Cavukai v The State [1993] FJHC 28; HAA0002j.1993s (18 March 1993)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2 OF 1993

BETWEEN:

JOPE CAVUKAI
Appellant

AND

STATE
Respondent

Appellant in Person
Mr. W. Foster for the Respondent

Dates of Hearing: 10th and 12th March 1993
Date of Judgment: 18th March 1993

JUDGMENT

At the conclusion of argument I stated that I dismissed this appeal but would publish my reasons for so doing later. I now do so.

This is an appeal against convictions and a total sentence of two and half years imprisonment imposed on the Appellant by the Magistrate's Court at Suva on 20th January 1992.

The appellant was charged with an accomplice Ilisavani Jeqesa Sole with three offences:

(1) Unlawful use of a motor-vehicle contrary to Section 292 of the Penal Code Cap. 17;

(2) Wilfully and unlawfully causing damage to a motor-vehicle contrary to Section 324(1) of the Penal Code; and

(3) Stealing $5,000.00 in cash the property of one Suresh Babu Lal s/o Babu Lal.

All the offences were alleged to have occurred on 3rd January 1991. The trial was originally listed before Mr. S.P. Sharma, Resident Magistrate on 21st January 1991 when Ilisavani Jeqesa Sole a co-defendant pleaded guilty to all three charges and the Appellant pleaded not guilty to them. The Learned Magistrate convicted Ilisavani Sole and sentenced him on the first count to three months imprisonment, on the second count to three months imprisonment and on the third count to fifteen months imprisonment, all sentences being concurrent. He also activated part of a suspended sentence of 19th March 1990 for forgery and uttering a forged document.

In view of the Appellant's plea of not guilty the Resident Magistrate, Sharma did not conduct the trial of the Appellant which was originally listed before Resident Magistrate, A. Prasad on 29th May 1991. Initially the Appellant was represented by the present Attorney-General but on 6th August 1991 Mr. Bulewa was given leave to withdraw. It was adjourned twice more until 28th November 1991 and apparently the Appellant informed the Court that Mr. Isireli Fa was going to appear for him. When Mr. Fa did not appear the Appellant sought another adjournment but this was refused by the Learned Magistrate, Mrs. Prasad and his trial then began on 28th November 1991.

It continued on various days until 24th December 1991 when the Magistrate adjourned the hearing for judgment on 14th January 1992. On that day the Learned Magistrate stated that because of other judgment in the Appellant's case until the 20th of January and on that day she gave judgment and convicted the Appellant on all three charges.

On 20th January 1992 the Appellant wrote to the Chief Registrar of this Court appealing against his convictions and sentence and making seven brief submissions which I have treated as grounds of appeal. I may summarise them as follows:

(1) That the Learned Magistrate erred in law by denying the Appellant the right of a fair trial when she refused his application to call two alibi witnesses namely Merewalesi Camai and Kama.

(2) That the Learned Magistrate was biased against the Appellant in disregarding certain evidence, which if considered would have led to a finding of innocence.

(3) That the prosecution had failed to prove identification of the Appellant by not conducting an identification parade during their investigation and failing to apply the guidelines in Queen v. Turnbull & Others (1976) 63 CR. APP. R. 132.

(4) That the evidence against the Appellant on all three counts was merely circumstantial and could not support the charges.

(5) That the Learned Magistrate had doubts about the Appellant's guilt because she adjourned her delivery of judgment three times after the hearing.

(6) That the Appellant's co-defendant Ilisavani Sole was sentenced to 15 months imprisonment for the same offences and yet the Magistrate sentenced the Appellant to a much longer term of imprisonment thus indicating bias by the Magistrate.

(7) That in all the circumstances the sentence of 2 years and 6 months was harsh and excessive.

Following his conviction the Appellant appeared before my former brother Jayaratne J. on 24th January 1992 and applied for bail pending his appeal under Section 315 of the Criminal Procedure Code Cap. 21.

