Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Connor Hunter (A Firm) v Keencrest P/L & Ors [2009] QCA 156 McMurdo P Holmes JA Chesterman JA 9/06/2009

General Civil Appeal from the Supreme Court, Trial Division — Landlord and Tenant — Rent — Rent Review Clauses in Leases — The second respondents (the Hurrens) purchased the Courthouse Restaurant at Cleveland from the first respondent (Keencrest), with the sale conditional upon Keencrest then leasing the restaurant from the Hurrens — A dispute arose between Keencrest and the Hurrens as to whether clauses of the lease were void under the Retail Shop Leases Act 1994 (Qld) (RSLA) — The appellant, a firm of solicitors, was joined as a party on the basis that they may be liable in damages to Keencrest for negligence and/or breach of retainer — Primary judge found that clauses in the lease contravened ss 27 and 36 of the RSLA by providing for more than one basis for reviewing the rent and/or providing the rent to change in accordance with whichever of two or more methods gave the higher result — Resort was made to extrinsic materials — On Appeal — The resort to extrinsic materials led to confusion rather than clarification — The argument before the trial judge focused on what was meant by the Explanatory Note and the Ministerial speech rather than on the words of the Act itself, which was a serious distraction — If one looks to the Act itself it is immediately apparent that the trial judge’s conclusion was unjustified — Section 27 RSLA expressly permits rent review clauses which will lead to increases but not permit any decrease in rent — Sections 27(5)(c), (d) and (f) RSLA have the effect that rent may (will) go up, but not down, throughout the whole of the term of the lease, and are in one sense “ratchet” clauses but are valid — The structure of the clauses in the lease is to provide for an annual review of rent by reference to a described method, however if that method does not produce an increase in rent there is to be no review, with the method not to be used — The effect of the clauses in the lease is to determine the circumstances in which there will be no change to the rent by making the method of calculating change ineffectual, or inoperative, where the result of the calculation is a lower figure than the previous years’ rent — The subclauses do not provide for two bases for reviewing the rent and do not contravene s 27 RSLA — HELD: Appeal allowed, Set aside the orders made in the trial division, Declare that the relevant clauses of the lease are not invalidated by the RSLA and costs.

