury at the Lismore District Court between 8 and 15 October 2013. On 15 October the jury returned verdicts of guilty in relation to each of the seven counts on the indictment.

On 12 December 2013 the applicant was sentenced to a total term of imprisonment with a non-parole period of 12 months and a balance of term of 18 months. That sentence was for count 5. The sentences imposed for the other counts were of lesser duration and were subsumed by the sentence for count 5.

The Crown appealed to the Court of Criminal Appeal on the basis that the sentence imposed for count 5 was manifestly inadequate. On 30 July 2014 the Crown appeal was allowed and the sentence imposed for count 5 was varied to a total term of imprisonment with a non-parole period of 4 years and a balance of term of 2 years. The term of imprisonment was to commence on 16 October 2013 and expire 14 October 2019, with the applicant being eligible for parole on 15 October 2017 (R v BA [2014] NSWCCA 148 (McCallum J with Gleeson JA and Fullerton J agreeing)).

This application is for leave to appeal against the applicant’s conviction on count 5. In order to understand the issues before the Court, it is useful to set out the provisions of s 66A of the Act.

There was no issue at trial or in the appeal that the child was aged 6 at the time and that she was under the authority of the applicant. The issue in the appeal relates to whether sexual intercourse, as defined, took place.

Section 61H of the Act defines “sexual intercourse” as follows:

The sexual intercourse relied upon by the prosecution at trial was that “an act of cunnilingus” had taken place. The appeal concerns the meaning of “cunnilingus” as defined in s 61H(1)(c) and the reasonableness of the verdict on this basis.

The interpretation of “cunnilingus”, which was accepted in the appeal, was that given by McCallum J in the Crown appeal and by Mildren J in R v NLR [2008] NTSC 10; 181 A Crim R 146. In the Crown appeal McCallum J held:

In R v NLR Mildren J considered the meaning of cunnilingus, which is also defined as sexual intercourse in s 1 of the Criminal Code (NT). His Honour held that because the term was not defined, it should bear its ordinary meaning:

His Honour reviewed the cases and held that the licking or sucking of the vagina or vulva, including the labia majora or clitoris all amounted to cunnilingus and was satisfied that the kissing of the mons pubis involved oral stimulation of the vulva and was also cunnilingus (R v NLR at [5] – [10]).

The grounds of appeal relied upon by the applicant are:

The applicant was the de facto partner of the complainant’s mother. At the time of the offences the complainant was six years old (d.o.b. February 2006) and the applicant and the complainant’s mother had been in a relationship for about two and a half years. They were planning to get married. The complainant referred to the applicant as “daddy”. The applicant resided with the complainant, her mother and their one year old son, M, in East Lismore. The complainant and M each had their own bedroom. The applicant had been diagnosed with agoraphobia and spent most of his time at home.

The complainant’s evidence in chief comprised her video recorded interview with police on 2 September 2012 (MFI’s 2 and 4) and some short evidence at trial. The complainant’s evidence was that the incidents occurred “a couple of days ago” on a day “in between Sunday and Saturday” when her mother was out shopping for a new mattress. The complainant was home alone with the applicant and M had been dropped home from day care by the applicant’s mother and was playing in his bedroom.

The complainant’s mother, RM, gave evidence that she was out purchasing a new futon mattress on Wednesday 29 August 2012. At about 3pm she travelled alone to Byron Bay for a 4pm appointment to collect the mattress at the futon shop. It was a normal school day and the complainant had caught the bus home from school as she usually did. The school bus normally arrived at the driveway between 3.50pm and 4pm.

The complainant gave evidence that the incident started in the lounge room when the applicant asked her ‘“Do you want to kiss me on the lips?” and I was not so sure I said “I’m not really sure” and he kissed me on the lips” (Q&A 133). The kiss lasted for “a little bit and I wasn’t really sure” (Q&A 137). The complainant said that this kiss was the first of three kisses on the lips by the applicant.

The complainant gave evidence that after the first kiss on the lips by the applicant, she went into her bedroom “trying to get away from him” and “trying to get a lay down”, however, the applicant followed her and “kissed me on the lips again” (Q&A 138-143). When the applicant did this, the complainant was “not quite sure” and “really not very, very happy about it” (Q&A 144-145).

