Tabalbag v R

THE COURT:

On 14 September 2015 Adams J sentenced the appellant to imprisonment with a non-parole period of 12 years, commencing 11 November 2013 and expiring 10 November 2025, with a balance of term of 5 years expiring 10 November 2030.

The appellant appeals against his conviction on the following grounds:

The Crown has appealed against the inadequacy of the sentence on the following grounds:

Because of the nature of the grounds of appeal, the Crown and defence cases may be summarised with greater brevity than might otherwise be necessary.

The deceased had for about four months before his death been having an affair with 28 year old Ms Geecy Rebucas, the long term partner of the appellant, who was about the same age. On 11 November 2013 the appellant entered the unit he shared with Ms Rebucas and saw his partner and the deceased engaged in sexual intercourse. He picked up a chef’s knife that was next to the bed and ferociously stabbed the deceased multiple times to his body (fifteen). He was pushed out of the unit by Ms Rebucas, who also told him to leave. He did so. Later he handed himself into police and made admissions. Ambulance officers arrived and attempted to treat the deceased but he died at the scene.

Formal admissions by the appellant were tendered in the Crown case. They included an acknowledgment that the deceased died as the result of a number of knife wounds inflicted by him at around 11am on 11 November 2013, that he became aware Ms Rebucas could still be at the unit by using his mobile telephone to contact her mobile telephone and that the incident took place after the appellant had arrived at the address to find the deceased and Ms Rebucas naked together on the bed engaged in sexual intercourse.

The appellant and Ms Rebucas had commenced an intimate relationship in 2007. They were involved in a de facto relationship in the Philippines for four years before they decided to move to Australia in 2012. Ms Rebucas had extended family here and wanted to pursue her ambition of training and working as a chef. Shortly after their arrival in Australia, they moved into a small studio apartment in Darling Point. It had a bedroom with a basic kitchenette against one wall and a bathroom. The bed occupied most of the room. The apartment was close to where Ms Rebucas had gained work as a trainee at the Golden Sheaf Hotel at Double Bay.

It was no part of the Crown case that the appellant was a jealous or aggressive partner to Ms Rebucas. The evidence revealed him to be a decent and non-aggressive person. The relationship between Ms Rebucas and the appellant was a close and loving one and they had plans to marry. The appellant had no criminal history in Australia or in the Philippines.

There were occasions in the month before the death of the deceased when the appellant asked Ms Rebucas if she was okay and if she was happy. In that last month he asked her whether there was anyone else but he did not ask this often. Ms Rebucas denied that there was anything wrong or anybody else, but in fact was feeling less close to him during this period. The evidence indicated that the appellant’s suspicion that something was wrong resulted in him installing software in his and Ms Rebucas’ shared computer which made it possible for him to check Ms Rebucas’ messages.

The appellant left for work at 7.30am on the morning of 11 November. Ms Rebucas had sent an email to the Ryde TAFE the previous evening to say that she would not attend the lecture the following morning but would be there in the afternoon. She made plans with the deceased for him to come to the apartment on 11 November. There was no evidence that the appellant was aware of this email or communication.

On 11 November the appellant used an application on his telephone to find the location of Ms Rebucas’ iPhone. It showed that her iPhone was in the vicinity of their apartment. Ms Rebucas, however, had in text messages that morning told him that she was “at school”.

CCTV footage showed the deceased arriving at 9.42am and being let into the apartment by Ms Rebucas. It showed the appellant arriving at 10.58am and leaving at 11.08am. CCTV showed that the appellant accessed the upper floor via the stairs, rather than by the lift.

Ms Rebucas gave evidence that she and the deceased were naked in bed and just finishing sexual intercourse when the key turned in the door. She saw the door partially open and the appellant put his hand in to release the chain. She said that with the chain on and the door partially open, a person on the outside of the door would see the bed straight away. As the appellant released the chain and entered, the deceased ran naked to the bathroom. The appellant kept saying “Why?” as he entered the unit and proceeded to attack the deceased.

The appellant immediately obtained a chef’s knife, which had been sitting for a few months in a box on shelves next to the bed, and ran to where the deceased was. Ms Rebucas saw the appellant stab the deceased all over his body, including his trunk, when he was down on the ground on his back. Ms Rebucas pushed the appellant out of the unit. She told the appellant to go and he did.