Hurley v Clements & Ors [2009] QCA 167 McMurdo P Keane JA Fraser JA 16/06/2009

General Civil Appeal from the District Court — The Coroner and the Coroners Court —Proceedings at Inquest or Inquiry — Powers of Superior Court — On 19 November 2004 Cameron Doomadgee (“the deceased”) was found dead in a cell in the police station on Palm Island — A post-mortem examination showed that he had a black eye, broken ribs, his portal vein had been ruptured and liver had been almost split in two — On 27 September 2006 the Acting State Coroner published the findings of her inquest into the death of the deceased — The Coroner concluded that Senior Sergeant Hurley, the senior police officer on Palm Island at the time of the death of the deceased caused injuries to the deceased — In particular the Coroner concluded that Hurley and the deceased fell through the doorway of the police station onto the floor and the deceased was hit by Hurley whilst he was on the floor — The Coroner concluded that the fatal injuries suffered by the deceased were not caused in, or as a result of, the fall but by Hurley punching the deceased after the fall — An application to the District Court set aside the finding made by the Coroner “that [Hurley] lost his temper and hit [the deceased] after falling to the floor…thereby causing the fatal injuries and that Hurley had responded with physical force” — The application by Hurley included other challenges to the Coroner’s findings — Unclear to this Court how his Honour intended to dispose of the application insofar as it concerned the other “findings” which were brought within the scope of Hurley’s application — The judge went on to order that the State Coroner direct another Coroner to reopen the inquest to re-examine “the finding” — Again, because of the uncertainty attending the scope of the decision to set aside the findings which were not challenged before him, the scope of his Honour’s order was not as clear as it might have been — On Appeal — Regrettably, much of the argument advanced on behalf of both Hurley and the appellants was of little assistance to this Court — One issue that indisputably arises for determination by this Court is whether the Coroner’s finding that the injuries which led to the death of the deceased were caused by Hurley punching the deceased was a finding “reasonably supported by the evidence” — The resolution of this issue turns in the end upon the undisputed medical evidence which was before the Coroner concerning the likely cause of the injuries to the liver and the portal vein of the deceased — The primary judge addressed himself to a broader review of the evidence than was necessary or appropriate to a consideration pursuant to s 50(5)(d) of the Coroners Act 2003 (Qld) (CA) — In particular, his Honour held that the Coroner erred in failing to keep “in mind that alternative hypotheses needed to be considered and excluded before inferences adverse to Hurley could be drawn from proven facts” — This approach was not in conformity with the Act — Rather his Honour’s approach was akin to that to be applied to determine criminal responsibility upon a trial for an offence or on an appeal from a conviction of a criminal offence — The Act makes it expressly clear that the Coroner’s task of making findings as to the circumstances of a death was not concerned with questions of criminal responsibility — The reasoning of the District Court was affected by error — Necessary for this Court to consider the Coroner’s finding — A report into the death of the deceased was prepared by Dr Ranson who conducted a second autopsy on the deceased on 30 November 2004 — The effect of Dr Ranson’s evidence was to exclude the punches described by another witness as the cause of the liver injuries — None of the medical witnesses nor any of the parties sought to dispute Dr Ranson’s unequivocal rejection of the possibility that the punches described by the other witness could have caused the fatal injuries — But the Coroner did not refer to the unequivocal evidence of Dr Ranson or the circumstances that his opinion was undisputed — The finding of the Coroner that punching by Hurley caused the fatal injuries sustained by the deceased was not reasonably open on the evidence and that the decision of the District Court that this finding of the Coroner should be set aside was correct even though the process of reasoning whereby his Honour arrived at the decision was flawed — This Court is of the opinion that the finding by the Coroner as to how the deceased died is not completely or accurately stated by saying that the death occurred as a result of injuries sustained by punching by Hurley — The whole of that finding is the jumble of statements contained at [22] of these reasons which related to s 45(2)(b) of the Act — HELD: Appeal allowed, The whole of the finding of the Coroner as to how the deceased died excerpted at [22] of these reasons be set aside, The inquest to be reopened, The State Coroner is directed to appoint another Coroner other than the Coroner below, to re-examine the finding set aside, Leave to make written submissions in relation to costs.

HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 Keane JA Fraser JA Chesterman JA 16/06/2009

General Civil Appeal from the Supreme Court, Trial Division — Limitation of Actions — Extension of Period — Cause of Action in Respect of Personal Injuries — Principles Upon which Discretion Exercised — Between 1981 and 1985 the plaintiff (HWC) was a student at St Paul’s School conducted by the first defendant (the Synod) — HWC alleges that while he was at the school he was sexually abused by his music teacher, Gregory Knight — On 15 August 2002 HWC commenced an action against the Synod claiming damages for personal injuries resulting from that abuse — At that time HWC’s action was time-barred under the Limitation of Actions Act 1974 (Qld) (LAA) unless an extension of time was granted under s 31(2) of the LAA — HWC contended that the St Paul’s headmaster, Mr Case, had been warned about Knight by the Brisbane Boys College Headmaster Mr Thomson, before Knight was employed at St Paul’s — In relation to the other defendants the evidence was that these defendants caused Knight to be dismissed from his employment as a teacher in South Australia in May 1978 — In June 1978 the notice of dismissal was rescinded and Knight’s resignation was accepted — On 9 September 2008 the learned primary judge made orders extending the limitation period — On Appeal — It was noted that Thomson was unable to “recall the precise details of [one of] the complaint[s]” against Knight and further “The reasons were probably given in more general terms than in particular detail” — The vagueness of Thomson’s recollection is understandable, but it is a matter which must concern a court charged with responsibility for allowing the case to proceed to trial — It is noted that there is evidently a significant contest between Thomson and Case as to the terms of the discussion which occurred between them about the circumstances of Knight’s dismissal by Thomson — It is also noted that although there is no direct evidence from the Board of Teacher Education Queensland or Case that they did in fact rely upon references provided to it of Knight’s South Australian teacher registration, neither is there direct evidence that these matters were immaterial to Case’s decision to engage Knight — In relation to HWC’s case against the Synod it is apparent that much turns on the terms of the conversation between Thomson and Case — It is apparent that their recollections have been affected by the passage of time and that their statements were provided only very recently — They have differing views about what was said in relation to the nature and extent of the misconduct which led to the termination of Knight’s employment at BBC — A Mr Laubsch, Director of Personnel in the South Australian Department of Education and a Mr Mayfield, Director General of Education in South Australia at the time of Knight’s resignation were both deceased by the time the actions were commenced against the South Australian authorities — Both of these officers upon whose conduct the second and third defendants’ liability largely depends are no longer available to defend the decisions in which they were involved — The lapse of time which has occurred in this case has been so great that there is what McHugh J described as a “significant chance” that the South Australian authorities will not now be able “to fairly defend themselves” (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541) — HELD: Appeal allowed, Orders of the primary judge be set aside, Applications for extension of time dismissed, Plaintiff’s claim against the defendants is dismissed.