In a ruling delivered on 10th February 1992 Jayaratne J. granted the Appellant bail fixed in the sum of $1,000.00. When the Appellant appeared before me at the commencement of his appeal he first sought an adjournment of at least two weeks on the ground that he wished to engage counsel and secondly sought continuation of his bail. I refused his request for adjournment and revoked his bail for reasons which I shall give shortly. On the final day of the hearing of this appeal Mr. M. Patel appeared as counsel for the Appellant and sought an adjournment of at least six days to enable him to prepare the Appellant's case. I refused that request for reasons which will also appear shortly.

I first wish to make some comments on the grant of bail to the Appellant by Jayaratne J. I do so with the greatest respect to my former brother because I am firmly convinced on the facts of this case that His Lordship regrettably misdirected himself.

Section 315 of the Criminal Procedure Code allows a convicted person to be admitted to bail if in the circumstances of the case the High Court or the Court which convicted such person thinks fit. There are broadly similar provisions in the legislation of the United Kingdom, the various States of Australia and Papua New Guinea, countries with whose laws I am reasonably familiar.

It is clear that Section 315 in line with similar legislation in the countries I have just mentioned confers a wide discretion upon the Court entertaining an application for bail after conviction. But in those countries (I shall not refer to any authorities in Fiji) applications after conviction are rare as the authorities make it clear that they are viewed with very great care.

The situation after conviction is obviously a different one than before conviction, when the presumption of innocence still prevails; post-conviction the applicant must show there are "exceptional circumstances". It is true that in none of the legislation which I have mentioned, including Section 315, is the term "exceptional circumstances" mentioned but the judicial gloss has been put upon such provision because of the view that "the guilt of the person accused has been established ... in what must be taken until the contrary be shown to be a trial properly conducted without effort by law." - Smedley v. St. unreported judgment of the National Court of Papua New Guinea (1978) N. No. 173.

In the present case counsel who appeared for the Appellant submitted to Jayaratne J. that the Appellant would probably be acquitted on appeal on the ground of the real likelihood of bias on the part of the Magistrate who tried the Appellant. He further submitted that the Appellant was prejudiced in his defence because "his witnesses were not allowed to be called."

As to the first ground there is nothing in the judgment of Jayaratne J., nor, so far as I can gather in his notes of counsel's argument, to indicate what precisely was being alleged by the Appellant as bias by the Trial Magistrate. If there had been any particulars given I have little doubt that these would have been the same as the Appellant argued before me, that the Learned Magistrate when a State Prosecutor had prosecuted the Appellant successfully on a charge of manslaughter.

It appears that my Learned former brother did not enquire from counsel as to the nature of the bias alleged by the Appellant but I am satisfied that if he had the Appellant would have given the same answer as he gave to me. As I will say later in my judgment, such an allegation can not be entertained because as appears from the record of the Court below the Appellant at the beginning of his trial made no application to the Learned Magistrate to disqualify herself on the ground of bias. The time for making any such allegation must obviously be before the trial commences and in my judgment it is wrong to subsequently make this a ground of appeal when no such application was made to the Court below.

I feel reasonably confident in saying that had Jayaratne J. been informed of this by the Appellant or his counsel he may well have refused bail on at least this ground.

The other ground made before Jayaratne J. that the Appellant was not allowed to call witnesses as to the alibi is patently untrue for reasons which I will give later but there is nothing in the reasons Jayaratne J. gave to indicate that he sought any particulars of this claim by the Appellant when, in my respectful view, he should have.

It is true as Jayaratne J. said in his ruling that Section 315 offers the Court "A fair amount of discretion to consider bail pending fair trial." It is also true as His Lordship said that the concept of bail pending appeal has been given statutory recognition but I do not agree with respect with His Lordship's unqualified statement that "its objective is to be gained and not lost."

The right given by Section 315 is obviously in my view very qualified and it has been held that bail should not be granted to persons with criminal records - see H.M. Postmaster-General v. Whitehouse (1951) 1 KB 673. In the instant case the Appellant had a criminal record of 35 convictions extending from 1975 - 1990 ranging from manslaughter and robbery with violence or assault occasioning bodily harm to larceny, damage to property, shop breaking, entering and larceny to common assault.