Ambulance officers received notification to attend at 11.14am and first arrived at 11.23am. The deceased died while ambulance officers attended him at the scene. Ms Rebucas told one of the police officers who first attended the scene “my boyfriend came home and just went crazy”. The blood stained knife remained at the scene.

Shortly thereafter the appellant surrendered himself to police at St Marys. He was observed by police to look very sad and remorseful. He said that he had stabbed someone and when asked questions about this he said it was “My partner’s boyfriend because I caught her cheating with him”.

The Crown case was that the appellant did not act as he did because of a loss of self-control. Some type of planning to injure whomever Ms Rebucas was with was said to be shown by virtue of his suspicions in the month before 11 November, his installation of the software on the night of 10 November and its use in the early hours of the morning of 11 November, his awareness by virtue of the text messages and the discovery of the location of Ms Rebucas’ phone that she may have been lying as to her whereabouts and his use of the stairs rather than waiting for the lift to go to the unit, use of his key to gain entry and his wearing a hood on his jacket as he entered the unit block. The nature of the attack, the absence of attack on Ms Rebucas (although she was accidently cut) to the extent of deliberately putting the knife behind his back when she was near was said to further support this contention. That he was sufficiently composed to drive to St Marys was submitted to offer further support.

The appellant gave evidence. His evidence does not need to be set out in any detail. He described his thoughts and actions on the morning of 11 November in a way which clearly raised the subjective limb of the partial defence of provocation. This evidence was addressed at [6] – [13] of his Honour’s remarks on sentence (R v Tabalbag [2015] NSWSC 1354). It was set out in some detail in support of his Honour’s finding (contrary to the Crown contention on sentence) that the appellant’s act causing death was done as a result of loss of self control on his part induced by the conduct of the deceased affecting him.

The trial was relatively short and the issues in the trial were in a narrow compass. On Monday, 1 June 2015 the appellant was arraigned and pleaded not guilty to murder, but guilty to manslaughter by reason of provocation. The Crown did not accept that plea and the trial proceeded on the charge of murder. The ultimate issue for the jury was that relied upon by the defence, i.e. whether the Crown had negatived provocation. The evidence in both the Crown and defence cases was complete in four days. The Crown case was closed on Wednesday 3 June and the defence case was closed on Thursday 4 June 2015.

Following the close of evidence on 4 June, the trial was adjourned (over a long weekend) to 9 June 2015. On 9 June both counsel made their final addresses and his Honour summed up to the jury. The Crown’s final address was very short. The defence final address was somewhat longer but still comparatively brief for a murder trial. His Honour summed up without summarising the evidence. His Honour completed the summing up by directing the jury that their verdict should be unanimous and then invited the jury to retire to consider its verdict. Up to that stage during the summing up, his Honour had not referred to the possibility of the jury returning a majority verdict.

The jury retired to consider its verdict at 12.52pm on 9 June. Over 9 and 10 June, parts of the evidence were provided to the jury upon request. A note requesting further assistance as to the definition of “the minimum powers of self-control” of an ordinary person was answered. Late on the afternoon of 9 June, a note was received from the jury (MFI 13 – Jury Note 4) stating:

In response to MFI 13, his Honour reassured the jury by re-stating the need for them to give careful consideration to their verdict and by inviting the jury to leave for that day and to return afresh in the morning when they would “be able to move through into a unanimous decision”.

On 10 June a number of notes were received from the jury. These were responded to and the jury continued its deliberations. The transcript records that the jury continued deliberating for the whole of 11 June, without further communication with the court. On 12 June the jury returned to continue its deliberations at 9.30am.

On the morning of 12 June, a note was forwarded by the jury stating:

The jury was brought into court at 11.05am to have the note addressed. The transcript indicates that his Honour had seen counsel in chambers after receipt of the note but before re-assembling the court. By that stage the jury had been deliberating for a total of 17 hours and 25 minutes.

In the absence of the jury, his Honour referred to the note and said:

In the course of that direction, his Honour said:

After that direction, the jury retired to further consider its verdict at 11.11am. In the absence of the jury his Honour then said to counsel:

At 12.26pm, apparently without further communication from the jury, the court was re-assembled. In the presence of the jury his Honour invited the jury foreperson into the witness box. The following then occurred:

By that stage, the jury had been deliberating for a total of 18 hours and 40 minutes.