Williams (as liquidator of Scholz Motor Group P/L (in liq)) v Peters [2009] QCA 180 McMurdo P, Muir JA and Fraser JA 19/06/2009

General Civil Appeal from the District Court — The appellant (Williams) sought to recover money from the respondent (Peters) for the benefit of the company’s creditors under s 588 Corporations Act 2001 (Cth) — Scholz Motor Group (SMG) was a motor dealer operating on the Gold Coast under a motor dealers licence with four directors including Mr Seymour and Mr Scholz — SMG had a trust account and an overdraft account with the National Australia Bank which, at relevant times, was overdrawn to the extent of about a million dollars — On 12 September 2005 Peters met with Messrs Seymour and Scholz and discussed with them the purchase by him of a Mercedes Benz car owned by and registered in the name of the company for a price of $165,000 — He agreed to Messrs Sholz and Seymour’s demand of immediate payment — Peters was provided with a receipt for $165,000 — The whole of the $165,000 was deposited in the company’s overdraft account — Peters took delivery of the car on the day of payment but no transfer documents were processed — On that day Peters signed an application for finance from Grand Motors — A female employee of Grand Motors informed him that the money advanced “goes back to the dealer where the invoice has been raised” — On 15 September Peters was advised that his application for finance had been successful, and on 19 September Daimler (Grand Motors finance company) paid $165,000 into SMG’s overdraft account — Peters visited SMG’s premises and was given a cheque for $165,000 drawn on the overdraft account — Peters was advised by his bank in a letter dated 23 September that the cheque had been dishonoured — Further attempts at payments by cheque from SMG were also dishonoured — On 11 October Peters met with Messrs Seymour and Sholz at the company’s bank — A bank cheque for $10,000 was obtained and two vehicles were provided to Peters by SMG as security — These were both sold for $85,000 by Peters — The primary judge dismissed Williams’ claim for Peters to repay the company an amount he received from it in what Williams claimed was a voidable transaction, and adjourned Peters’ counterclaim for a declaration of a trust and for him to be entitled to priority over the unsecured creditors — The primary judge concluded that the sum (paid by Daimler) was to be held in trust as “it was transferred to [the company] for convenience and to meet the requirements of Daimler” — On Appeal — The payment of monies by Daimler into the company’s overdraft account had the consequence that, if a trust had existed, any proprietary claim against the company was lost, leaving Peters with a personal claim for breach of trust — That claim did not entitle Peters to any priority over any other secured creditors in the winding up — The bank cheque represented a further borrowing by the company from its bank, and the cars, acquired by the company before any trust arose, could hardly be considered trust property — Peters did receive an unfair preference under s 588FA(1)(b) in the form of the bank cheque and cars, as the company was insolvent at the time of these transactions — The effect was that Peters was preferred over those other creditors whose debts remained wholly unpaid throughout the same period — Peters failed to establish under s 588FG that his receipt of the property from the company was not a voidable transaction — A document signed by Messrs Scholz and Seymour guaranteed payment of $165,000 by 7 October — A reasonable person’s doubt about the insolvency of the company would have been increased by the failure to pay $165,000 on 7 October — The reasonable person would have drawn the inference that the payment of $10,000 was the best the company could do in the circumstances, and the offer in relation to the two cars made that conclusion inescapable — The primary judge erred in finding that a reasonable person in Peter’s circumstances would have had no reasonable grounds for suspecting that the company was insolvent — HELD: Appeal allowed, Order made by the primary judge set aside, Judgment be entered in favour of the appellant in the sum of $95,000 plus interest, Costs and Respondent’s counter-claim dismissed.