Whether or not this long list of prior convictions was brought to the notice of Jayaratne J. does not appear from his ruling but clearly it should have been. If it had been His Lordship may well have not been as sympathetic to the Appellant's application as he was.

It was for these reasons that I revoked the Appellant's bail.

I turn now to the appeal before me. I have said that on the first day the Appellant was unrepresented and I refused him leave to engage counsel on the ground that he had sufficient opportunity to do so. He claimed and I accept, that he did not receive notice of the hearing of his appeal until six days before the date fixed for hearing and so he said had not had the time to engage counsel. I rejected this claim first because in my view ever since the Appellant was granted bail by Jayaratne J. he had some thirteen months in which to engage counsel but had not done so. If he had engaged counsel who, because of another commitment could not appear for the Appellant on the day fixed, I indicated that I would have endeavoured to accommodate the Appellant by adjourning the hearing until another date mutually convenient.

In any event it was clear that the Appellant had made no attempt to engage counsel during the six days before the hearing of his appeal and I stated that if he had been serious in pursuing his appeal he should have done so. This was the reason why on the last day of the hearing I refused an application by counsel whom he briefed the previous day, Mr. Patel for any lengthy adjournment.

I stated then, and I repeat now, that I considered the Appellant was not only manipulating but also abusing our legal system in making such a belated application.

After taking instructions Mr. Patel then withdrew from the case with my leave.

I turn now to the various grounds of appeal argued by the Appellant.

The first is that, that the Learned Magistrate erred in law by denying the Appellant the right of a fair trial when she refused his application to call two alibi witnesses. It will be noted that before Jayaratne J. the Appellant had apparently claimed that the Learned Magistrate had refused him leave to call witnesses generally, an amazing claim in view of the facts which the Appellant must have well known.

The Appellant submitted to me that the Trial Magistrate had refused leave to call two alibi witnesses but according to the Court record at page 37 the Appellant stated that he wished to call only one more witness who was not present in Court that day. When the Learned Magistrate asked the Appellant "Would the evidence of that particular witness be the same as that given by these witnesses?" (referring to three previous witnesses by the Appellant), he replied "Yes".

The Magistrate then held that it was not necessary to call the witness.

Before me the Appellant submitted that the Court record here was incorrect and that he had actually sought permission to call two more witnesses namely Merewalesi Camai and Kama.

The Appellant admitted that all the rest of the Court record was correct and I therefore fail to understand why, if this be so, the Learned Magistrate made a mistake in this one part.

In my view there is no merit in the Appellant's claim which I strongly suspect is due more to hindsight than to reality. In any event there is nothing wrong in a Magistrate or a Judge having heard a number of witnesses and then being told that other witnesses who could be called would give similar evidence, declining to allow such witnesses to be called. No injustice in my view resulted from the Magistrate's refusal to allow the Appellant to call any more witnesses as to his alleged alibi. I therefore reject this ground of appeal.

On the second ground of appeal, namely bias by the Magistrate I repeat what I said earlier when dealing with this claim when first made before Jayaratne J. There is not one piece of evidence in the Court record or any remark by the Learned Magistrate which in my judgment suggests any bias on her part against the Appellant. Indeed, during argument when I questioned the Appellant about this, he agreed that he was really claiming that the Magistrate was wrong and not biased although at the end in his reply to counsel for the Respondent he returned to his claim of bias.

I am satisfied this cannot be sustained and I therefore reject Ground two.

On ground three the Appellant claimed that contrary to the decision of the Court of Criminal Appeal in R. v. Turnbull & Others (1976) 63 CR. APP. R. 132 he should have been allowed to participate in an identification parade during Police investigations into his offences. Turnbull's case is an authority for no such proposition. It is an important decision which has been quoted and followed frequently since it was given because it lays down guidelines for the guidance of Courts dealing with cases where identification of an accused person is a very real issue and in my judgment the Learned Magistrate, although not specifically referring to Turnbull, obviously had the case in mind when giving her judgment.