The jury then returned to the court at 12.37pm after approximately eight minutes. The foreperson returned to the witness box and gave further evidence.

From the transcript there does not appear to have been any discussion with counsel about the fact that his Honour was going to give a majority verdict direction before his Honour gave it. After the direction had been provided and the jury sent out, his Honour did ask counsel whether there was any difficulty with what he had told the jury. Defence counsel said nothing and the Crown Prosecutor simply indicated that if a verdict were delivered, there would need to be clarification as to whether it was a unanimous or majority verdict.

The court did not reconvene until about 4pm. By that time a further note had been sent by the jury. His Honour said:

Having received the consent of counsel in court, his Honour then had the juror sworn and his Honour asked the juror a number of questions. It was clear from those questions that the juror had considerable difficulty in understanding English. Perhaps the most revealing question and answer was:

By this stage, the jury had been deliberating for a total of 22 hours and 7 minutes. The 11 remaining jurors returned to court and were provided with information about the fact of the juror’s discharge. The following directions were then provided by his Honour:

The jury retired to further consider its verdict at 4.23pm and returned with a majority verdict of guilty of murder (10 – 1) at 4.31pm. By that stage, their deliberations had occupied 22 hours and 15 minutes. No objection was made by either counsel to the trial proceeding with an 11 member jury.

The relevant section of the Jury Act 1977 (NSW) provides:

The appellant submitted that his Honour had no power at about 12.40pm on 12 June 2013 to tell the jury that a verdict “by 11 to 1” could from then on be taken if they could not reach unanimity (the “majority verdict direction”) as the terms of s 55F(2)(b) of the Jury Act were not satisfied.

The appellant submitted that the Court did not indicate, either at the time permission was given by the majority verdict direction or at any time up to the return of the majority verdict, that it was satisfied of the requisite unlikelihood in s 55F(2)(b). The appellant submitted that the Court could not have been so satisfied because the foreperson’s evidence was to the contrary – that the jury was hopeful of reaching unanimity and would like more time to achieve it. The appellant submitted that as a result, an essential prerequisite for the acceptance of a majority verdict was not met.

The appellant submitted that there was nothing in the surrounding circumstances which could have placed the juror’s evidence in a different light. There were only two notes indicating a difficulty in reaching unanimity. The first could be largely ignored since it was sent at the end of the first day and the second, taken at its highest, indicated a difficulty in reaching unanimity in relatively mild terms. The appellant noted that the jury had been deliberating for a little more than one hour after the provision of the Black Direction when the “majority verdict direction” was given.

The appellant submitted that s 55F(2)(b) imposed a mandatory requirement which was a prerequisite for the returning of a valid majority verdict (RJS v Regina [2007] NSWCCA 241; 173 A Crim R 100 at [18] – [26], AGW v Regina [2008] NSWCCA 81 at [27], Hunt v Regina [2011] NSWCCA 152; 81 NSWLR 181 at [28]). The appellant also drew attention to the facts in Pasoski v R [2014] NSWCCA 309 where a majority verdict was taken without any inquiry being made of a member of the jury.

In Pasoski Meagher JA (with whom Hidden J and RS Hulme AJ agreed) said:

There was nothing in the transcript to indicate expressly that his Honour considered whether the jury had deliberated for a period of time that was reasonable, having regard to the nature and complexity of the criminal proceedings. However, when examining the foreperson at about 12.40pm on 12 June his Honour said to her that a majority verdict was possible “given the time that has now expired”. The appellant was prepared to accept that such a statement in the context of the length of the deliberations to that point and the nature of the proceedings, implicitly indicated that the terms of s 55F(2)(a) had been considered and met.

The appellant submitted that the error in providing a majority verdict direction at about 12.40pm on 12 June was compounded by what transpired afterwards. The appellant submitted that ultimately it is the delivery of the verdict which is the subject of the ground of appeal not the terms of the direction. Because of that the appellant submitted that the whole of the circumstances up to the point of receipt of the verdict are relevant.

On that issue, the appellant relied upon the following further provisions of the Jury Act:

The appellant submitted that while he did not take issue with the decision to discharge the juror, s 53C required the Court to consider once it had discharged a juror in the course of a trial whether to continue the trial with a reduced number or discharge the whole jury. If the Court were of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, it was obliged to discharge the jury. If the court were of the opinion that there was no such risk, it was obliged to order that the trial continue with a reduced number of jurors as long as the numbers did not fall below the statutory minimum. The appellant submitted that the second distinct step of this two-stage process was not undertaken by his Honour (Wu v The Queen [1999] HCA 52; 199 CLR 99 per Gleeson CJ and Hayne J at [6], McHugh at [28] – [30], Kirby J at [67] and Callinan J at [103]).