The complainant gave evidence that after the applicant kissed her on the lips for the second time he “took off his shorts and his undies and then I, then he showed it [his penis] to me” (Q&A 154-157). “He showed his penis to me” (Q&A 78) and “I felt disgusting” (Q&A 79). The complainant observed that the applicant’s penis “looked like a big, big bone”; “but it was just a big muscle”; “it looked like, it just looked like a big bone but was it was a big muscle and that’s all I can remember about the penis” (Q&A 158-160). She said that the applicant’s shorts were silver and his underpants were blue. He “took them off totally. He put them on the ground”. The applicant did not remove his shirt (Q&A 161-167).

When the applicant exposed his penis to the complainant he told the complainant to “lick it” (Q&A 306). The complainant then said:

When the complainant was questioned about being asked by the applicant to lick his penis and put her mouth around it, she gave evidence that the applicant also asked her to lick his bottom.

Earlier in the complainant’s interview the following was said:

Later in the interview, the complainant said that after the applicant took his pants off and she saw his penis:

The complainant was in her bedroom at the time, standing up near her bed and the applicant was on her bed. The applicant took the complainant’s underpants “right off” as opposed to pulling them down (Q&A 170-182). Later in the interview when the complainant was asked questions in relation to the act of kissing her bottom [count 6], she said that the applicant also kissed her near the “bagina” and used a diagram to clarify what she meant:

The diagram of the front of a girl’s body marked by the complainant was tendered at trial as Exhibit 1. After the complainant’s interview had been played for the jury, the complainant was referred by the Crown’s trial advocate to Exhibit 1 during further evidence in chief:

The complainant gave evidence that the applicant “licked and kissed my bottom” (Q&A 85). Having removed the complainant’s underpants:

Following the complainant’s evidence that the applicant licked and kissed her bottom, the interviewer showed her two diagrams of a girl:

The diagram of the back of a girl’s body, marked by the complainant, was tendered at the trial as Exhibit 2. After the complainant’s interview had been played for the jury, the complainant was referred by the Crown’s trial advocate to Exhibit 2 during further evidence in chief:

The complainant was asked during the interview what the bottom is used for:

The complainant said that she “quickly put my undies back on” before the applicant “got a chance to actually grab my undies” and ran away from the applicant up the hall. She went into the lounge room to watch some television (Q&A 187-189, 217-218):

In cross-examination at the trial the complainant agreed that some of the things which she had said to the interviewer were not true. Instances of this were:

It was in that context, that the following questions and answers were given by the complainant in cross-examination:

The complainant’s mother in cross-examination said that she had had several conversations with the complainant about “stranger danger” but that she never said to the complainant words to the effect of “don’t ever do it with my husband” or “we might have to move away”.

The complainant told the interviewer that when she went to school, she told two friends of hers (MG and JB) what happened:

There was other background evidence in the trial relating to conversations which the applicant had with a male friend and the complainant’s grandmother on the evening of 29 August. They are not relevant to the issues raised in the appeal and it is not necessary to set them out.

When the two school friends, MG and JB, gave evidence, their evidence did not include any complaint by the complainant concerning any actions of the applicant.

The complainant told the interviewer that the first person she told about what happened with the applicant was her “nanna”. The complainant’s maternal grandmother (MH) gave evidence of what the complainant told her on Saturday 1 September 2012:

In cross-examination MH said:

The Crown did not pursue the response of MH to the last question in her evidence at [36] hereof.

Subsequently, defence counsel explored that issue in cross-examination:

After the complainant had told her what she said the applicant had done, MH called the DOCS helpline that Saturday night. She was contacted by the police the following morning. Thereafter investigations commenced and statements were taken. The complainant’s mother RM said that the DOCS officers had emphasised to her the importance of validating the complainant by telling her that she believed her. RM agreed that at the time she had considerable difficulty in knowing who to believe and who to support.

Ms Morrison, an officer from DOCS, spoke to the applicant on the Sunday afternoon and advised him of what the complainant had said. She made a note of his response at the time as follows:

The defence case can be briefly stated. This is because it was clearly rejected by the jury and played little part in the appeal. The applicant gave evidence in the trial. The effect of his evidence was largely in accordance with the note made by Ms Morrison. He said that after the complainant had kissed him on the lips, he requested that she kiss him on the cheek and the forehead, but not the lips in future. He said that shortly after that the complainant was lying on the lounge and he asked her to move to a different part of the lounge which she did. As she was sitting, she lifted her legs in the air, pulled her underpants down and “flashed her vagina at me … and said “touch it”” (T.152.34). The complainant said “it feels good to touch myself”. The applicant told the complainant that the way she was behaving was wrong and that she should put her underpants back on.

