R v Saefafia [2019] SBCA 6; SICOA-CRAC 46 of 2017 (15 April 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Regina v Saefafia
Citation:
Decision date:	15 April 2019
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Brown, J)
Court File Number(s):	Criminal Appeal Case 46 of 2017
Parties:	Regina v Edmond Saefafia
Hearing date(s):	9 April 2019
Place of delivery:	High Court of Solomon Islands, Honiara
Judge(s):	Goldsbrough P Ward JA Wilson JA
Representation:	Mr. R Talasasa and Ms. M Suifa’asia for the Appellant Mr. G Gray for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, s200, s125; Police Act 2013, Criminal Procedure Code, Firearms and Ammunition Act.
Cases cited:	R v Bosamete, R v Tome, R v Somae, Doney v The Queen, R v Alagere, Shepherd v The Queen, R v Ludawane
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-20

JUDGMENT OF THE COURT

1. On 10 February 2003, the Tensions were approaching their end and the Commissioner of Police, Sir Frederick Soaki (Soaki) was in Auki as a member of the Special Constabulary Demobilization Delegation. They met with representatives of the Special Constabulary during the day and, afterwards, went to the Auki Motel where they and some others had dinner. As they sat around the table after the meal, a man with a loose-woven piece of material over his head and face and with a brimmed hat over it, came up the stairs to where the men were sitting. He looked around at them briefly and then walked quickly to Soaki, drew a pistol and fired a single shot into his chest. He hurriedly left the way he had come and made off. As he ran, he was seen by witnesses, some of whom gave evidence identifying him as the respondent.
2. The prosecution case was that man was the respondent (hereinafter referred to as the accused). He was a police officer, Edmond Saefafia ( or Sae), and evidence was also called that he had been in the vicinity of the motel that day drinking with some others during which he had threatened to kill Soaki. Count one charged him with murder and the issue at the trial was identification and the discrepancies between the evidence of the various witnesses.
3. The shot penetrated the deceased’s chest, passed right through his body and, it appears, the wall behind him. He collapsed on the floor and died. A post mortem examination in Honiara the next day ascertained that the bullet had resulted in a collapsed lung and caused substantial bleeding in the body cavities. The cause of death was stated to be exsanguination that he bled to death.
4. The accused was arrested some time later but escaped on 22 April 2003. On 30 April 2003, he was still at large and was driven, possibly by another person, to the Auki police station in a Hilux truck. It stopped opposite the station and the accused alighted. He had a sub machine gun and, after a short time, fired three bursts of fire which sprayed the front of the police station building. Some of the bullets penetrated the walls and windows.
5. At that time, a number of people were detained for questioning about another matter and had been taken by the police to a kitchen in the station where they were given some food. That group included an elderly man, Chris Saeni Orea and some of his sons.
6. After the shooting ceased, the elderly man and his thirty-year-old son, Chris Orea Jnr, were wounded. The father died on his way to hospital. He had five penetrating bullet wounds; two to his chest, one in each shoulder and one in the abdomen. His son had a bullet wound to the head which fortunately did not penetrate the skull.
7. The accused remained at large until he was re-arrested in Kwara’ae on 14 October 2015 and was retained in custody. His trial in the High Court commenced in August 2017; 2 years after the re-arrest and 14 years after the murder of Soaki.
8. He was charged on five counts:
   • (a) Count 1; Murder of Frederick Soaki at Auki Motel on 10 February 2003; contrary to section 200 of the Penal Code;
   • (b) Count 2; Escape from lawful custody on 22 April 2003; contrary to section 199 of the Police Act 2013;
   • (c) Count 3; Murder of Saeni Orea at Auki Police Station; contrary to section 200 of the Penal Code;
   • (d) Count 4; Attempted Murder of Chris Orea Jnr at Auki Police Station; contrary to section 215(b) of the Penal Code;
   • (e) Count 5; Possessing a firearm without a licence; contrary to section 5(2) (a) of the Firearms and Ammunition Act.
9. The accused pleaded guilty to the fifth count and was tried on his pleas of not guilty to the remaining four.
10. At the conclusion of the prosecution case, the defence applied to have the case stayed because of the length of time since the matters about which the witnesses were giving evidence had occurred and, at the same time, also made a submission of no case to answer on all four counts.
11. The learned trial judge refused the application for a stay but ruled:
    • (a) there was a case to answer on the Soaki murder (count one);
    • (b) there was no case to answer on the escape (count two);
    • (c) there was no case to answer on the Orea murder (count three) but there was a case to answer in the alternative on the lesser offence of manslaughter; and
    • (d) there was no case to answer on the attempted murder charge (count four).
12. The Crown has appealed against both conviction and sentence and the accused has cross appealed against sentence.
13. There are five grounds of appeal against conviction which, in summary, are that the learned judge erred in law;
    • (a) when he acquitted the accused on count one;
    • (b) when he applied the wrong test for a case to answer;
    • (c) when, at the end of the trial, he only delivered a judgment on the Soaki murder and failed to give a verdict on counts three and four;
    • (d) when he did not find a case to answer on counts three and four;
    • (e) when he disregarded amendments to count two although he had earlier allowed them.
14. This was a case where the procedure adopted by the judge leaves this court with some serious misgivings. Those misgivings apply to the conduct of the case as a whole.