Caltabiano v Electoral Commission of Qld & Anor [2009] QCA 182 Muir JA Fraser JA Fryberg J 26/06/2009

General Civil Appeal from the Court of Disputed Returns — Elections and Related Matters — Disputed Elections — Disputed Elections Courts — Procedure — In April 2009 the appellant (Caltabiano) filed an originating application in the Court of Disputed Returns challenging the election of a Mr Kilburn as the member of the Legislative Assembly for Chatsworth — When Caltabiano filed her originating application she gave a cheque for $502.50 to the appropriate administrative officer at the civil registry counter in the Supreme Court Registry — At the time of filing the application Caltabiano was accompanied by a solicitor, a Mr Chand and an articled clerk — The primary judge found that this amount did not include payment by way of deposit under s 130(3)(b) of the Electoral Act 1992 (Qld) (EA) and that the appellant’s application was incurably defective — On Appeal — The purpose of the deposit is to provide some security for legal costs which respondents may incur in the successful defence of an application — The effect of s 130(3)(a) of the EA is that a person who wishes to dispute an election must file with the Supreme Court Registry an application to the Supreme Court exercising its jurisdiction as the Court of Disputed Returns, with said application being an originating process commencing a civil proceeding in the Supreme Court — In summary the appellant knew of the requirement in the EA to pay a $400 deposit and intended to include the deposit in her payment, but she did not know what amount if any, was payable for filing fees; the appellant failed to express her intention to pay the deposit to the registry officer; the registry officer knew that the amount payable for filing fees was $502.50 but did not know of the requirement for the deposit; in response to the asking what amount was payable the registry officer informed the appellant that the amount was $502.50 — The uncontentious facts show that a reasonable person in the payee’s position would have appreciated that the appellant must have intended to appropriate $400 to the deposit she subjectively intended to make in order to fulfil the terms of the Act — The strong public interest in facilitating access to justice suggests that the courts should readily infer that appropriation which will avoid invalidity of proceedings where, as here, there is no indication that the intending litigant intended to appropriate the payment in a different way — HELD: Appeal allowed, Set aside the orders of the primary judge, Dismiss the applications by the respondents with costs.

CRIMINAL APPEALS

R v AAG & AAH [2009] QCA 158 McMurdo P Holmes JA A Lyons J 12/06/2009

Miscellaneous Criminal Applications from the District Court — Notices of Appeal — Time for Appeal and Extension Thereof — The applicants pleaded guilty in January 2006 to nine counts of rape and one count of deprivation of liberty and were sentenced to eight and a half years imprisonment with a serious violent offence declaration — Both applicants filed applications for leave to appeal against sentence within time but these applications were abandoned due to legal advice and lack of funds — Such informed decisions will only be set aside where the applicants demonstrate that it would be a miscarriage of justice not to allow their application — Counsel emphasized that both applicants gave information to the police that led to their two co-offenders, Azhar Hussein and Afsheen Hussein, being charged with the present offences and with an earlier series of rape offences involving another complainant, C, which the applicants were not involved in — For that reason the applicants were sentenced under s 13A Penalties and Sentences Act 1992 (Qld) — The sordid circumstances of the applications are set out in the appeal concerning their co-offenders, R v Hussein & Hussein [2006] QCA 411 at [50] — [51] — In understanding the approach of the sentencing judge the prosecutor’s submissions are relevant — The prosecutor submitted, and on which the primary judge seemed to act, that a 15 year term of imprisonment for the applicants would have been appropriate after a trial, was wrong — The Court of Appeal in Hussein considered that the head sentence imposed on the Husseins of 15 and 15 and a half years imprisonment was too high if they were being dealt solely for the offences committed against C (in which the applicants in the present case were not involved) — This Court concluded, however that 15 and 15 and a half year sentences imposed on the Husseins were global head sentences, reflecting their overall criminality for all the offences including those offences which they committed with the present applicants — The applicants’ comparative youth, lack of prior similar convictions, and the fact that the complainant was not badly physically injured, suggest that, were the applicants convicted of the present offences after a trial, a sentence in the range of 11 to 13 years would have been appropriate — A deduction of about one-quarter to one-third for the conduct of the case and the early plea of guilty, a head sentence in the vicinity of about nine years imprisonment should have been imposed — A discount of a little less than one quarter would have been an appropriate discount for the s 13A cooperation, which would make the appropriate sentence to have been about seven years imprisonment — Considerable force in the submissions that the applicants have received a sentence of imprisonment about 18 months heavier than they should have — Suggestion that the legal advice they received prior to the abandonment of their applications was not a correct objective analysis of the applicable law — HELD: Set aside the abandonment of the applications for leave to appeal, Reinstate the applications for leave to appeal.

