Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal

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1 Friday, 22 September 2017 Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary Sexius v The Attorney General of Saint Lucia (UKPC) - criminal law - defence disclosure - whether disclosure infringes right to a fair trial - whether disclosure infringes the presumption of innocence or is incompatible with human rights - authorities considered - legislative provisions upheld - appeal dismissed DPP (NSW) v Nikolovski (NSWSC) - criminal law - intimidation - police officer - choice of statutory offences - magistrate dismissing charge - prosecutor s appeal - elements of offences considered - choice of charge within prosecutor s discretion - matter remitted Goodenough v State of Victoria (VSC) - criminal law - wrongful imprisonment - plaintiff negligently injured while wrongly imprisoned - settlement agreed to - plaintiff pardoned - whether damages should be paid directly to plaintiff - declaration that pardon preserved plaintiff s common law rights Dennis v The Queen (VSCA) - criminal law - child pornography - assessment of objective seriousness - sentencing principles identified - Verdins principles considered - causal link between mental impairment and offending not established - order for accumulation constituted error - appeal allowed - appellant resentenced Henderson (a Pseudonym) v R (VSCA) - criminal law - tendency - admissibility - interlocutory appeal - tendency relied upon too general - ruling set aside Sharman (a Pseudonym) v The Queen (VSCA) - criminal law - child sexual offences - Page 1

2 complainant unable to provide a statement - admissions/ confession by appellant - whether entitled to sentence discount where offence known to investigators - error identified - appeal allowed - appellant resentenced Copeland v Watson (WASC) - criminal law - bias - appellant, who represented herself, appealed her conviction for a speed offence - grounds of appeal included apprehended bias and interference with proceedings - grounds dismissed - appellant ordered to pay costs in fixed amount Harvey v Bofilios (NTSC) - criminal law - Prasad - directed verdict of acquittal - prosecution appeal - nature of prosecution appeal considered - Prasad considered - acquittal a determination of fact - appeal dismissed Summaries With Link (Five Minute Read) Sexius v The Attorney General of Saint Lucia [2017] UKPC 26 Judicial Committee of the Privy Council Lord Mance, Lord Kerr, Lord Hughes, Lord Hodge, Sir Ronald Weatherup (NI) Criminal law - defence statement - privilege against self-incrimination - appellant was charged with murder - in accordance with s 909 Criminal Code St Lucia (Code) the appellant was ordered to file and serve on the office of the Director of Public Prosecutions (DPP) a Defence Statement - the appellant failed to file the statement and at a second case management hearing was advised by the court that adverse inferences could be drawn if he failed to do so (s 912 Code) - the appellant filed a Constitutional Motion challenging the constitutionality of sections 909 & 912 of the Code - the High Court of Justice in St Lucia upheld the appellant s application, declaring the sections incompatible with the Constitution of St Lucia - the Attorney General appealed that decision to the Court of Appeal, which held the sections compatible and the appellant then appealed to the Privy Council - Ch1 of the Saint Lucia Constitution concerns the protection of fundamental rights and freedoms, including (s8) the right to a fair hearing, the presumption of innocence and the accused s protection against being compelled to give evidence at trial - s584 Code requires an arrested person to be informed of their right to remain silent - held:(1) disclosure scheme - the scheme for Defence Statements takes its form from the Criminal Procedure and Investigation Act 1996 (England, Wales & Northern Ireland) - the duty of primary disclosure by the prosecutor leads to the requirement for a Defence Statement from the accused, which in turn leads to secondary disclosure by the prosecutor - default by the accused may lead to comment by the court, or other parties and the drawing of adverse inferences against the accused - the contents of the Defence Statement require disclosure, in general terms, of the matters in issue and the reason why each matter is an issue - there must also be particulars of any special defence, which includes notice of alibi, duress, automatism, necessity, insanity or any defence affecting liability, which appears to embrace any defence - the default provisions concern the failure, or delay, in providing the Statement and inconsistency Page 2

3 between the Statement and the evidence at trial; (2) right to silence - there is no universal or absolute right to silence (see R v Director of Serious Fraud Office; ex parte Smith [1993] 1 AC 1, 30E) - here, the Board was concerned with the appellant s claim of a right to pre-trial silence in respect of the giving of advance notice of any defence and issues to be raised at trial - in essence, the appellant argued that the rights in issue were constitutional rights and that the relevant sections of the Code were incompatibles with a right to a fair hearing - the Board was satisfied that the sections did not compel an accused to give evidence (R v Tibbs [2002] Cr App R 309 considered) - by the Defence Statement the accused is being required to give advance notice of the case intended to be made at trial - if the accused does not propose to offer a defence, but requires the prosecution to prove the case, then the Statement may state that - if the accused proposes to offer a defence, then the Statement must set that defence out in general terms, indicating the matters the accused takes issue with and why - the provisions do not impact on the accused s right to silence - the accused is not compelled to give or call evidence - the accused is (only) required to give advance notice of the nature of the defence and the issues raised; (3) presumption of innocence - R v Lecky ([1944] KB 80); Thebus v State ([2004] 1 LRC 430); Murray v United Kingdom ((1996) 22 EHRR 29) considered - the onus remains on the prosecution throughout - the requirement of advance disclosure of any positive case is entirely consistent with the presumption of innocence; (4) right to a fair trial - Murray v United Kingdom and article 6 European Convention on Human Rights considered - it is only if the evidence against the accused calls for an explanation, which the accused ought to be in a position to give, that a failure to give that explanation may, as a matter of common sense, allow the drawing of an inference - R v Bryan ([2004] EWCA Crim 3467) approved - see also R v Daha Essa [2009] EWCA Crim 43; R v Rochford [2011] 1 WLR 534; (5) determination - the impugned provisions do not involve a limitation on the right to a fair hearing under article 8(1) Constitution - nor do they involve a limitation of the presumption of innocence under article 8(2), or a limitation on the right not to be compelled to give evidence under article 8(7) - nor do they involve a limitation on the privilege against self-incrimination - if they did, then the provisions are reasonably directed towards a clear and proper public objective - appeal dismissed. [see ss24, 25 Charter of Human Rights and Responsibilities Act 2006 (Vic); ss21, 22 Human Right Act 2004 (ACT).] Sexius DPP (NSW) v Nikolovski [2017] NSWSC 1038 Supreme Court of New South Wales Adamson J Criminal law - intimidation - DPP appealed (s56(1) Crimes (Appeal and Review) Act 2001 (NSW)) an order made by a Local Court Magistrate, dismissing a charge of intimidation - the magistrate found that the respondent had made intimidating statements to a police officer, including remarks of a sexual nature about his wife and that his conduct had actually intimidated the officer, but dismissed a charge of intimidation (s13(1) Crimes (Domestic and Personal Violence ) Act 2007 (NSW)(CDPV Act)) - the magistrate found that the charge should have been laid under s60(1) Crimes Act 1900 (NSW) because the victim was a police officer acting in Page 3

4 the execution of his duties - held: (1) where 2 offences may overlap - here, no assumption could be made that Parliament intended the specific provision (s13(1) CDPV Act) to override the general provision (s60(1) Crimes Act 1900) - the provisions have different elements and there is nothing in the legislative history, or extrinsic materials, which provides any warrant for the conclusion reached by the Court below that s13(1) was to be read down by reference to s60(1) where the alleged victim was a police officer - it followed that the only question was whether the prosecution had proved, to the requisite standard, the elements of the offence - all it needed to establish about the identity of the victim was that he was a person ; (2) elements of each offence - the principal distinction between s13(1) and s60(1) is that the prosecution must prove, in respect of a s60(1) offence, that the defendant intimidated the victim - the term intimidation bears its ordinary meaning - for a s60(1) offence the prosecutor must prove both that the defendant intended to intimidate the victim and that the defendant s conduct had the effect of intimidating the victim ( Meller v Low (2000) 48 NSWLR 517, [10]-[11]; R v Manton (2002) 132 A Crim R 249, [6]-[12]; DPP (NSW) v Best [2016] NSWSC 261, [50]) - by contrast, although the prosecutor needs to prove as an element of an offence against s13(1) that the victim was intimidated, the word intimidation is defined so as to alter its ordinary meaning - thus the prosecutor is not required to prove that the alleged victim actually feared physical or mental harm (s13(4) CDPV Act) - if the defendant s conduct causes a reasonable apprehension of injury to a person (s7(1) CDPV Act) it does not matter whether defendant s conduct caused such an apprehension as the test is objective - when dealt with summarily both offences are subject to the jurisdictional maximum of 2 years imprisonment & a maximum fine of 50 penalty units (s268 Criminal Procedure Act 1986 (NSW)); (3) prosecutor s discretion - the choice of which charge to prefer is solely one for the prosecuting authorities and not for the courts (Magaming v The Queen (2013) 252 CLR 381, [20], [25]) - the reasons why a prosecutor s discretion to decide what charges are to be laid is not susceptible to judicial review, derive in part from the need to ensure that the impartiality of the judicial process sis not compromised (Barton v The Queen (1980) 147 CLR 75, 94-5; Maxwell v The Queen (1996) 184 CLR 501, 534, Magaming v The Queen [68]); appeal allowed; matter remitted to Local Court. Nikolovski Goodenough v State of Victoria [2017] VSC 543 Supreme Court of Victoria Keogh J Criminal law - wrongful imprisonment - in 1993 the plaintiff was convicted of driving while suspended and imprisoned for 2 months - during his imprisonment he was subjected to 2 separate assaults and he sustained injury - he sued the State of Victoria, alleging that his injuries were caused by its negligence - the claim was settled by agreement, the State agreeing to pay the plaintiff $ 240,000 - sometime after his conviction it was revealed that he had never been validly suspended and the traffic infringement notices which had formed the basis for the suspension of his licence were set aside - in 2013 the plaintiff was granted a pardon in the exercise of the Royal Prerogative of Mercy, on the basis of satisfaction that a miscarriage of justice had occurred - the issue to be determined in the present proceedings was whether the Page 4

5 $240,000 damages were caught by Part 9C Corrections Act 1986 (Vic) (the Act), which provides that awards of damages made to prisoners are to be paid into a quarantine fund for payment to victims and other creditors of the prisoner, the prisoner only receiving any balance left in the fund after those payments have been made - held: Part 9C considered - the main purpose of the Part examined - s104p(1) provides that Part 9C applies to an award of damages to a prisoner in respect of a claim made by the prisoner against the State of Victoria for a civil wrong - a prisoner is someone in legal custody and if Part 9C applies, the agreement to settle a proceeding is of no effect until approved by a court - Part 9C operates to cause very significant interference with the common law rights of a prisoner - existence of the prerogative to pardon is recognised in Part 9 of the Sentencing Act 1991 (Vic) - the Royal Prerogative of Mercy may be exercised, as it was here, to grant a free, or unconditional, pardon - it is a prerogative that lies solely within the discretion of the Crown (see Estaman v DPP (ACT) (2003) 214 CLR 318, [98]; R v Cosgrove (1948) Tas SR 99, ; Re Royal Commission on Thomas Case [1980] 1 NZLR 602, 620) - the prerogative power of the Crown will only be curtailed by clear and unambiguous words (Barton v Commonwealth (1974) 131 CLR 477, 488) - there are no express words in the Act which have the effect of abrogating, or curtailing, the power to grant a free pardon - nor is there anything in the Act which leads to the necessary implication that the prerogative power to pardon is limited or curtailed - if Part 9C applied to the plaintiff, then he would suffer further injustice resulting from the interference with his common law rights - the pardon operates to remove the consequences of Part 9C and nothing in the Act abrogates or curtails the operation of the pardon - declaration that the Act does not apply to the payment of damages and legal costs to the plaintiff contemplated by settlement of the proceedings. Goodenough Dennis v The Queen [2017] VSCA 251 Court of Appeal of Victoria Kyrou & Hansen JJA Criminal law - child pornography - severity appeal - appellant pleaded guilty to possessing and accessing child pornography and failing to comply with reporting conditions under Sex Offenders Registration Act 2004 (Vic)(SORA) - appellant was sentenced to an effective term of 4 years 6 months, NPP 2 years 6 months - appellant was granted leave to appeal the severity of the sentence - grounds of appeal included that the judge erred in finding the offending in respect of counts 1 & 3 was objectively very serious, that the offending was escalating and by failing to apply the principles set out in R v Verdins ((2007) 16 VR 269 (Verdins)) - the pornographic material included videos assessed on the Australian National Victim Identification Library (ANVIL) as ranging from Level 1 (children without sexual activity) though to Level 5 (sadism) - most of the children were of prepubescent age - 1,370 images and 217 videos had been accessed and the appellant had previously been convicted in other States of aggravated sexual assault and pornography offences - there was evidence that the appellant s offending behaviour had commenced around the time he was involved in a motorbike accident, but he did not have a disorder of impulse control that made him disinhibited - his neuropsychological condition was not such that he was unable to understand the wrongfulness of his conduct - Page 5

6 held: (1) objective seriousness - the principles relevant to sentencing for child pornography offences are set out in DPP (Cth) v Garside ([2016] VSCA 74, [25] (Garside)) - the assessment of objective seriousness of the offending cannot be reduced to a mathematical comparison of the number of pornographic images and videos accessed, or possessed, by the offender relative to other cases - it must be assessed having regard to the circumstances of the offending, considered in the light of the sentencing principles applicable to the case as illustrated by the authorities (see Garside) - the mere fact that the number of images accessed and possessed by the appellant was moderate when compared to other offenders, did not automatically mean that the offending could not be described as very serious - here, the judge applied the correct principles - in respect of both charges the number of images was very large, they involved images in each ANVIL category and involved many child victims, including toddlers; (2) the finding of escalating offending - the words used by a judge in sentencing should not be construed as if they ae in a statute, a will or a deed - rather, their meaning should be ascertained by reading the sentencing remarks as a whole and having regard to the need for expedition and succinctness in formulating them - allowance must be made to occasional looseness of language, particularly when their remarks are delivered ex tempore - here, when the sentencing remarks were read as a whole it could be inferred that the judge used the word escalating loosely in the sense of persistence because the appellant s offending showed no sign of abating, despite the fact that he had been sentenced for similar offending previously - ground not made out; (3) manifest excess - despite the appellants neuropsychological condition, low intelligence and mental health issues, he knew that what he was doing was unlawful and could result in a lengthy prison sentence - in light of the evidence, the judge assessment of the risk of re-offending as moderate to high and the emphasis that had to be given to the protection of young vulnerable children, the proper exercise of the sentencing discretion required the judge to impose a substantial prison sentences for counts 1 & 3 - while the individual sentences were at the top of the range, they were reasonably open to the sentencing judge - however, there was not a complete overlap in the offences which were the subject of counts 1 & 3 and while some accumulation was required, the judge s cumulation of 12 months was disproportionate to the total offending and thus the sentences were manifestly excessive - error identified - ground upheld; (4) Verdins - in Verdins the Court set out 6 ways in which impaired mental functioning will be relevant to the exercise of the sentencing discretion ([32])- the scope and limitations of the principles in relation to limbs 1 and 4 are set out in DPP v O Neill ((2015) 47 VR 395, [74]-[75](O Neill)) - this ground was not made out - the expert evidence that engaged the Verdins limbs related only to court 2 and provided no support for counts 1 & 3 - the appellant s moral culpably in relation to the offending which was the subject of counts 1 & 3 was not affected by his mental impairment because the expert specifically found that he was able to understand that what he was doing was wrong - the causal link required by O Neill in order to engage Verdins could not be satisfied; (5) resentence - 3 years 9 months, NPP 2 years. Dennis Henderson (a Pseudonym) v R [2017] VSCA 237 Page 6

7 Court of Appeal of Victoria Beach, Ferguson & Coghlan JJA Criminal law - tendency - admissibility - applicant and complainant had been in a relationship for some years - the relationship involved violence - the applicant was charged with a number of offences, including common assault, threat to kill, rape, intentionally and recklessly causing injury - the complainant gave a 22 page statement to the police several months prior to the events out of which the current charges arose - that statement included allegations of violence and sexual misconduct by the applicant - the prosecution intended to rely upon this statement at trial - the applicant opposed this and the judge ruled that it was admissible as context and relationship evidence - the Crown then served a Tendency Notice upon the applicant, seeking to rely upon the statement as tendency evidence - the tendency was particularised as a tendency to mistreat and abuse the complainant and to physically put her in fear - the judge certified that her rulings concerned the admissibility of evidence that if ruled inadmissible would eliminate, or substantially weaken, the prosecution case (s295(3) Criminal Procedure Act 2009 (Vic)) - the applicant sought leave to appeal from the judge s ruling - held: (1) tendency evidence - IMM v The Queen ((2016) 257 CLR 300); Hughes v The Queen ([2017] HCA 20); Bauer (a Pseudonym)(No2) v The Queen [2017] VSCA 176) referred to - here, the Crown was seeking to prove a tendency in general terms to engage in physical and verbal violence towards the complainant - in defining the tendency the Crown appeared to have taken the various acts of violence and abuse described in the statement and then arrived at a form of words which covered those acts and the acts for which the applicant was then facing trial, to produce an alleged tendency that was, in any view, expressed in wide terms - this tendency appeared to be no more or less than what might be described as the tendency of abusers in abusive relationships to engage in similarly abusive behaviour towards their partners, or former partners - the judge erred in admitting that evidence - if the Crown is to be permitted to rely upon tendency evidence in this case it will need to define more specifically the tendency which it asserts in order to relate that tendency to a particular charge - judge s ruling set aside - appeal allowed. Hughes v The Queen [2017] HCA 20; Bauer (a Pseudonym) v The Queen. Henderson Sharman (a Pseudonym) v The Queen [2017] VSCA 241 Court of Appeal of Victoria Redlich & Tate JJA, Croucher AJA Criminal law - child sex offences - appellant, who was in his early 60s at the time of the offending, sexually assaulted his granddaughter when she was aged 7-8 years and his grandniece - he pleaded guilty to offences of indecent act with a child under 16 (s47(1) Crimes Act 1958 (Vic)); possession of child pornography (s70(10 Crimes Act 1958) - appellant was sentenced to 22 months, NPP 15 months - one of the complainant s was too distressed to participate in a police interview or to provide a statement - the appellant participated in 2 police interviews and in the second made admissions - the appellant appealed the severity of his sentence - held: (1) whether error occurred in not applying the principle in of R v Doran( [2005] VSCA 271) - in respect of count 1, the Crown accepted that the appellant was entitled to a Page 7

8 degree of leniency as the information provided by him made his offending more serious (Latina v The Queen [2015] VSCA 102, [17]) - in respect of count 2, the public interest that attaches to a plea of guilty which rests upon a confession and the right to considerable leniency in such circumstances, is not confined to cases where the crime is unknown to investigators before the confession is made, or the complainant does not have the capacity to give admissible evidence - the weight to be given to an admission rest on the likelihood not only of the offence being discovered, but also guilt being established against an offender in the absence of an admission (R v Ellis (1986) 6 NSWLR 603, 604) - even in relation to crimes known to the investigators, the offender has a right to a significant discount where by his admissions he provides proof of an offence which the prosecution could not otherwise have established (Dawson v The Queen [2015] VSCA 166, [39]; Younan v The Queen [2017] VSCA 12, [39]) - intermediate appellate courts in other states and territories have consistently applied an Ellis discount to a plea of guilty, which rests upon a confession with respect to a known crime, where the guilt of the offender could not otherwise be established - the capacity of the complainant the subject of count 2, who was aged 7 when she refused to give a statement, did not affect the appellant s right to leniency arising from his confession - the appellant s voluntary admissions required a demonstrable discount on both counts - as the judge did not make any reference to such a discount, error was established - appeal allowed - appellant resentenced to 16 m months, NPP 10 months. Sharman Copeland v Watson [2017] WASC 261 Supreme Court of Western Australia Jenkins J Criminal law - appellant, who represented herself, was convicted of exceeding the speed limit - a mobile speed camera had detected her vehicle travelling at kph in excess of the applicable speed limit - on appeal, the appellant argued, inter alia, that the magistrate had demonstrated bias and had assisted the prosecution - held: (1) apprehended bias - the test to be applied is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question to be decided (Johnson v Johnson (2000) 201 CLR 488, [11]) - the transcript demonstrated that the magistrate did not guide the prosecutor, nor assist the witnesses to give their evidence - the magistrate did attempt to assist the appellant - assessing the transcript, the court was satisfied that a fair-minded lay observer would not reasonably apprehend that the magistrate might not bring an impartial and unprejudiced mind to the resolution of the matter - ground not made out; (2) whether the magistrate interfered in the proceedings - it was appropriate that the magistrate made rulings on evidence - the obligations on a magistrate dealing with a self-represented litigant were satisfied (Tobin v Dodd [2004] WASCA 188, [13]-[14]) - ground not made out; (3) costs - s14(1)(h) Criminal Appeals Act 2004 (WA) provides that the Supreme Court may, in deciding an appeal, make an order as to costs - the general power to award costs is constrained by s 20 - s 20 does not apply to the costs of a police officer responding to an offender s appeal - the general effect of the Act is to confer upon the court a general and Page 8

9 unconstrained discretion to award costs in relation to an appeal from a magistrate, subject to s 20 (Wilson v McDonald [2009] WASCA 39) - the general discretion should not be construed as importing a general rule that costs ordinarily follow the event - rather, subject to s20, the discretion is to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest - here, the only relevant public interest was that the right of appeal conferred by the Act on a convicted offender should not be rendered nugatory by the risk of the offender being deterred from prosecting an appeal out of fear of having a large costs order made against them if the appeal was unsuccessful - however, here the appellant was wholly unsuccessful and the grounds of appeal relied on were unmeritorious - further, the respondent s costs of the appeal were increased by the appellant s incorrect insistence upon who the correct respondent should have been - appellant to pay the respondent s costs in the fixed amount of $ 2,500. Copeland Harvey v Bofilios [2017] NTSC 68 Supreme Court of the Northern Territory Grant CJ Criminal law - drug offences - supply - respondent was found not guilty in the Local Court of 3 charges relating to the supply of MDMA (s 5(2)(a)(iv) Misuse of Drugs Act (NT)) - the prosecutor appealed (s163(3) Local Court (Criminal Procedure) Act (NT)) - held: (1) s163(3) appeal - there is a historical presumption against a legislative intent to confer a right of appeal against a judgment of acquittal - that presumption operates with less force in relation to acquittals in summary proceedings (Australian Securities and Investments Commission v Vis (2000) 77 SASR 490) - the section confers a right of appeal, however that avenue of appeal remains subject to the limitations which govern prosecution appeals generally ( Pearce v The Queen (1998) 194 CLR 610, [54]) - that principle of restraint applies to summary proceedings and to both sentence and acquittal appeals - this type of appeal is also limited to an order or adjudication which connotes a final order and excludes attempts to review interlocutory orders and evidentiary rulings - a no case acquittal will only be susceptible of challenge on the basis of an erroneous evidentiary ruling in circumstances where that evidence would otherwise have established a case to answer - in those circumstances, the evidentiary ruling will be instrumental in the order or adjudication for acquittal (Holder v Lewis (2003) 231 LSJS 431) - these limitations are summarised in Peach v Bird ((2006) 159 A Crim R 416, [12]) - proviso referred to - here there was fault on the part of the prosecutor in failing to have regard to the extended definition of supply and although the no case submission by the defence was predicated upon an erroneous conception of supply, the prosecutor had opened on an incorrect basis and that error was not corrected - appeal ground dismissed; (2) R v Prasad ((1979) 2 A Crim R 45) - a Prasad acquittal is distinguished from circumstances where there is no prima facie case - whether or not to enter an acquittal on Prasad grounds is a matter of fact not law - the second limb submission is a reference to the High Court decision of May v O Sullivan ((1955) 92 CLR 654) - a submission in those terms may be made where the prosecution has established a prima facie case, but the evidence lacks sufficient cogency or Page 9

10 reliability, so that the application of Prasad is warranted and the evidence is arguably incapable of excluding reasonable doubt so that there is no need to go into evidence to support the finding of reasonable doubt - here, the Local Court s determination may only be disturbed on the ground of error of law, or error of mixed fact and law - the entry of an acquittal on Prasad grounds was a determination of fact and not one of law or mixed law and fact - there is no error of law involved in making a wrong finding of fact or drawing an illogical inference, so long as the finding is not one that could only be made by an irrational tribunal acting arbitrarily - that was not the case here - appeal dismissed. Harvey Page 10

11 Powered by TCPDF ( To One Who Has Been Long in City Pent BY JOHN KEATS To one who has been long in city pent, 'Tis very sweet to look into the fair And open face of heaven, to breathe a prayer Full in the smile of the blue firmament. Who is more happy, when, with heart's content, Fatigued he sinks into some pleasant lair Of wavy grass, and reads a debonair And gentle tale of love and languishment? Returning home at evening, with an ear Catching the notes of Philomel, an eye Watching the sailing cloudlet's bright career, He mourns that day so soon has glided by: E'en like the passage of an angel's tear That falls through the clear ether silently.? Click Here to access our Benchmark Search Engine Page 11