The Appellant complained that although he took part in an identification parade important witnesses in the trial were not called to be present at such parade. Here it is necessary to state briefly the prosecution case against the Appellant. In mid July 1990 the then Managing Director of the Southern Cross Hotel Reginald Williams was driving a sedan car registered CE194 about mid-night when he felt tired and parked the car and fell to sleep in front of the Suva Civic Centre. He suddenly realised sometime later that he was being driven to the hotel by some person whom he did not recognise but who later transpired to be an acquaintance of the Appellant who was then the Security Guard for the hotel. When he looked for the key of the car the next morning he could not find it and was told by the Appellant that he knew the person who had brought him to the hotel and promised to enquire about the missing key. The key was never found.

On 2nd January 1991 a Mr. Anthony Stephens the owner of the Southern Cross Hotel had parked his car outside his house in Flagstaff; this car was the same as that used by Mr. Williams in July 1990 namely CE194.

On 3rd January 1991 when Mr. Stephens went outside his house with a key to use the car he found it missing. He stated the car was worth $34,000.00 and that it was subsequently found the same morning at about 8.00 a.m. It suffered damage of approximately $3,000.00 to its gear box.

The next prosecution witness was the Complainant, one Mr. Suresh Babu Lal. He stated that on 3rd January 1991 he went to buy fish in various places unsuccessfully and then went to a bridge near the bank of the river at Vatuwaqa. He was carrying with him a black briefcase containing $5,000.00. He sat in the van and a few minutes later a car, CE194 parked alongside him for a few seconds and then drove off.

Mr. Lal then left his van and talked with a friend beside the bridge for five minutes. The motor car CE194 came back again and parked beside his van. He said a man of large build got out of the car, looked inside the van and then smashed a side window door of the van on the driver's side and grabbed the briefcase and immediately drove off. He stated that the person he saw doing this had a cloth or towel on his head and from his build appeared to be a Fijian. There was a driver in the car the engine of which was running all the time. When he saw the person breaking into his van Mr. Lal was 30 yards away but he saw the person holding something black in his hand but did not know what it was.

The next witness for the prosecution was Tevita Cuvatoka. He stated that he was the person who had driven Reginald Williams back to the Southern Cross Hotel in July 1990. He said Mr. Williams was drunk and when he got to the hotel he locked the car and took the keys because Williams wanted to drive again. He kept the key in his taxi and then at home after which he went to Levuka for some time. On some date which he could not remember precisely but which was near Christmas the Appellant whom he knew came to his house and asked for the car key which Tevita Cuvatoka gave him. He also stated that he went to the Appellant's house on some date near Christmas after he heard on the radio of the news of the robbery of the car.

A witness Fifita Vakaloloma then gave evidence. He stated that at about 6.00 a.m. on 3rd January 1991 he went to a shop at Nadera but the shop was not open. While he was waiting outside for the owner to open the shop he saw the Appellant standing by the road opposite the shop. He stood for a while and then got into a taxi. On 4th January 1991 he identified the Appellant in an identification parade at the Raiwaqa Police Station.

Another witness Pesamino Vaibola stated that he was a bread manufacturer and delivered bread to various shops each morning in his van. He remembered that on 3rd January 1991 he went to deliver bread as usual to the shop referred to by Fifita Vakaloloma at 6.00 a.m. The shop was closed and he waited until it opened. He saw the Appellant whom he had seen previously but whose name he did not know relieving himself beside a hibiscus plant. Pesamino was in his van and the Appellant was about 10-12 yards away. The Appellant saw Pesamino whereupon the shop opened and Pesamino went in with his bread. He did not see the Appellant again.