R v HAU [2009] QCA 165 Keane JA Cullinane J Jones J 16/06/2009 Appeal against Conviction & Sentence from the District Court — Procedure — Powers and Duties of Prosecution as to Calling of Witnesses and Presenting Evidence — HAU was convicted of indecent treatment and unlawful carnal knowledge of a child under 16 years of age and was the guardian of that child — The Crown case was that between December 2007 and February 2008, HAU engaged in seven acts of sexual activity with the complainant who was 14 years of age at the time — The complainant’s mother was in a de facto relationship with HAU — On Appeal — Common ground that at trial the prosecution was in possession of two pieces of information which should have been disclosed pursuant to s 590AB of the Criminal Code 1899 (Qld) but were not — These items were a letter from a doctor who was treating the complainant for depression and the victim impact statement of the complainant — Aspects in the victim impact statement were inconsistent with aspects given by the complainant at trial — The passages of the victim impact statement do suggest that the complainant was overborne – at least to some extent – by the appellant and that he used a measure of force to have his way with her — Reference by the trial judge on the address of the Crown Prosecutor included “She had not suggested here that she was forced into sexual activity. She didn’t allege violence…” — The defence should have been afforded the opportunity to raise with the complainant in cross-examination the differences in her accounts of events — This Court is unable to say that the loss of the opportunity to cross-examine the complainant was not a material disadvantage to the appellant — The loss of this opportunity because of the failure of the prosecution to perform its obligations of disclosure goes to the root of the fairness of the trial — The opportunity in question was not illusory — It is unnecessary to determine the application for leave to appeal against sentence but for completeness the Court would not have been disposed to interfere with the sentence imposed — HELD: Appeal against convictions allowed, Convictions on all counts set aside, Retrial ordered on all counts.

R v McClintock [2009] QCA 175 Keane, Fraser and Chesterman JJA 19/06/2009

Appeal Against Conviction & Sentence from the Supreme Court of Queensland, Trial Division — Particular Grounds of Appeal — Misdirection and Non-Direction — Appellant was tried on indictment which charged her with six offences — On 29 September 2008 the appellant pleaded guilty to the charges contained in counts 1 and 3, wilfully damaging property and the serious assault of Peter McClintock, her separated husband — On 1 October 2008 the jury delivered verdicts on the other counts — The appellant was convicted of count 2, burglary, but acquitted of count 6, common assault with these verdicts being unanimous — The jury, by majority, acquitted the appellant of attempted murder but found her guilty of wounding with intent to do grievous bodily harm — At 9.27 am on the third day the jury retired to consider the verdicts — The trial was probably the first to be conducted after the enactment of s 59A of the Jury Act 1995 (Qld) which would allow for majority verdicts in certain circumstances — The trial judge drew counsel’s attention to the section on the first day — At 2.19 pm on the third day the judge advised the jury that their verdict “must be unanimous” — At 7.54 pm the trial judge spoke to counsel to point out that at 8.15 pm on his reckoning the jury would have been deliberating for eight hours — The trial judge stated to counsel “Now, the fact that the jury have been deliberating for so long, given the relatively short compass of the evidence and its uncomplicated nature, I think would probably justify the conclusion that they’re unlikely to reach a unanimous verdict…” — The court then received a question from the jury which was answered by the trial judge who then gave a further direction “So I now ask you to retire and further deliberate… with a view to reaching a majority verdict, that is, a verdict of at least 11 of you” — The jury then retired at 8.15 pm — The trial judge asked counsel whether they had any complaint about the direction, with both answering in the negative — After further queries by the jury they retired to consider their verdict on count 5 at 8.42 pm and returned at 8.47 pm to return a verdict by majority of unlawfully wounding with intent to cause grievous bodily harm — On Appeal — His Honour appeared to have considered that no further period beyond the eight hours was necessary — It is not the sort of assessment with which an appellate court would readily interfere — A judge’s satisfaction on the unlikelihood of a jury reaching a unanimous verdict is not readily amenable to appellate correction — It is appropriate to caution that a majority verdict may not be taken unless there is sufficient evidence of the unlikelihood of a unanimous verdict — The trial judge’s assessment of this unlikelihood was seen to be correct by the rapidity with which the jury reached its majority verdicts — The trial judge considered the terms of the section and determined that they had been complied with — The sentence imposed was not manifestly excessive — The case was a serious one, with the wound being inflicted with an intention of causing grievous bodily harm — HELD: Appeal against conviction dismissed, Application for leave to appeal against sentence refused.