The appellant submitted that unlike the trial judge in Le v R [2012] NSWCCA 202 his Honour did not say anything to indicate that he had made a positive decision to continue with eleven jurors. In Le this Court found that the reasons given by the trial judge were “barely satisfactory” but sufficient. Here, the appellant submitted, there were no reasons at all and the transcript gave no indication other than that his Honour was of the view that the trial should automatically continue with the remaining jurors.

The appellant submitted that a further difficulty arose because of the observations in BG v R [2012] NSWCCA 139. There Adamson J (with whom McClellan CJ at CL and McDougall J agreed) said that the determinative issue to be resolved in s 53C cases was not whether there were insufficient reasons but whether the continuation of the trial with a reduced number of jurors gave rise to a substantial risk of a miscarriage of justice. The appellant submitted that the problem in this case was that the court had an indication that the discharged juror was not prepared to convict him of murder. The appellant noted that in BG Adamson J had discussed the authorities concerning the importance of not continuing with a reduced number of jurors where the discharged juror was likely to have voted for an acquittal or at least not voted to convict. The appellant submitted that in this case it was apparent from the terms of the jury’s note and to some extent from the evidence of the juror himself that the juror felt unable to decide on murder or manslaughter so that it was not likely for him to convict of murder.

By specific reference to this ground of appeal the appellant highlighted the fact that permission to deliver a majority verdict had already been given when the problem with the juror arose. This, the appellant submitted, exacerbated the miscarriage of justice brought about by the premature giving of the majority verdict direction. The appellant submitted that his Honour in accordance with s 53C should have done something along the lines of either questioning the foreperson again as to the chances of a unanimous verdict following the discharge of the juror or re-directing the jury and informing them that a verdict of eleven of them could still be accepted and that the circumstances had not arisen and may not arise where a verdict of less than eleven might be accepted. The appellant submitted that these were potential methods of dealing with the problem that arose at 4pm. The appellant submitted that if on the other hand, his Honour regarded that kind of exercise as artificial, that was an important factor to take into account in relation to the s 53C consideration and was relevant to ground 4 of the conviction appeal.

The Crown submitted that before the juror was discharged his Honour had found that all the pre-conditions of both limbs of s 55F(2) had been met and it was therefore open to his Honour to direct the jury that they should continue to strive for unanimity but failing that, might return a majority verdict. This was because of the very substantial effluxion of time and because it was implicit in the fact that his Honour gave the majority verdict direction when he did, that his Honour was satisfied to the necessary degree in accordance with s 55F(2)(b).

The Crown submitted that the provisions of s 55F require a practical application to circumstances that arise in trials. On that issue, the Crown relied upon that which Emmett JA (with whom Hall J agreed) said in BR v R [2014] NSWCCA 46; 86 NSWLR 456 at [19]:

The Crown submitted that the present case was distinguishable from the cases referred to by the appellant because there was no direction by his Honour at any time for the jury to cease its deliberations. The Crown submitted that on the contrary, his Honour had exhorted the jury to reach a unanimous verdict if they could while leaving open the option of a majority verdict. The Crown noted that his Honour did not refer at any stage to a specific time at which he could then accept a majority verdict but rather continued to stress that the jury had time available to continue its deliberations and to give a unanimous verdict if possible.

The Crown also relied upon r 4 of the Criminal Appeal Rules (NSW) in that at no time did defence counsel object to any of the directions given by his Honour to the jury. The Crown submitted that in relation to the issue of a miscarriage of justice, there was no application by counsel for the appellant at trial to the effect that his Honour was required to (or should) proceed in the manner for which the appellant now contends, i.e. by considering afresh the second limb of s 55F(2) and giving the jury remedial directions.

The Crown submitted that there is no additional requirement in any of the provisions of the Jury Act or otherwise that the trial judge must re-determine the requirements of s 55F(2) in the event that a juror is discharged at some stage after the majority verdict direction had otherwise been properly given. The Crown submitted that the 11 member jury remained the same “jury” which consisted entirely of all the remaining jurors who had been deliberating up to that stage of the proceedings.