Ground one: the acquittal on count one

15. At the end of the prosecution case, the defence submitted there was no case to answer on count one, the Soaki murder. It is necessary to deal with the manner in which the judge determined the test to be applied at that stage but it is more conveniently dealt with in our consideration of the court’s decision in respect of counts 3 and 4. For the purposes of this count, it suffices to point out that the judge found there was a case to answer on count one and, on the evidence before him, that was clearly correct.
16. Following that ruling, defence counsel advised the court that the accused would not give evidence or call witnesses. After closing submissions by counsel, the judge analyzed the evidence on count one to determine, at the conclusion of the case, whether guilt had been established beyond reasonable doubt.
17. The prosecution called a number of witnesses to the events at the motel when the murder took place and witnesses, including some of the accused’s erstwhile colleagues in the police, who testified on the accused’s movements and conduct before and after the murder occurred. It was not surprising that, fourteen years after the event, the recollections of witnesses, even of such a dreadful incident, had changed and differed to varying degrees from their recollections as recorded in statements made nearer the time.
18. The judge explained his approach:
    • “...the judge must winnow from the ‘story’ only facts which the court finds reliable, whether by reason of corroboration for instance, or validation or substantiation in some material part or by reliance on the witness’s testament unshaken in cross examination.
    • In this trial, the character of the prosecution witnesses has been attacked through their earlier evasions about facts which they later plead as truth...All lead the court to the question can they be trusted? For facts found must satisfy the court beyond reasonable doubt of the guilt of the accused. To accept the time honoured criteria, evidence may be unreliable where shown to be contradicted by others, inconsistent, improbable or unrealistic.”
19. He then dealt with the evidence of each of the principal witnesses in turn and in some detail. It is not necessary to go through their evidence. The judge acknowledged the problem of the effect of the 14 years delay and the difficulty in matching the oral evidence before the court with earlier written statements.
20. Having considered the evidence of the prosecution witnesses, he concluded by directing himself “not to depart from the time honoured principle that to convict, a court need be satisfied of guilt beyond reasonable doubt. In this prosecution, I am not so satisfied.”
21. He then acquitted the accused of the murder of Sir Frederick.
22. That was a decision he was entitled to make and there is no reason for this court to interfere. As has been stated many times, it is not for an appellate court relying, as it does, on a written account of the evidence to substitute its decision on the findings of fact for that of the trial judge who has had the advantage of seeing and hearing the witnesses.
23. The appeal against the acquittal of murder on count one is dismissed and the acquittal confirmed.

Ground two: the ruling on a case to answer.