R v EI [2009] QCA 177 Holmes JA, McMurdo and Applegarth JJ 19/06/2009 Appeal against Conviction from the Childrens Court — Criminal Law — Criminal Liability and Capacity — Infants — The appellant was convicted of rape and attempted rape — The appellant was aged 12 at the time of the offences in May 2007 — The trial judge was satisfied that the appellant had capacity in each case and accordingly found him guilty — The appellant is yet to be sentenced — On Appeal — Much of the prosecution evidence was of no relevance to the only question in the trial — The evidence of the police interview with the appellant went to the question of capacity by exploring the appellant’s ability to distinguish between right and wrong — The appellant’s answers contained some explanation which demonstrated an understanding of right and wrong — In response to a query from the police officer about touching (the other policewoman present) without her permission and whether this was “the right thing or wrong thing?” the appellant responded by saying “Wrong thing” and when queried why he responded “‘Cause people don’t like being touched” — It was open to the trial judge to conclude from this evidence that at least by the time of the interview, which was in October 2007, the appellant had the capacity to know that he ought not to do acts of the kind involved in these offences — The inference was open that he had the same capacity going back as early as May 2007 — HELD: Appeal dismissed.

R v BBR [2009] QCA 178 Keane and Chesterman JJA and A Lyons J 15/05/2009

Appeal against Conviction from the District Court — Miscarriage of Justice — Particular Circumstances Amounting to Miscarriage — Improper Admission or Rejection of Evidence — In October 2008 the appellant was convicted, after a three day trial, of one count of indecent treatment of his niece S, and four counts of indecent treatment of another niece, K in December 2005 — At the time of the offences S was 11 years 11 months old and K was seven years and 10 months — The children complained to their mother — They were interviewed by police and the recording of their complaints was admitted as their evidence in chief against the appellant on his trial pursuant to s 93A of the Evidence Act 1977 (Qld) — The pre-recording of the girls’ evidence pursuant to s 21AK(3) of the Act occurred before a District Court Judge on 17 October 2006 — S gave evidence first, with the prosecutor raising the possibility that she might not understand the nature of an oath — The learned judge queried S — K, who was then nine years old, was next tendered as a witness — On Appeal — The learned judge did not explain to K “the duty of speaking the truth” which s 9B(3) requires a judge to do if the decision is made that the witness is not competent to give the evidence on oath — The consequence submitted and accepted is that K’s evidence was not properly before the court and the jury should not have regard to it — If the explanation is not given, an accused’s rights have been jeopardised — The reception of K’s evidence has vitiated the trial which was not conducted according to law — It is obviously imperative that a child witness who gives unsworn testimony in answer to questions put on behalf of the accused exercising his only right to test the evidence be given the statutory, judicial explanation that she must speak the truth — His Honour made no enquiry of K to ascertain whether she was competent to give sworn testimony, whether by reference to the common law or to the Act — This error also affects the testimony of S who was affirmed upon the judge ascertaining that she had no belief in God, however the consequence of that error may be of no moment — The failure of the primary judge to comply with s 9B has deprived the appellant of a proper trial, that is one conducted according to law, with evidence tendered according to the law’s prescriptions — The evidence of touching on other occasions was not “propensity” evidence; nor was it “similar fact” evidence, but it was circumstantial evidence that could only be permissibly to establish the touching was deliberate; that it had happened too often to be accidental, inadvertent or innocent — The evidence of K seems to show elements of exaggeration, inconsistency and implausibility which an explanation of the importance of truthfulness and accuracy addressed to her may have been removed — HELD: Appeal allowed, Convictions in respect of the counts on which the appellant was found guilty are quashed and Retrial in respect of those counts ordered.