The Crown submitted that there was no additional requirement after the discharge of the juror for his Honour to direct the remaining 11 member jury that consequent upon the discharge of the juror, their verdict once again had to be unanimous and that if appropriate, further directions as to a majority verdict would be given. The Crown submitted that there was no requirement for his Honour to consider afresh the issue of whether the 11 member jury would be unable to return a unanimous verdict before permitting that jury to return such a verdict. The Crown submitted that his Honour had appropriately directed the jury to continue to strive for unanimity and in the absence thereof that a 10-1 majority verdict could be returned.

As the analysis in RJS v Regina makes clear, the issue of a majority verdict, although a creature of statute, does not involve a mere technicality. It involves an abrogation of an important right, i.e. the right to a unanimous verdict of a jury in a criminal trial. It is for that reason Spigelman CJ said:

Similarly, the High Court emphasised the importance of a unanimous verdict in a jury trial in Cheatle v The Queen [1993] HCA 44; 177 CLR 541. The Court described the requirement of unanimity as “one of the hallmarks of the common law institution of trial by jury”. The Court said (at 552 – 553):

In this case what has not been disputed by the Crown is that at no time did his Honour in the terms of the Jury Act say that he was satisfied that it was unlikely that the jurors would reach a unanimous verdict after further deliberation. Not only does the Jury Act require that state of satisfaction in the trial judge but it needs to have been arrived at “after examination on oath of one or more of the jurors”.

Here such an examination of a juror took place. It could not, however, be said that the response from the juror supported the proposition that it was unlikely that the jurors would reach a unanimous verdict after further deliberation. On the contrary the juror responded - “We’d like to think we’re likely to get there” and “We’ll hopefully get there”. That is how his Honour clearly interpreted the responses when he asked whether the jury would like more time.

The requirement in s 55F(2)(b) for evidence to be taken from one or more jurors is not a mere procedural step. It is clear from the context that it is only if the examination on oath produces a result that is consistent with the jury being unlikely to reach a unanimous verdict after further deliberation, that the next step can be taken, i.e. of giving a majority verdict direction. In this case the preliminary step did not occur. His Honour could not have been satisfied from the responses of the juror that it was unlikely that the jury would reach a unanimous verdict after further deliberation. It follows that the requirement of s 55F(2)(b) was not met.

This is not to say that it may not be appropriate for a trial judge to take other matters into account, as well as the sworn evidence of a juror, in forming the satisfaction required by s 55F(2)(b). Such considerations could be the length of the deliberation and the nature of the communications from the jury during that time. However, the legislation clearly contemplates that it will be because of the answers pointing to the unlikelihood of unanimity given by the juror or jurors on oath that the trial judge reaches the relevant level of satisfaction not by the mere fact that there has been evidence on oath from one or more jurors on a different topic or pointing to the potential likelihood of unanimity as is the case here.

Moreover, the form in which his Honour expressed the majority verdict direction highlights the defect in the process followed. The Jury Act requires that the necessary state of satisfaction be experienced by the trial judge. His Honour was not entitled to delegate to the jury the requirement to be so satisfied. That was a conclusion which had to be arrived at by his Honour. Yet the effect of directing the jury in terms that “if it becomes clear that you are unable to reach unanimity” conferred on the jury a decision making process which should be carried out by the trial judge.

It follows that grounds 1 and 2 of the conviction appeal have been made out. Rule 4 of the Criminal Appeal Rules does not assist the Crown. As the authorities make clear, a failure to comply with s 55F(2) involves a miscarriage of justice in that the appellant has not had a trial as required by law.

Rule 4 states that the leave of the court is required before a direction, omission to direct or decision as to the admission or rejection of evidence given by a trial judge is allowed as a ground for appeal when no objection was taken at the trial. Grounds 1 and 2 do not come within such a description. In any event, in none of the cases where s 55F(2) has been considered has there been any recourse to r 4. Alternatively, leave would be readily granted because of the risk of a miscarriage of justice (Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [72]).

Similarly, there is no room for the operation of the proviso because of the nature of the error. Failure by the trial judge to adhere strictly to the statutory prerequisite in s 55F(2)(b) breached the appellant’s fundamental common law right to a unanimous verdict. In Hunt v Regina the court noted:

In BR v R RS Hulme AJ (with whom Hall J agreed; Emmett JA stating no need to decide) said in obiter remarks:

There was no issue that should these grounds of appeal be upheld, there should be an order for a new trial.