24. Whilst the judge found there was a case to answer at the close of the prosecution case in respect of count one, he did not find a case to answer on count three (murder of Chris Saeni Orea) and four (attempted murder of Chris Rea Jnr).
25. In a criminal trial, the prosecution must prove the case against an accused person beyond reasonable doubt before he can be convicted. However, at the close of the prosecution evidence, the court needs to consider whether there is any evidence against the accused before he can be ‘put to his defence’. In this case, defence counsel submitted to the court that there was no case to answer - a suggestion the prosecution challenged.
26. The Criminal Procedure Code provides, in a High Court trial, that:
    • “When the evidence of the witnesses for the prosecution has been concluded ... the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing if necessary any arguments which the ... advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.”
27. The correct test at this stage of the trial has been explained in the cases of Tome [2004] SBCA13; and Somae [2005] SBCA18 and the effect of those decisions has been further summarised in the later case of Bosamete v R [2013] SBCA 16:
    • “[17] the limited power given to the High Court by section 269(1) was noted by this Court in the case of R v Tome and further clarified in R v Somae. In the former, the Court pointed out that the test for the judge at the end of the trial included the evaluation of the strength of the evidence but differentiated that from the position on a submission of no case at the close of the prosecution. The Court concluded:
      • “The test called for by section 269(1) is whether or not there is ‘no evidence that the accused committed the offence’. That must mean that if there is some evidence that the accused committed the offence, the case must proceed to final determination by the tribunal of fact.”
    • [18] The Court referred to the case of Doney v The Queen [1990] HCA 51; [1990] 171 CLR 207 and the test formulated in that case by the High Court of Australia:
      • “It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.”
    • [19] The court explained:
    • “As is made clear by cases such as Doney, inconsistencies in evidence (whether within the testimony of a witness or as between witnesses) are not relevant at the no case stage. The court must take the prosecution evidence at its highest and that means accepting the evidence most favorable to the prosecution when determining whether an accused has a case to answer. The test is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty.”
    • [20] Nine months later, in R v Somae, the Court repeated that reference to Doney and added:
      • “It is important to note that the evidence that is to be considered for the purposes of a no case submission must be capable of proof beyond reasonable doubt of the accused’s guilt. It is not enough if it is merely capable of proving the possibility of guilt. It must be capable, if accepted, of proving guilt beyond a reasonable doubt.
      • As the High Court of Australia said in Doney, ‘To put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.”
28. In the present case, when considering the evidence against the accused on count one, the judge described the main elements of the evidence against the accused on that count and continued:

“... so accepting the Crown case at its most favorable, I am satisfied there is evidence capable of supporting a conclusion beyond reasonable doubt the accused is guilty” and continued by quoting the last two sentences of paragraph [19] set out above. That was a correct statement of the test.

29. However, he then moved on to deal with circumstantial evidence and continued:
    • “Again this is circumstantial evidence upon which the prosecution may rely. It still remains, however, for the prosecution to prove the case beyond reasonable doubt although, considering this no case submission, I am satisfied the circumstantial evidence taken at its highest leads to that conclusion.”
30. It was an unfortunate addition to a hitherto correct statement of the test for no case. We appreciate the reference by the judge that “it still remains for the prosecution to prove the case, etc.” might have been intended as a reference to the position at the end of the case as a whole. However, a court must take care always to ensure such directions are clear and unambiguous. Unfortunately, the manner in which the judge had, prior to consideration of count one, already considered the evidence relating to the test in respect to counts three and four, to which we will return below, makes such a generous interpretation unlikely.
31. It is perfectly clear that there was, in fact, sufficient evidence to find a case to answer on count one and so there is no necessity to take the matter further on that count.
32. The judge refused the submission of no case in respect of count one and gave the accused the opportunity to discuss with his lawyer whether or not to give evidence. The accused elected to remain mute and call no witnesses and the judge moved on to consider the case once more but, this time, against the test, appropriate at the conclusion of the case as a whole, of proof beyond reasonable doubt.