The applicant gave evidence that the complainant told him that her nanna had kissed her on the lips and “on the bum and on the bagina” (T.153.45 – T.154.9). He said that he had heard the complainant use the word “bagina” to refer to her vagina. He said that the allegations which the complainant made were wholly untrue and that he did not kiss or lick her around the front area of her genitalia in the region of her vagina, or at all.

EXTENSION OF TIME

Before considering the merits of the appeal, there is a preliminary matter. This involves an extension of time for the applicant to seek leave to appeal against his conviction. There has undoubtedly been a considerable delay between the applicant’s conviction for count 5 on 15 October 2013 and the bringing of this appeal. The circumstances giving rise to the delay are set out in an affidavit of Jasmine Stanton of 13 April 2015 and an affidavit of Peter Allport of the same date. Without going into the detail of those affidavits, it is clear that the applicant sought to appeal against his conviction at an early point in time but because of circumstances for which he was not responsible, that did not take place.

Since the delay which has occurred has not been due to fault on the part of the applicant, I would grant an extension of time to enable the applicant to seek leave to appeal against his conviction for the offence in count 5.

The applicant submitted that in order for count 5 to be proved beyond reasonable doubt, it was necessary for the jury to be satisfied that he had kissed or licked the complainant’s vagina. It was not sufficient for the jury to be satisfied that he had kissed or licked the complainant’s “bagina”, given the diagram which was Exhibit 1, or “near my bagina”. He submitted that it was significant that at no time did the complainant in terms, or otherwise, say that he had “licked” her “bagina”. The use of the word “licked” was restricted to her “bum” or “butt”. The only exception was at Q&A.341, which concerned whether the complainant had made any complaint to her school friends:

The applicant submitted that the evidence could not establish beyond reasonable doubt that the complainant had been kissed on the genitalia. Even if one were to accept that the complainant was kissed in the area marked on Exhibit 1, the most that this could prove was the possibility of an indecent assault although such was neither charged nor alleged as an alternative to count 5 at trial.

The applicant submitted that the act alleged by the complainant of kissing her “near my bagina” could not amount to cunnilingus. The allegation depended on what the complainant meant by “near my bagina”. The complainant was never asked to explain what she meant when she used that phrase. When asked in her recorded interview “where he kissed you on the front” (Q&A. 294) the result was the drawing firstly of an arrow, which pointed to a location other than the vagina, and the drawing of a rectangle (Exhibit 1) while saying “in this area”. The area of anatomy within the rectangle extended from the waist to the upper thighs. On the basis of that material, the applicant submitted that cunnilingus did not extend to a kissing or licking of the upper legs, upper or inner thighs, or the area indicated by the arrow. He submitted that proof of kissing “near to” or even “on” or “in” this area (which was large and extended beyond the area to which the definition of cunnilingus applied), could not sustain proof beyond reasonable doubt of an offence under s 66A(2) of the Act.

In making that submission the applicant accepted that this point had not been taken at trial. Although her Honour had dealt with the issue in her directions to the jury, it had not been a matter specifically raised by defence counsel. The applicant accepted that the primary issue argued for the defence at trial was whether the charged events had occurred at all, not whether count 5 was capable of being established on the evidence.

The applicant accepted that for this point to be argued, he required leave under r 4 of the Criminal Appeal Rules. The applicant submitted that leave should be granted by the Court in this case because the failure to raise this issue at trial had resulted in a miscarriage of justice (R v Abusafiah (1991) 24 NSWLR 531 at 536; R v Wilson [2005] NSWCCA 20 at [20]; 62 NSWLR 346; Picken v R [2007] NSWCCA 319 at [20]; R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 at [99]).

The Crown submitted that the applicant’s submissions failed to acknowledge that the vagina was one part of the female genitalia and that kissing near the vagina could also be on the genitalia. It submitted that her Honour’s directions were clear about what matters the jury had to be satisfied and that the jury’s verdict meant that they were so satisfied. The Crown submitted that experienced trial counsel did not take this point from which it could be inferred that he was satisfied that the evidence was sufficient to support count 5 provided the jury were satisfied that the events had occurred as described by the complainant.

The Crown submitted that the evidence to establish count 5 was that of the complainant being her interview and further examination and cross-examination at the trial, together with the complaint made to MH and the surrounding circumstances immediately before and after the acts relied upon for count 5. By reference to that last consideration, the Crown relied upon the fact that counts 1 – 4 and 6 – 7 had been proved and that these were indicative of the applicant being sexually aroused and having an interest in the complainant’s vagina for his own sexual purposes.

The Crown submitted that if there were any doubt as to the meaning of the complainant’s evidence when she made her videoed statement to the police, this was removed during cross-examination at trial as follows:

The Crown submitted that the first mention of the word “bagina” was volunteered by the complainant at Q&A.81-82 where she said:

In support of that proposition, the Crown noted that a viewing of the videoed statement showed that when asked to draw where the applicant kissed her on the front (Q&A.294), the complainant initially pointed to the crotch area with the pen and then drew the arrow at the side of the figure. The Crown submitted that because of that evidence, the jury could readily discount the suggestion that the complainant intended to indicate the entire area within the rectangle was that to which she was referring when she used the word “bagina”.

It is true, as both the applicant and Crown noted, that the point raised by this ground of appeal was not taken by the defence at trial and if it is now to be relied upon, the leave of the Court is required by the Criminal Appeal Rules. In my opinion, leave should be given. This is because it relates to an element of the offence. The question of whether the evidence was capable of establishing count 5 is fundamental to whether the offence was made out. If the evidence were not so capable, then the applicant’s conviction on that count has given rise to a miscarriage of justice of the kind requiring this Court to intervene.

In R v Kanaan the Court (Hunt AJA, Buddin and Hoeben JJ) said in relation to rule 4:

It follows that leave to rely upon this ground of appeal should be granted to the applicant.

The Court was invited by both sides to view the videoed statement of the complainant, which made up most of her evidence in chief. The Court did so before the hearing of the appeal so as to better appreciate not only the written submissions before it but the oral submissions. The exercise was useful because it was clear that there were some errors in the transcription of the recorded interview. It was also important to observe the gestures of the interviewer and the complainant at various times during the interview.

Fundamental to the Crown case in relation to count 5 was the evidence of the complainant in the videoed statement of 2 September 2012, five days after the offence was said to have occurred. It is correct, as the Crown submitted, that the complainant mentioned the word “bagina” without prompting for the first time in the interview at Q&A.81. It is, however, also of significance that shortly thereafter the complainant said: “And then he licked and kissed my bottom” (Q&A.85). Nothing was volunteered by the complainant concerning any actions by the applicant directed towards her vagina. Similarly, when the issue of the applicant kissing and licking her bottom was raised again by the interviewer (Q&A.197 and Q&A.243-244) no mention was made by the complainant of the applicant doing anything in relation to her vagina. On the contrary, the question and answer at 244 was:

The next mention of “vagina” did not occur until Q&A.289-296 of the interview. This evidence is important because it represents the high point of the Crown case in respect of count 5.

It is important to note that on this occasion the complainant did not volunteer anything about her vagina. On the contrary a leading question was put to her directed to the vagina, with the interviewer twice pointing with his pen to the crotch area of the diagram, Exhibit 1. What followed was the complainant not volunteering that the applicant kissed her “on” the vagina but responding to the question by saying “at first near my bagina”. In answer to the interviewer’s follow up question, “Anywhere else?” the complainant said nothing further about the vagina, but referred to being kissed on the butt as well. The next question (Q&A.293) was interrupted and the complainant volunteered “the bagina and the butt”. The issue was further complicated by the leading question (Q&A.296) which referred to “kissing around your bum and your vagina”.

Putting that evidence at its highest, from the Crown’s point of view, it amounts to evidence that the complainant said that the applicant kissed her on or near her vagina. Those answers may be mutually exclusive. Near the vagina was never explained. The complainant could have been referring to the genitalia or she could have been referring to “near” the vagina but not on the genitalia. Even if the interrupted question at Q&A.293 is interpreted as evidence that the applicant kissed the complainant on the vagina, that response remains ambiguous because of the marking by the complainant of Exhibit 1.

Exhibit 1 shows an arrow pointing towards the hip, not the vagina. It also shows an area within a rectangle extending from the hips to the top of the thighs. Little assistance is provided by the fact that the complainant initially pointed with the pen to the crotch area because five questions earlier the interviewer pointed twice at the crotch area of the diagram when asking Q.289 and Q.290.

I have concluded that it was not open to the jury to be satisfied beyond reasonable doubt on that evidence that the applicant committed the offence which gave rise to count 5. The next issue is whether the other evidence upon which the Crown relied, satisfies that test.

The evidence of the complainant’s grandmother does not have that effect. There are a number of reasons why this is so. Firstly it was not direct evidence but a hearsay report of what MH remembered having been told by the complainant. Secondly, the evidence was subject to the interpretation which an adult would normally place on what a child of such tender years meant when she spoke about what the applicant had done. Put another way, the evidence went no higher than setting out what the grandmother understood the complainant to mean when she described what happened. An example of the difficulties arising from such evidence is the apparent incorrect assertion that the complainant said that she sucked the applicant’s penis, or as was set out in her police statement, “[The applicant] made me kiss him on the penis”. Thirdly, these complaints were made in a context of the complainant making a number of other apparently sexualised statements which did not involve the applicant but which the complainant had heard about.

The grandmother’s understanding of what the applicant meant when she used the word “bagina” does not take the matter further. By saying that when she used the word “bagina” the complainant meant the vagina is subject to the same imprecision that exists in relation to the videoed interview of the complainant. It remains unclear what she [i.e. the complainant] meant by the word “bagina”.

The further evidence in chief and cross examination of the complainant at trial did not take the evidence further. Her evidence was given on 8 and 9 October 2013, more than a year after the events of 29 August 2012. By reference to Exhibit 1, the complainant gave this evidence:

This was the first time in terms that the complainant had used the word “licked” in relation to the front part of her body. That evidence, however, was significantly qualified because it was given in relation to the rectangular area drawn on the diagram which extended from the hips to the upper thighs. It does not resolve the lack of precision arising from the videoed interview. This is particularly so in view of the following evidence:

At T.35.24-34 the complainant agreed that she had not told her two friends at school any detail of what had happened between the applicant and her, other than to say “something bad happened”. Similar responses were made by the complainant at T.46.11-.24 to leading questions. In any event, the responses by the complainant were at best ambiguous and she did not volunteer any extra detail by her using her own words. Accordingly, it cannot be said that the Crown case was advanced by the evidence in chief and cross-examination of the complainant at trial. This is particularly so when she appears to have had no independent recollection (about the video) of that day.

The Crown submission that the applicant’s conviction for counts 1 – 4, 6 – 7 showed that he was sexually aroused and had a sexual interest in the complainant’s vagina should not be accepted. The evidence of the offences giving rise to those counts was not relied on in the trial as tendency evidence, nor as evidence establishing a sexual interest in gaining access to the complainant’s exposed vagina, or an interest in her vagina generally. It was common ground that no tendency notice was given. At most, the evidence relating to these offences provides a context or the surrounding circumstances against which to consider the evidence relating to count 5. Most particularly there was no account given by the complainant which involved cunnilingus or any licking or kissing of the vagina or in that area until the leading question by the interviewer at Q&A 290. It follows that the evidence of the surrounding circumstances did not support an interest in the complainant’s vagina on the part of the applicant. Moreover, the evidence of the surrounding circumstances was not relied on at trial by the prosecution for such a purpose.

The question raised by this ground of appeal is whether the Court thinks that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant committed the offence giving rise to count 5. This is a question of fact. In considering this ground, the Court must undertake its own assessment of the sufficiency and quality of the evidence. In M v R [1994] HCA 63; 181 CLR 487 the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said:

This test has been restated to reflect of terms of s 6(1) of the Criminal Appeal Act 1912 (NSW) in MFA v R [2002] HCA 53; 213 CLR 606 at [58]. McHugh, Kirby and Gummow JJ said that the reference to “unsafe or unsatisfactory” in M v R is to be taken as “equivalent to the statutory formula referring to the impugned verdict as “unreasonable” or such as “cannot be supported having regard to the evidence””. These principles were more recently re-affirmed by the majority of the High Court in SKA v R [2011] HCA 13; 243 CLR 400. SKA v R made it clear that this ground of appeal requires the Court to consider for itself the sufficiency of all the evidence led at trial on the particular issue under consideration.

Applying those principles, and having fully reviewed the evidence for myself, I am not satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant engaged in sexual intercourse (i.e. cunnilingus) with the complainant as alleged in count 5. This ground of appeal has been made out.

In view of my conclusion in relation to ground 1, it is not necessary to deal with the remaining grounds of appeal. In deference to the comprehensive submissions of the parties, however, I wish to say something about the remaining grounds.

In order to understand the submissions, it is necessary to set out the directions of the trial judge which have been criticised. Count 5 was addressed by her Honour in the summing up in the following terms:

The applicant submitted that her Honour had misstated the evidence in that she had referred to the complainant’s evidence that she had been kissed “on or near her bagina” when it was the complainant’s evidence that she had been kissed “near her bagina”. He submitted that her Honour substituted the complainant’s term “bagina” for “vagina” in restating for the jury the relevant portion of the complainant’s interview. The applicant said that her Honour misquoted some of the complainant’s answers in her interview which might well have confused the jury. The applicant submitted that her Honour’s direction to the jury that the question was “whether the Crown has established that she was as she says kissed in that area of her anatomy” lacked any real precision and might have misled the jury.

It is true, as the applicant submitted, that her Honour did misquote some of the evidence and read to them Q&A.291 which had been incorrectly transcribed on MFI 2, being the transcript of the videoed interview with the complainant. The small part of the evidence which her Honour misquoted would not have been of significance given that the jury had seen the transcript when the video was played and could have called for it in the course of their deliberations if they needed it, rather than relying upon their recollection of what her Honour had quoted. The error in transcription, in the circumstances of this case, did not disadvantage the applicant since it placed an important piece of evidence as part of a question rather than as part of an answer. In any event, it was no fault of her Honour that there had been an error in transcription.

It was not an error on the part of her Honour to summarise the complainant’s evidence to the effect that she had been kissed “on or near her vagina”. That was the effect of her evidence if one accepted that her use of the word “bagina” meant “vagina”. The problem was, as her Honour identified, what precisely was meant by the complainant when she used the expression “near my vagina”. It is for that reason that her Honour specifically raised the issue of whether the complainant appreciated the difference between being kissed on or near the vagina, in the sense of on her genitalia, as distinct from other parts of her body.

It mattered not that her Honour on occasions used the term “bagina” for “vagina” in her summing up. The real issue was what the complainant understood or meant by the terms “bagina” or “vagina”.

Given the way in which this matter was run at trial, with the emphasis being on whether conduct of the type described by the complainant occurred at all, as distinct from whether that conduct gave rise to the offence, her Honour’s summing up on count 5 was quite unexceptionable. Her Honour, unlike either counsel in their addresses to the jury, was careful to set out what needed to be proved to establish that sexual intercourse had taken place and she identified the evidence which was relevant to that question. On more than one occasion, her Honour directed the jury that to establish an act of sexual intercourse they had to be satisfied beyond reasonable doubt that the applicant had kissed the complainant on her genitalia being part of her reproductive system. Nothing more needed to be said by her Honour.

It was not necessary for her Honour to do more than correctly state what had to be proved by the Crown to establish the offence when the real issue before the jury was whether the events, as alleged by the Crown, had occurred not whether that conduct gave rise to the offence. It is not without significance that her Honour was not asked by the defence at the conclusion of her summing up to give any further directions.

It follows that these grounds of appeal have not been made out.

Since ground of appeal 1 has been made out, a verdict of acquittal should be entered in favour of the applicant in respect of count 5. No alternative count was relied on by the Crown and the possibility of a lesser offence being made out was expressly eschewed by the Crown in the appeal. The verdict of acquittal has considerable implications. As indicated earlier in this judgment, the sentences for the other counts of which the applicant was found guilty have been served and his present imprisonment is due entirely to the sentence imposed for count 5. In those circumstances, because the conviction for this count cannot stand, the applicant should be released from custody forthwith.

The orders which I propose are as follows:

R A HULME J: I agree with Hoeben CJ at CL.

CAMPBELL J: I agree with Hoeben CJ at CL.