The appellant acknowledged that because no objection had been taken at trial, leave was required pursuant to r 4 of the Criminal Appeal Rules for this ground to be relied on. There is, however, no need to analyse this ground of appeal in any detail because of the appellant’s success in making out grounds 1 and 2 of the appeal.

Part of a jury note forwarded on the afternoon of 10 June (second day of deliberations) was:

His Honour answered the question as follows:

The appellant submitted that although this direction was provided with the agreement of counsel (SU 17.42), it was an inadequate answer to the jury’s question and additionally carried the risk of diverting the jury’s attention to judging what he did rather than contemplating what an ordinary person could intend. The appellant submitted that the further direction provided by his Honour in response to the jury question, was potentially helpful to his case but required considerably more to be said to properly convey the relevant law. The appellant submitted that the concept of minimum standards of self-control is not really the test for the objective limb of provocation, i.e. the policy of ensuring minimum standards of self-control as a reason for having an objective limb to the test.

The appellant referred to the observation of Brennan J in Green v The Queen [1997] HCA 50; 191 CLR 334 at 340 where his Honour said:

The appellant also referred to Masciatonio v The Queen [1995] HCA 67; 183 CLR 58 at 67 where Brennan CJ, Deane, Dawson and Gaudron JJ said:

The jury’s question and his Honour’s response related to the eighth proposition in the written directions provided by his Honour to the jury. The eighth proposition was in the following terms:

Considered in the context of all of the directions that were given in relation to provocation, i.e. not only the written directions but also the oral directions, his Honour’s response to the jury question could not have resulted in the jury failing to properly apply the objective test component for provocation provided in s 23(2)(b) of the Crimes Act.

Alternatively, to the extent that his Honour’s further directions were inadequate and involved a risk that the jury might be deflected from a consideration of the potential for the ordinary person to have lost self-control to the potential for the ordinary person to have acted in a particular way as a result of that loss of self-control, his Honour’s directions provided a number of very substantial advantages to the appellant which would have been removed if other directions to which the appellant invites attention, had also been given.

The example selected by his Honour and the directions that were given were apt to lead the jury inexorably to the conclusion that the situation confronting the appellant had not been (as his Honour had directed) “an ordinary exigency of life” for which the ordinary person was expected to have ordinary powers of self-control. The contrast created by the road traffic example and the scene confronting the appellant could not have been more striking or more likely to result in the jury concluding that the appellant was confronted by an extraordinary situation.

Further, the observation that the ordinary person would not be expected to resort to violence in the face of the traffic incident, inevitably raised and left open the possibility that violence as a result of a relevant loss of self-control might well be within the range of responses by a “ordinary person” confronted with the facts of this case. It follows that the contrast between the circumstances of this case and those of the example given by his Honour were apt to compel the jury to conclude that they could not be satisfied beyond reasonable doubt that an ordinary person might not have lost their self-control if confronted by the situation in which the appellant had found himself.

It further follows that to the extent that the example was inapt and/or the directions focused attention upon the nature of the conduct in response to the loss of self-control, rather than upon the question of whether there could be a loss of self-control per se, those directions were very favourable to the applicant. Accordingly, even if there were error in his Honour’s directions on this point (which is by no means clear), the directions were very much to the benefit of the appellant. For those reasons, the Court is not prepared to grant leave to the appellant under rule 4 to rely upon ground 3.

After some preliminary discussion at the commencement of the appeal, the appellant was granted leave to rely upon this ground. Understandably, the Crown had not directed any of its written submissions directly to the issues raised by this ground. In those circumstances, because the appellant has achieved success in relation to grounds 1 and 2, the Court is of the opinion that no useful purpose would be served by any further analysis of ground 4.

Similarly, because of the appellant’s success in relation to grounds 1 and 2 and the strong likelihood if not inevitability of a re-trial, no useful purpose would be served by the Court hearing the issues raised by those grounds challenging the adequacy of the sentence imposed on the appellant. To do so would be to provide something akin to an advisory opinion which this Court has always eschewed. Accordingly, the Court declines to deal with the Crown appeal against sentence.

The orders of the Court are as follows: