HKSAR v. NGUYEN ANH NGA

CAC C 258/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 258 OF 2011

(ON APPEAL FROM HCCC NO. 91 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Stock VP:

1.  On 23 June 2011 the applicant was convicted after trial before Line J and a jury of trafficking in dangerous drugs. She was sentenced to 26 years’ imprisonment. She now seeks leave to appeal both conviction and sentence.

2.  It was common ground that the applicant, a Vietnamese national, travelled on 2 September 2010 from Benin to Kenya and then from Kenya to Hong Kong, arriving here on the morning of 6 September 2010.  She had been booked to fly on to Cambodia that day.

3.  At the airport in Hong Kong she was stopped and asked whether the suitcase which she was carrying belonged to her at which point she started to cry.  The suitcase was searched and in a hidden compartment was found 3.03 kg of methamphetamine hydrochloride.  She was arrested and cautioned and said that the property found did not belong to her.

4.  She was then interviewed.  In that interview she said that the boyfriend of her younger sister in Vietnam had engaged her to carry US dollars from South Africa to Cambodia for a reward of US$1,500.  She needed the money, so she agreed.  She had seen inside the suitcase, had noticed only clothing but had not seen where the US dollars had been placed.

5.  This, in effect, was the same as the account given in her testimony.  In her evidence she said that she had travelled to the southern part of the African continent though she was not able to say to which city or country.  After some days, she was given the suitcase and an air ticket for her return journey.  She put her clothes in the suitcase.  She had expected to fly directly back to Cambodia and the routing via Hong Kong transpired to be a mistake but once the mistake was discovered it was too late to change the flight.

6.  It follows that the issue at trial was whether it was proved to the requisite standard that the applicant knew before and upon her arrival in Hong Kong that she was carrying dangerous drugs.

7.  The primary ground of appeal is directed at the fact and content of a written handout provided by the judge to the jury at an early part of his summing-up.

8.  Having directed the jury as to the respective functions of judge and jury and of the burden and standard of proof he said this :

“Let me come to the law now. This part of the summing-up I am going to give you in writing. It is very simple, in fact, but it is quite a lot still to just keep in your heads when it is convenient to copy this part and give it to you in writing. Do not think that because you have this bit in writing, it is more important than the other directions I have given you. It is just that this is harder to remember and it is there so that you can look at it and remind yourself of my words when you retire. What I am going to do is to read this through to you. You can put it aside and just listen to me or you can read the words and follow along, as you wish.”

9.  This is what was contained in the handout:

“1. It will be no surprise to you that bringing ice hidden in a suitcase into Hong Kong is against the law. There is no dispute that the defendant did so. Person who do so will be guilty of the crime of trafficking in a dangerous drug if they knowingly do so.

2. The important word is knowingly. The law requires that the guilty act, the importation of the ice into Hong Kong, be accompanied by a guilty mind. The prosecution must establish the guilty mind by making you sure that the carrier of the ice knew that she was carrying dangerous drugs if you are to convict.

3. The prosecution do not have to prove that the ice belonged to the defendant in the sense of owning it, or that she herself put the drugs in the hidden compartment or did anything other than knowingly bring them into Hong Kong. It is no defence that the ice was intended for some other country, such as Cambodia, and not distribution in Hong Kong.

4. The prosecution do not have to prove that the defendant knew the name or identity of the drug, whether it was ice, ecstasy, heroin or whatever, or how many grams of it there were. It is sufficient for the prosecution to prove that the defendant knew that the substance she carried was a dangerous drug of some sort. They do not have to prove that she carried out some scientific analysis of the ice. True drug couriers do not carry out scientific tests when they carry dangerous drugs for others but they may know full well what they are up to in the circumstances.

5. The defendant’s case is that she believed she was carrying US dollars in a hidden compartment in the suitcase and that she knew nothing of the presence of the ice. The prosecution must make you sure that is not so if you want to convict.

6. Proof only that the defendant suspected that she was or may be carrying dangerous drugs is not enough, for knowledge must be proved. However, if someone was asked to smuggle something in a hidden compartment you may think it could cause them to inspect what they were given to carry.

7. A failure to inspect or verify the items carried is not to be equated with knowing that they were dangerous drugs, but it is a fact that you may take into account from which, in the context of all the other facts that you may find proved, you may infer such guilty knowledge.

8. Inferences against an accused are only to be drawn if they are the only reasonable inferences in the circumstances. Whether you draw any inference here is up to you. It is recognised that an inference of guilty knowledge may be drawn or strengthened where a carrier has evidently avoided getting confirmation which he neither wanted nor indeed needed and where in common sense and in truth he or she knew.

9. The question of suspicion is also something that you can consider in the context of the facts. Whether you do so or not is up to you. The way it is available for use is to consider whether the owner or supplier of the ice, with its retail value of over $2 million, would consider that an innocent courier’s suspicions may be aroused in the circumstances you find to exist here. Would he take the risk of an innocent courier inspecting what he was given, thereby risking the loss of his drugs, either to the authorities or to the courier himself or herself by disposal of them in panic or for his own profit, rather than pay someone trusted with the knowledge.” (The emphasis is added)

10.  The essence of the complaint in relation to this handout is that written handouts tend to be accorded greater attention than oral directions and whilst that is not objectionable if restricted to points of law or precise questions to be asked and answered at the end of the day, it is objectionable if such a handout incorporates comments on the facts, especially when those comments tend against the accused’s case, unbalanced by written reference to countervailing considerations.

11.  The resolution of such a complaint must always be case-specific but Mr Ross, who appears for the applicant, takes his theme from the judgment of this Court in Chan Ka Wai v HKSAR [2005] 3 HKLRD 117 in which the Court said:

“14. It is common, and can be helpful, for a judge to frame directions as to law, or to delineate the matters that have to be proved before a jury may properly convict a defendant. But what happened in this case was most unusual and in our judgment unsatisfactory.

15. Written handouts carry with them the judge's seal of approval and therefore the likelihood of particular weight. Furthermore, they are documents that the jury takes with them to their room for the purpose of deliberation. One trusts that a jury will recall the important points of an oral summing-up, but one can rest assured that its members will study what is in writing before them. This is unobjectionable in relation to points of law, because points of law are the province of the judge, and because the law can be stated very precisely and is generally uncontroversial. So too, the study of written directions is unobjectionable where they take the form of precise questions, tied to the case-specific issues of law, that the jury should seek to answer in arriving at their verdict; such, for example, as are quite regularly used in murder cases where a host of alternative issues arise for determination. Yet such written directions are not judgemental as to facts. They are precise statements of the law, and of the questions that in a particular case must be answered one way or another. However, when a judge crosses the line into discussions of fact, he treads upon the province of the jury. That is acceptable insofar as he is required to present a balanced summary of the testimony, and it is also acceptable for him to proffer, within recognised parameters, comments upon that testimony. But, for him to place before the jury, under whatever cautionary rubric he may, written lists of factual pointers which are stated to be a list of those matters which in his view in fact favour the prosecution, and those which in his view in fact favour the defence, he courts the distinct danger of lending undue weight to his evaluation of the facts. These are lists that the jury will take with them to the jury room. These are lists that the jury will study and may well view, by reason of their provenance and reduction to writing, as almost definitive of the points that should carry true or particular weight or that they should study. This becomes especially so when the facts or points are chosen by the judge from amongst others that might be made. It is one thing for a judge orally to put to a jury competing submissions and to comment upon them, but quite another to put them forward in writing as in fact having value – for that is the effect of a handout of this type; and it should not be thought that the formulation “matters which you may wish to consider” or “it is a matter for you” or a phrase along those lines, is a mantra that will inevitably overcome these dangers.”

12.  The nature of the handout in that case was significantly different from the handout in this particular case and there was no direction in that case that what was in the handout was not to be treated as any more significant or important than what was not.  Nonetheless the circumstances in which an appellate court might become concerned are illustrated by the cited passages.

13.  The nature of the handout in this case was unusual.  The handout usually given is a rather precise statement specifying the elements of the offence or providing specific questions which the jury should ask itself and answer in order to arrive at a true verdict.  The fact on its own that the handout in this case is not of that type is not objectionable. The first five paragraphs and the first sentence of the sixth have the same effect and are stated by reference to the facts of this case, all in a manner which can only be described as helpful and central to the case.  Further, I accept that the points made in those paragraphs, points of law, being quite a few in number and of central importance, might more readily be retained in the minds of the jury by spelling them out in black-and-white, than by mere oral delivery.  

14.  I am however less able to understand why the judge found it necessary to move, in the handout, to commentary on the facts.  Two comments in particular – and they were comments, not law – stand out as comments which sit cogently and centrally against the applicant.

15.  It was the applicant’s case that she did not inspect the contents of the suitcase save cursorarily and even then not by looking in any hidden compartment where, on her account, the money was supposed to be hidden.  As to which the judge said in his written handout: “ … if someone was asked to smuggle something in a hidden compartment you may think it would cause them to inspect what they were given to carry.”  The point is well made but it is hardly a point that needed to be in the handout.  The judge had explained to the jury that his handout was a handout as to law and that his handout was a set of directions and, further, were reduced to writing because they were of a nature which otherwise the jury might not find as easy to remember.  But in relation to the comments which I have emphasized:

(1) they were not directions of law, they were comments on the facts;

(2) there was nothing difficult about the comments in terms of inherent susceptibility to erroneous recollection, any more so than other comments made by the judge in his summing-up or than submissions made by counsel; and

(3) the written comments were not balanced by countervailing arguments such as, perhaps, the effect of the applicant’s lack of education or the trust she may have reposed in her “sister”.

16.  The last point made by the judge in the written handout was that it was for the jury “to consider whether the owner or supplier of the ice, with its retail value of over $2 million, would consider that an innocent courier suspicions may be aroused in the circumstances you find to exist here.  Would he take the risk of an innocent career inspecting what he has given, thereby risking the loss of his drugs, either to the authorities or to the courier himself or herself by disposing of them in panic or for his or her own profit, rather than pay someone trusted with the knowledge?”  This was not law.  It was comment in the form of what was probably the most powerful point against the applicant’s story.  And it was a comment of which the jury was specifically invited to remind itself by looking at it, as well as other matters in the handout, when they retired.

17.  Since the comments I have highlighted would not in themselves have been objectionable had they been left as oral comments, the question is: what is the harm that arises just because they were reduced to writing and given to the jury to take with them?

18.  In my opinion, the risk of harm arises in this way.  Our system is one in which a summing-up is delivered orally, as are submissions by counsel.  When it comes to the significance and weight to be attributed to evidence, comments that are made in the course of submissions by counsel and in the course of a summing-up which appear to a juror as worthy of note will tend to be noted by that juror.  The jury is told that comments, whether made by counsel or by judge, are for them to accept or reject as they see fit and it should not be the case that comments by the judge on the evidence should, merely because they emanate from the judge, carry more weight with a jury than comments by counsel.  They may carry more weight if they happen to be intrinsically more cogent, but that is a different matter.  Counsel’s speeches are not reduced to writing other than for counsel’s own reference when he or she makes the speech.  They are not provided to the jury in hard copy or taken by the jury into the jury room, so as to facilitate their recollection of cogent points in favour of the prosecution or the accused, as the case may be.  And the judge’s comments on the facts are similarly not reduced to writing for the jury to take with them, not least because doing so will have a tendency to elevate their status to one greater than counsel’s submissions and may well, to adopt a phrase used by Mr Ross, continue to ‘talk’ to the jury more vividly than submissions or comments not taken with them in writing.

19.  Directions as to law are altogether different.  In their regard, jurors are told by the judge that directions of law come from him or her alone, not from counsel, and are binding on the jury.  And those binding directions as to law are often reduced to writing because they may be complex and will be foreign to a jury.  Handing them to the jury to take with them for their deliberations serves a useful purpose and it matters not that they acquire a status above that of such suggestions as to the law as counsel may have advanced; for, as a matter of law, directions on law have that higher status.

20.  This is not to say that there is never a case in which comments as to fact might be acceptable in a handout. I would not wish to set a hard and fast rule because case specific circumstances are so unpredictable and varied.  But I have highlighted the danger of doing so and I suggest that as a general rule it be avoided.

21.  In this case, I fail to see what need there was for the comments to be handed out or what benefit was thought to flow from it.  Conversely, I see the very risk to which I have alluded.  The judge told the jury that he was handing them directions as to law; yet they were partly law and partly comment.  Counsel’s speeches were not handed to the jury and the judge’s other comments, whether for or against the applicant’s case, were not handed to the jury.  And against this background, that part of the handout devoted to comment, particularly the last comment, was (though valid) striking in its likely effect on the accused’s case. 

22.  I do not think that it helps to point to the sentence in which the judge said in his oral delivery that just because the jury had this bit in writing, it was not to be considered more important than other directions.  The judge has described them – all of them – as “directions” and has specifically said that they are there because they were hard to remember and that the handout was given to the jury “so that you can look at it and remind yourself of my words when you retire.”  We can readily assume that they took up that invitation, looked at them, and paid especial attention to them without a reference in them to such pointers as were advanced in the applicant’s favour.  I think it unsafe to speculate on the effect this had, for which reason I am of the view that the complaint is made out.

23.  I have had the advantage of reading in draft the judgment of Wright J.  I do not agree it with save for the observation that the fact that counsel at trial took no point in relation to the handout is relevant and the accompanying observation that the absence of objection is not determinative of the issue at hand.  A repeated theme of the judgment is the trial judge’s reminder to the jury that the jury should not think the written handout to be more important than other parts of the summing-up and his comment to them that what they made about the issue of knowledge and the question of suspicion were matters for them.  In this regard I would acknowledge that such directions and reminders are important but the effect which they have must always be viewed realistically in the context of the summing-up as a whole and the nature of the impugned passages.  

24.  Phrases such as that upon which Wright J places such emphasis are not an all-circumstance panacea.  Depending on the issue at hand and context they may be reminders to which one attaches considerable and even determinative weight.  At the other end of the spectrum – depending on the issue at hand and context – they may be meaningless mantras.  Of course, as Wright J correctly remarks, one expects and is entitled to assume that juries follow directions.  But, as a matter of reality, there is a limit to that expectation and entitlement, for when it comes to impact upon a jury it is reality rather than legalistic analysis which ultimately matters.  An assessment of likely impact is not always an easy matter but where there is a realistic danger of an impermissible adverse impact, which is material to the safety of the conviction, it must be resolved in favour of the convicted defendant; and that is so in any case, let alone one such as this where a defendant was sentenced to 26 years imprisonment.

25.  In Justins v The Queen (2010) 204 A Crim R 315 at 355, a decision of the Supreme Court of New South Wales presided over by Spigelman CJ, Simpson J said, at 355, that:

“Written directions are, in my opinion, a most useful, important, and, in some cases, crucial, development in the conduct of criminal trials. That is, in part because of the increasing complexity and length of criminal trials. It is also a recognition that juries, in the past, were expected, in an unfamiliar environment, to absorb what amounted to a lecture on legal theory (sometimes of considerable complexity) and the facts of the particular case, and that this was unfair both to the jury and to the accused (and sometimes also to the Crown). But it must also be remembered that the jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions.”

26.  That, with respect, addresses the reality of the matter.  And the reality in this case was that this jury was given this piece of paper with an express invitation to remind itself of the words in it when they retired; and the words of which they were asked to remind themselves when they retired included the question which, as stated, begged but one answer: “Would [the owner or supplier of drugs with a retail value of over $2 million] take the risk of [giving the drugs to] an innocent courier” with the risk that the courier might inspect what he or she was given, the owner of that expensive haul of drugs “thereby risking the loss of his drugs, either to the authorities or to the courier himself or herself by disposal of them in panic or for his own profit, rather than pay someone trusted with the knowledge ?”  That is how the document ended, in a case in which the defence was that the applicant was an courier oblivious of the presence of drugs given to her by for someone who was, necessarily on this defence, was prepared to take the risk of losing a highly valuable quantity of drugs if the applicant discovered that she had been tricked into carrying drugs.  In my judgment, the impugned comments had no place in a handout, described as directions, to be taken into the jury room, and to be studied by the jury.

27.  Accordingly, I would grant leave, treat the hearing of the application as the appeal, and allow the appeal.

Hon Cheung JA:

28.  I agree with the judgment of Stock VP.

Hon Wright J:

29.  The primary ground of appeal relates to two short passages in a written handout provided by the judge to the jury.  In the light of the decision of the majority it is unnecessary for me to deal with the other ground of appeal: suffice it to say that I am unpersuaded it has merit.

30.  I have had the opportunity of reading, in draft, the judgment of the Vice-President with which I understand Cheung JA agrees.  I accept the general principles outlined by the Vice-President.  It is upon the application of those principles to the present matter that we diverge. The facts which led to the prosecution of the applicant appear sufficiently from the judgment of the Vice-President.

31.  Prior to traversing the handout with the jury, the judge explained the purpose of the handout emphasising, specifically, that because the contents had been reduced to writing the jury should not think them to be more important than other directions which he gave during the summing-up. That passage is reproduced at §8 above.

32.  At §9 above the full terms of the handout appear with the impugned passages emphasised in this judgment but not in the handout.  They are the final 15 words of paragraph 6 and the final two sentences of paragraph 9 of the handout out of a summing-up which runs to 16 pages.  The record shows that it took the judge 33 minutes to deliver.

33.  Mr Ross, who appeared for the applicant in the appeal but not below, accepted that the impugned passages in the handout were not objectionable in and of themselves.  Had the judge omitted them from the handout but then used exactly the same words, orally, immediately after he had traversed the handout there could be no objection by the applicant: they are unexceptionable, commonsense remarks commonly passed by judges dealing with trials of this nature.  The only issue, then, is whether the fact of inclusion of the impugned words within the handout had, or potentially had, such an influence on the jury as to render the conviction unsafe.

34.  Resolution of complaints of this nature must always be case specific; see §11 above.  The complaint must also be viewed in the context of the case and of the summing-up as a whole.  There are three matters of significance which, in my judgment, are relevant to the context in which the handout was furnished to the jury.

35.  First, the record shows that the handout had been provided, in advance, to both prosecuting and defence counsel – each seasoned in criminal practice – in order that they would be able to comment upon it should either have wished to do so.  A draft handout had been given to counsel on 22 June 2010 which was replaced by the handout in its final form on the 23 June before the summing-up commenced.  The draft handout had omitted that which appears as paragraph 3 in the final handout.  The impugned passages appeared in both the draft and the final handout in identical terms save that that in paragraph 9 referred, in the final handout, to “his or her own profit”, the draft referring to “his own profit”.

36.  Prior to commencing his summing-up there was an exchange between the judge and counsel in the absence of the jury during which the judge referred to amendments made to the handout and during which he specifically asked counsel whether either of them wished to say anything about the handout.  Each replied in the negative.  Whilst their lack of objection to, or comment on, the contents of the handout, whether at that time or at the close of the summing-up having heard the context in which the judge referred to the handout, cannot be decisive of this application, in my judgment it is a factor which should be taken into account when determining whether the conviction was safe and satisfactory.  They had conducted the trial; had observed the jury during the trial; were best placed to address the judge on any adverse effect they perceived the handout may have on the decision-making process to be undertaken by this particular jury.

37.  Second, it is to be noted that early in his summing-up and immediately before distributing the handout to and traversing it with the jury the judge had said:

“It is my job to tell you what the law is and how to apply it. As to the law, you must accept what I tell you and follow the directions that I give you, but as to the facts – what you make of all the evidence you have heard, what you make of her story, what you make about the issue of knowledge, those are factual matters – that is for you. It is for you to decide what you accept, what evidence you reject, what you are unsure about.

If I appear to have a view of the evidence or of the facts and you do not agree with that view, reject what you think my view is.  If I mention or emphasise evidence which you think is unimportant, disregard the evidence.  If I do not mention evidence that you think is important, follow your own view and take that evidence into account.”

[Emphasis supplied]

38.  This was in the form recommended by the specimen directions formulated by the Judicial Studies Board.  As was necessary in this trial, the judge emphasised that the issue of the applicant’s knowledge was a matter for the jury.

39.  Third, the structure of the handout itself simply demonstrates a progression of explanation.  In paragraph 6 of the handout the judge starts by explaining to the jury that mere suspicion on the part of the applicant would be inadequate.  The evidence before the jury was uncommon in matters of this nature, in my experience, for the applicant admitted that she knew there was a secret compartment concealed in the suitcase which is generally a fact vigorously contested.

40.  It is noteworthy that, as can be seen in §9 above, paragraph 7 then goes on to explain, correctly and thus without objection from Mr Ross, that such a failure to inspect the contents of a known secret compartment is indeed a matter which the jury is entitled to take into account in drawing the inference of guilty knowledge.