The principal witness on whom the prosecution relied was an accomplice of the Appellant Ilisavani Sole. He said that on 2nd January 1991 about 7.30 p.m. the Appellant whom he knew called at his house and gave him a car key and told him to pick him up the next morning between 4.00 - 4.30 a.m. On 3rd January 1991, as directed by the Appellant, he walked from his home in Milverton Road to an address in Laucala Bay Road. He saw car No. CE194 parked beside a house, opened it with the key given to him by the Appellant then drove to a place near where the Appellant lived. The Appellant got into the car whereupon he covered his head with a red-flowered sulu and had a pair of socks on his hands. He stated that he wanted to rob somebody. Ilisavani Sole then drove the car to a bridge near which he saw a white van parked. He stopped the car parallel to the van. The Appellant got out of the car, broke the glass on the driver's side door of the van with a jack taken from CE194 and removed a black briefcase from the van. They then drove to a taxi stand near the bread shop referred to by the earlier witnesses where the Appellant got out. Ilisavani then drove CE194 about six chains from the shop and then left the car and walked towards the bread shop. On the way he met a taxi containing the Appellant and went home. He gave the key of CE194 to the Appellant. He stated that the robbery occurred at between 5.00 -5.30 a.m.

The Appellant was interviewed by the Police on 20th January 1991 and after being cautioned signed a record of interview in which he claimed that Ilisavani Sole had master-minded the robbery although he admitted that he himself had actually smashed the van window with a car jack and that he had covered his face with a red cloth. He said that he took $1,800.00 from the briefcase.

The Appellant called a number of witnesses apart from himself in his defence. He stated that the reason why he admitted the offence to the Police was so that he could be given light treatment. He said he had been denied food and his clothes had been removed. The three witnesses whom he called all said that on 2nd January 1991 they had gone with the Appellant to a market where they bought certain produce.

It will be obvious from the above recitation of the evidence that in the case of the first two prosecution witnesses no question of identification arose. In the case of the Complainant there was no point in the Police involving him in an identification parade because it was not part of the prosecution case that he had identified the Appellant at the scene. He admitted that he had not done so, and thus a parade for this witness was obviously unnecessary. As far as the witness Tevita Cuvatoka was concerned, again no parade was necessary. As to the evidence of Fifita Vakaloloma, he stated that he had not merely got a fleeting glimpse of the Appellant but had seen him for a short while standing by the road opposite the bread shop.

In the case of the accomplice Ilisavani Sole clearly no identification was called for and in the case of Pesamino Vaibola no point would have been served in my judgment by having him participate in such a parade. He stated that he knew the Appellant, that he had gone to the bread shop at 6.00 a.m., that he had seen him near the shop relieving himself from a distance of 10-12 yards and that the Appellant had also seen him.

In my judgment the Learned Magistrate committed no error in accepting the evidence of identification of the Appellant given by the prosecution witnesses. This was circumstantial but for that reason alone was not necessarily unworthy of belief. I shall discuss the question of circumstantial evidence shortly but it is desirable here to mention briefly the complaint made by the Appellant about the evidence of his accomplice Ilisavani Sole. This witness gave unsworn evidence and was affirmed whereas the Appellant complains he gave sworn evidence but was not believed by the Magistrate. This, he claims, showed bias by the Magistrate.
I reject this claim.

Under Section 136 of the Criminal Procedure Code a witness in any criminal cause or matter shall be examined upon oath or affirmation. There is no magic necessarily in the manner in which a witness undertakes to tell the truth before giving evidence. An oath is a religious asseveration by which the party calls his God to witness that what he says is the truth, or that what he promises to do he will do. Evidence is given on oath "for the law presumeth that no man will forswear himself for any worldly thing". (2 Coke upon Littelton, 294 B, 295 A). In the end it is always the quality of evidence which matters rather than the manner in which a witness promises the Court he will give truthful evidence. The Learned Magistrate was fully aware of the dangers inherent in the evidence of any accomplice which is not corroborated. She stated this on page 39 of the record and said that she had fully considered the evidence of the accomplice and found no reason to doubt his evidence. Further she said his evidence was corroborated by the Appellant's caution statement, by which I take it to mean his signed record of interview and the evidence of Tevita Cuvatoka, Fifita Vakaloloma and Pesamino Vaibola. I agree.

In Tumaholde Bereng v. The King (1949) AC 253 at p.270 Lord MacDermott speaking for the Privy Council said

.... "An accused does not corroborate an accomplice merely by giving evidence which is not accepted and must therefore be regarded as false. Corroboration may well be found in the evidence of an accused person; but that is a different matter, for there confirmation comes, if at all, from what is said, and not from the falsity of what is said. It is, of course, correct to say that these circumstances - the failure to give evidence or the giving of false evidence - may bear against an accused and assist in his conviction if there is other material sufficient to sustain a verdict against him."