Ground four: the finding of no case on counts three and four

33. It is necessary first to consider the offences of murder and attempted murder and the requisite intent in each.
34. Murder is an offence under section 200 of the Penal Code:
    • “200. Any person who of malice aforethought causes the death of another by an unlawful act or omission is guilty of murder ...’
35. Malice aforethought is defined in section 202:
    • “202. Malice aforethought may be express or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused and it may exist where that act is unpremeditated-
    • (a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or
    • (b) Knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.”
36. Section 215 of the Penal Code provides the separate offence of attempted murder:
    • “215. Any person who-
    • (a) attempts unlawfully to cause the death of another; or
    • (b) with intent unlawfully to cause the death of another does any act, or omits to do any act which is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony ...”
37. As can be seen the necessary intent in a case of murder is one of the intentions identified in section 202 whilst the only intent that can constitute attempted murder is an intention to cause death.
38. At the close of the prosecution evidence, the judge found no case to answer in respect of both the murder of Chris Saeni Orea and the attempted murder of Chris Saeni Jnr. The evidence in both cases was similar in that the accused had used a submachine gun to spray three bursts of bullets across the front of the police station. In considering the evidence, the judge was required, in accordance with the tests explained in Tome and Somae, to determine whether those acts, taken at their most favorable to the prosecution case, could be capable, if accepted by the court, of supporting a conclusion beyond reasonable doubt that the accused was guilty of the offences charged; namely murder and attempted murder.
39. The only assessment of the quality of the evidence was to determine whether, if accepted in the trial as a whole, the evidence would be capable of proving guilt beyond reasonable doubt. Consideration of the defence evidence is no part of that decision.
40. The trial judge set out his reasoning in some detail but, far from assessing the probative effect of the prosecution evidence should it be believed in the case as a whole, he gave the appearance of effectively measuring it against the defence case - a test for the end of the overall case and one which was totally inappropriate in an assessment of a case to answer:
    • “The accused admits there is evidence that on 30 April he used an automatic weapon to shoot up the Auki Police station and that one of the shots struck and injured Chris Saeni Orea Jnr. Mr. Lawry [counsel for the accused] went on to say “the evidence shows that the prisoners had been taken from the cells to a room referred to as the pantry where they were fed. There is no evidence that the area where the cells were, was damaged by bullets. There is no evidence from which the applicant could be taken to know that the prisoners were in the pantry. There is no evidence that the applicant even knew that Chris Saeni Orea was at the police station at all and certainly no evidence that he had an intention to kill him. In fact there is no evidence on which it could be inferred that he intended to kill anyone at all. The Court of Appeal in Alagere v R said:
    • “Any inference made when it is adverse to an accused in a criminal trial must be the only available inference. That is to say that there is no other inference available consistent with innocence. Anything less that this is no more than an educated guess. The court went on to repeat what had been said in Shepherd v The Queen; it will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and where it is helpful to do so to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.
    • The DPP’s submission emphasised the effect to be inferred, that by spraying with a machine gun, in the manner described, an intention to kill was made manifest.
    • The evidence by witnesses does suggest the accused said words to the effect “where are they”. An inference may be drawn that he was speaking of particular police officers. The evidence suggests that no persons were to be seen about the front of the police station when the accused commenced spraying the building apparently indiscriminately in spite of the DPP’s assertion. There is no doubt however that the shooting resulted in the death of Orea and the injury to Chris Saeni Orea jnr. The DPP has to satisfy the court by evidence, that the accused had an intention to cause the death of or grievous bodily harm to any person whether such person is the person actually killed or not.
    • For I am not concerned with the second part of section 202 of the Code for there is absence of evidence of knowledge in the accused of the whereabouts of these persons in the very room struck by the spraying bullets. The intention to cause the death of or grievous bodily harm to any person must be shown beyond reasonable doubt. ... In this case, I am not satisfied that the accused may be seen to have foreseen the natural consequences of his acts in spraying bullets across the front of the building, bullets that would penetrate the building in particular places and by chance, bullets or fragments would hit persons inside, unseen by the assailant. The spraying may reflect an intention to show his ability and power to inflict damage by force through the use of such a weapon, an inference available although inconsistent with the judicially considered “intent” to be found when considering murder or intent to murder.
    • I consequently accept the defence arguments in relation to both counts three and four.”
41. Those remarks by the judge have caused us considerable disquiet. It would not be an overstatement to say that the judge’s directions on these two counts were almost totally incorrect. This case involved a terrible attack made in wanton disregard of any harm it might cause to innocent people. There was no dispute that the accused had brought and used a powerful gun to spray bullets on the police station building resulting in the death of an innocent man and the infliction of a serious head wound to his son. The suggestion by the judge that there was no evidence on which it could be inferred that he intended to kill anyone at all totally disregards the second limb of malice aforethought and the manner in which the judge almost casually distances himself from that paragraph of section 202 is startling.
42. The result is that the test the judge applied to the submission of no case was almost diametrically opposed to the correct test. He appears to approach his analysis of the evidence as if seeking only to find explanations of the defendant’s conduct. The result is that his ruling reverses the true test.
43. His adoption of the passage from Alagere v R [2015] SBCA 22 on the manner in which inferences should be considered seems mainly to be to allow him to speculate on reasons why the evidence might not demonstrate an intention to kill. The Alagere direction correctly describes how inferences should be considered but it is a test that is applicable at the conclusion of the evidence as a whole; it is a direction to a jury as to how they should treat such evidence at the time when the jury is deciding whether the evidence proves the case beyond reasonable doubt.
44. In adopting that direction at the no case stage, the judge led himself into error in two ways; first, by failing to follow the proper test from Tome and Somae, and, second, by apparently speculating on possible inferences to suggest the actions of the accused might show an intention less than to kill or cause grievous bodily harm. Rather than looking at the prosecution evidence to consider its effect if taken at its highest, he reverses the test and emphasises what he sees as possible reasons why the defence evidence might be credible.
45. Instead of considering the DPP’s submission that, on the undisputed evidence of the attack, an intention to kill was manifest, the judge variously stated:
    • “The DPP has to satisfy this court by evidence, that the accused had an intention to cause the death of or grievous bodily harm to any person”;
    • “The intention to cause the death of or grievous bodily harm to any person must be shown beyond reasonable doubt”; and
    • “I am not satisfied the accused may be seen to have foreseen the natural consequences of his acts”
46. Nowhere does he discuss or appear even to consider the strength of the prosecution evidence or the likelihood that, taken at its highest, it would be capable of amounting to proof beyond reasonable doubt of guilt.

Ground 3: the failure to give verdicts on counts three and four

47. When the judge had found no case to answer on counts two, three and four and the accused had exercised his right to remain silent, the judge had to reconsider the evidence on count one against the burden of proof beyond reasonable doubt. He did so thoroughly and explained his reasons in a detailed judgment at the conclusion of which he entered a verdict of not guilty of the Soaki murder. The defence suggest that the judge erred in failing to enter a verdict on counts three and four.
48. At the end of his ruling on no case to answer he did, in fact, state that he accepted the defence argument in relation to both counts three and four. The only argument prior to that had been the defence submission that there was no case to answer on the Saeni Orea murder or the attempted murder of Chris Saeni Jnr.
49. Whilst it is usual to give a verdict at the end of a trial, we see no reason why it cannot be given if and when the court finds there is no case to answer on another charge in the same case.
50. In the present case, the judge took the unusual course in respect of the charge of the Orea murder, after he found no case to answer, of convicting the accused of the alternative lesser offence of Manslaughter under the provisions of section 159 of the Criminal Procedure Code. He explained:
    • “In this case, in relation to the alternate verdict of manslaughter available under the lesser offence provisions of the Criminal Procedure Code, and as conceded by counsel and upon being satisfied the elements of the offence of manslaughter have been made out beyond reasonable doubt I convict the accused of the offence of manslaughter of Saeni Rea at Auki Police station on 30 April 2003.”
51. It is clear the judge erred. By convicting the accused immediately after he had found no case to answer on the murder charge and without asking him to plead or address the court, the accused was convicted without having had any opportunity to defend the new charge. However, we were advised from the Bar table that the accused had offered to plead guilty to manslaughter at the outset of the trial and it was known that he still maintained that intention.
52. There is no appeal against the procedure adopted and we do not consider it requires any further comment save to point out the error.
53. When the judge convicted the accused on the Orea manslaughter, he also stated that “the accused is acquitted and discharged on the count of the attempted murder of Chris Saini Orea Jnr.
54. Both these decisions would have been better left to the end of the trial and a formal verdict entered but we do not consider the timing resulted in any injustice.

Ground five: the amendment to count two

55. When the court was ruling on the submissions of no case to answer, the judge dealt with count 2 – escape from lawful custody in the following terms:
    • “This count may shortly be dealt with for it had been brought under section 199 of the Police Act 2013 an Act which did not come into force until 2014. The arrest was made on 6 March 2003. The accused was arrested on 15 October 2015 ... The Act however under which he had been indicted came into force on 1 March 2014, some ten years after the escape. He...could not have been subject to the offence charged.”
56. The chronology is undisputed and so the offence originally charged under the Police Act 2013 could not stand. However, counsel agree that, during the trial and near to the end of the prosecution case, an application was made to amend the charge to one contrary to section 125 of the Penal Code and the judge acceded to the request.
57. The judge appears to have overlooked that and so there was no verdict given on the charge under section 125. Although the prosecution has asked the Court to send the case back for trial, we do not consider there is any point in such a course and decline to make such an order.

Ground six and seven: sentence

58. At the conclusion of the trial and after a careful and detailed sentencing judgment the judge concluded:
    • “The various cases given me as indicative of the range in which this “offending “falls, may be distinguished. This offence is one beyond what may be described as offences involving individuals where life has been taken. This involves direct threat to the institution of the State, the RSIP and, for that reason, the range of those other manslaughter sentences is not applicable here. It is unnecessary to refer to them.
    • The Court of Appeal in Ludawane v R addressed appropriate matters to consider when determining a minimum term of imprisonment to be served when sentencing for murder. The scheme adapted for guidance in this jurisdiction was set out in detail and while mandatory life sentences, unlawful killing of this nature by a policeman may also be categorized as most, very and less serious. This case falls within the most serious category. The prisoner’s culpability to use the phraseology of the judgment, is exceptionally high.
    • In murder cases, the Court of Appeal has reduced a term of 20 years to 18 before consideration of parole. In this case before me, life imprisonment is available and the aggravating factors which lead me to a sentence approaching that awarded in Ludawane’s case are the planned attack by an automatic weapon by a policeman, a fugitive from justice; on a police station causing the death of an innocent person wholly disconnected from the prisoner’s expressed intention to manifest his callous attitude towards those policemen at the station; freely spraying the building with bullets. Such gratuitous violence reflects the personality evidenced by witnesses throughout the trial. ...
    • All the circumstances shall determine an appropriate sentence. The knowledge resting in this man, as a police officer with his years of service must give rise to his accountability.
    • He shall be sentenced having regard to his accountability...
    • The appropriate starting point, for a killing in these particular circumstances as a most serious case, is 20 years. The sentence for possession of the firearm, to which he pleaded guilty, shall be 6 months, to be served consecutively to that sentence for manslaughter of 20 years.”
59. We have considered the authorities which counsel’s industry has brought before us. Many do not help in a case such as this because of the magnitude of the crime and we accept it was an appropriate sentence.
60. For the reasons we set out in our conclusions below, we do not feel justice requires any further intervention in this matter.

Conclusion

61. This was a case where the evidence was seriously affected by the very long time it took to bring the accused to justice. That was entirely in the hands of the prisoner, but it resulted in difficulties with the witnesses and the overall presentation of the case.
62. The conclusions we have formed in this judgment would, in many appeals, result in an order to return count 4 to the High Court. We have considered that option. Section 23 of the Court of Appeal Act sets out the powers of this Court in determining appeals against conviction but not against orders of acquittal. We adopt, however, similar principles. We turn to consider whether the interests of justice (as referred to in section 23 (2)) would be best served by ordering a new trial. Should that be done, the delays which bedevilled the trial we have been considering would be substantially increased by the additional years that have now passed since the offences. It should be clear from this judgment that many points raised in the appeal might be decided in favour of the Appellant yet we decline to order a new trial as we do not consider that the interests of justice would be served in so ordering.
63. We therefore order that the appeal and the cross appeal be dismissed without any further order.

Goldsbrough P
Ward JA
Wilson JA