41.  Having, in paragraph 7, told the jury that, the judge then went on to explain inferences to the jury.  That comprised paragraph 8.  Paragraph 9 is a continuation of the judge’s warning that mere suspicion is inadequate for the purposes of conviction, first given in paragraph 6.  Whilst the impugned portion of this paragraph is not a direction on law per se, the matters which the judge raises are important issues for the jury to understand to avoid the danger of conviction of the applicant simply on the basis of suspicion rather than actual knowledge: they are an amplification of the warning given earlier.

42.  What is significant is that immediately prior to the impugned words appears:

“The question of suspicion is also something that you can consider in the context of the facts. Whether you do so or not is up to you.”

[Emphasis supplied.]

43.  In my judgment, to have omitted the criticised passages at this stage but to have reverted to them subsequently would have made it more difficult for the jury to follow what the judge was saying and to comprehend that although they could not use a fact for one purpose they were entitled to use it for another, allied, purpose and would have resulted in the summing-up being disjointed.  In short, the passages flowed naturally.

44.  Mr Ross, in my view, sought to place too much reliance upon and to extend the effect of the decision of this court (Woo V-P, Stock and Tang JJA) in HKSAR v CHAN Ka Wei [2005] 3 HKLRD 117: see the extract at §11 above.

45.  The circumstances which prevailed in regard to the handout in that case were radically different from the present in three singular aspects: first, there had been no reminder at all, let alone repeated reminders as there were in the present case, that the facts were matters for the jury including, specifically, the state of the applicant’s knowledge – the timing of those warnings in the present summing-up can hardly be said to have reduced their status or effectiveness to that of mere mantras; second, there had been no warning to the jury in CHAN that the written handout was to carry no greater weight than other oral directions – as there had been in this case; third and perhaps of greatest significance, in CHAN the judge had produced a series of handouts, including two purportedly detailing matters “for the prosecution” and “against the prosecution”.

46.  That this was an aspect which particularly troubled the court is apparent from the following at 123 I, §15, where appears:

“But, for him to place before the jury, under whatever cautionary rubric he may, written lists of factual pointers which are stated to be a list of those matters which in his view in fact favour the prosecution, and those which in his view in fact favoured the defence, he courts the distinct dangerous depending on due weight to his evaluation of the facts.”

[Original emphasis.]

and the subsequent discussion of the effect of these two documents.

47.  There can be no suggestion that in the present matter the judge was expressing his evaluation of the facts: he was explaining to jury members how they could approach and, if so minded, use the admitted failure to inspect the secret compartment known to be in the suitcase and the question of suspicion for the purpose of drawing an inference.

48.  It is also clear from §§16 - 19 of CHAN that the court further regarded the handouts as incomplete and omitting factual matters worthy of consideration behalf of the defence case: no similar criticism has, or can be, passed in the present matter.  The factual situation in regard to the handouts in CHAN is distinguishable from the present.

49.  There is no suggestion that in any other respects the present summing-up was defective or unbalanced: the judge reminded the jury what the applicant had asserted during an interview with officers from Customs and Excise shortly after her arrest and also dealt, in considerable detail, with her testimony

50.  Mr Ross submitted that in the very nature of things the handout, in his phrase, “would continue to speak to the jury” whilst it was in the jury room.  Well, yes.  That was why the judge told the jury that he was giving them the handout – as a matter of easy reference for them.  What the submission ignores is that the judge was clear in his directions to the jury that the written handout was not to be taken as any more important than anything else he said.

51.  Implicit in Mr Ross’s criticism, and in order for his submission to succeed, it is necessary to accept that the jury would have ignored the express injunction given by the judge not to attribute greater significance to them.  Such a submission runs contrary to the convention, fundamental to jury trials, that juries will comprehend and follow the directions given by them to the judge.

52.  In my judgment, when viewed in full context, both internal to the handout and external to the summing-up as a whole, and against the background of the judge’s warnings to the jury, there was no prejudice or potential prejudice caused to the applicant’s case at trial by the inclusion of the impugned passages in the written handout.

53.  There was no danger, in my judgment, that the jury would have taken those very brief passages and given them the focus and emphasis to which they have been subjected in this application.

54.  There is nothing unsafe or unsatisfactory about this conviction.  I would dismiss the application.

Hon Stock VP:

55.  The applicant is granted leave to appeal against conviction, the hearing of the application is treated as the appeal and, by a majority, the appeal is allowed and the conviction set aside.  We order that the appellant be retried upon an indictment alleging the same offence and she is remanded in custody pending the retrial.