In the present case the Appellant's sworn evidence before the Trial Magistrate differed from the answers he gave in his record of interview. In the former he admitted participating in the crime but said that he did so at the behest of Ilisavani Sole. In the latter he denied being present at the scene of the offence at all.

In my judgment this evidence when coupled with the other circumstantial evidence to which I will refer in a moment was sufficient to entitle the Learned Magistrate to find the Appellant guilty and I therefore reject this ground of appeal.

As to ground four I take the law as to circumstantial evidence in Fiji to coincide with what was said in the High Court of Australia in Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 at p.104.

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 at p.634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, at p.252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 584, at pp. 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.': Peacock v. The King at p. 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions, (1973) 1 W.L.R. 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense."

It is clear however that it is the tribunal of fact that has to decide whether the guilt of the accused is the only rational inference that the circumstances would enable it to draw. It was said by the English Court of Criminal Appeal in Reg. v. John Hills (1988) 86 CR. APP. R. 26 at pp.30-31:

"Corroboration is not infrequently provided by a combination of pieces of circumstantial evidence, each innocuous on its own, which together tend to show that the defendant committed the crime."

In the present case the prosecution claimed, and I agree, that when the whole of the evidence is considered, namely the loss of the key to car CE194, the possession of that key by the Appellant, the presence of that car according to Ilisavani Sole and the Appellant's own admission, at the scene of the crime by the bridge, the circumstances of the robbery given by the Complainant and the evidence of the two persons Fifita and Pesamino who saw the Appellant at the bread shop and in a taxi at a time consistent with the evidence of Ilisavani Sole, this was sufficient for the Learned Magistrate to conclude that the Appellant had committed the crime. In my judgment, like that of the Magistrate, the guilt of the Appellant was the only rational inference that the circumstances of this case allowed to be drawn. I therefore reject this ground of appeal.

The fifth ground of appeal, that because the Magistrate adjourned giving judgment three times she must have doubted about the guilt of the Appellant, does not bear any real consideration. The record of the Court below is quite clear. Judgment was deferred only once, from 14th to 20th January 1992 because the Magistrate had other cases proceeding before her. This ground is also rejected.

Finally I come to the sixth and seventh grounds of appeal. The Appellant complains that his accomplice received a lower sentence of imprisonment than the Appellant and that in all the circumstances the sentence the Appellant received was harsh and excessive. I do not agree.

The Appellant, as I said at the beginning, had at the date of his conviction 35 criminal convictions from 1975 until 1990. It is by any standard an appalling record and the Appellant in my view can count himself lucky that in Fiji there is no provision in the Penal Code for having persistent offenders declared habitual criminals. If there were, I have little doubt that by now the Appellant would have been declared an habitual criminal. Certainly in my view he would have been in most of the Australian States and in Papua New Guinea. It may be that if the authorities have not previously considered amending the Penal Code to make provision for such declaration of persons who continually break the law by committing serious offences they may deem it desirable to do so now.

I find nothing in the total sentence given to the Appellant which could be considered on any view manifestly excessive. In this I am reminded of the observation of Lord Goddard CJ in R. v. Grondowski (1946) KB 369; (1946) 1 All ER 559 that:

"It is too often nowadays thought, or seems to be thought, that the interests of justice means only the interests of the prisoners."

I respectfully endorse that remark which to my mind holds just as good today as it did in 1946. When a person such as the Appellant regularly declares war on his society he can hardly wonder at that society retaliating in the only reasonable way it can, namely through the Courts, to ensure that such persons are dealt with firmly but fairly in an attempt to persuade them of the error of their ways.

This Appellant has clearly not been persuaded yet. Perhaps this last sentence may induce him to be. For these reasons I dismiss his appeal both on convictions and on his sentence.

JOHN E. BYRNE
J U D G E

HAA0002J.93S