APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Carloway Lord Bonomy	[2010] HCJAC 103 Appeal No: XC703/09 OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD OSBORNE in APPEAL AGAINST CONVICTION AND SENTENCE by DAVID BAILLIE McMILLAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Jackson, Q.C. et J. MacDonald; Culley & McAlpine, Perth

Respondent: Miss Shand, Q.C. A. D.; Crown Agent

12 October 2010

The background circumstances

[1] On 20 November 2008 the appellant appeared in Perth Sheriff Court to answer an indictment containing two charges. The appellant was then represented by counsel. He pled not guilty to charge (1) and guilty to charge (2). These pleas were accepted by the procurator fiscal depute. The terms of charge (2) were as follows:-

"(2) Being subject to an interim sexual offences prevention order granted at Perth Sheriff Court on 27 May 2008 in terms of the Sexual Offences Act 2003 prohibiting you inter alia from having unsupervised contact with any female child or accosting or molesting any female child, you did between 28 July 2008 and 2 August 2008, both dates inclusive, at 17 Glenearn Road, Perth, 24 St Catherine's Square, Perth or elsewhere in Perth and Kinross, to the prosecutor unknown, without reasonable excuse breach the terms of said order in that you did repeatedly over the course of several days send text messages and make telephone calls to MLM, requesting her to meet you, repeatedly invite her to your home and indicate to her that you had drugs and alcohol at your home; contrary to the Sexual Offences Act 2003, section 113(1)(b)."

[2] The procurator fiscal depute then moved the court for sentence. He placed before the court a notice of previous convictions applying to the appellant. These convictions were 12 in number. Significantly they included a conviction recorded on 3 June 1996 in the High Court in Glasgow of rape, and assault to severe injury, permanent impairment and the danger of life, which attracted a sentence of 9 years detention in a young offenders institution; a conviction recorded on 18 April 2006 in Perth Sheriff Court in respect of a charge of breach of the peace, prosecuted on indictment, which attracted the imposition of a probation order of 3 years duration and a restriction of liberty order of 12 months duration, requiring the appellant to remain within his home on a daily basis between the hours of 7pm and 7am; and a conviction recorded on 1 December 2006, again in Perth Sheriff Court, in respect of a charge of breach of the peace, prosecuted on indictment, which attracted a sentence of imprisonment of 18 months, subject to a supervised release order with a requirement that the appellant did not have unsupervised contact with any female child under the age of 16.

[3] The procurator fiscal depute then proceeded to give a history of the case and a narrative of the circumstances which had led to the bringing of charge (2) in the indictment. They were as follows. The appellant had been liberated from custody imposed in respect of his immediately antecedent conviction on 18 July 2008. The complainer in charge (2) in the indictment was MLM, a 14 year old vulnerable female, who was then residing in care at a place of safety. She did not know the appellant and had never met him. She owned a mobile telephone and had formed a friendship with a Mr Cuthbert. Her mobile telephone number was stored on Mr Cuthbert's mobile telephone. Mr Cuthbert's mobile telephone got into the possession of a Mr Handley. Subsequently it got into the hands of the appellant. Over the period from 28 July to 2 August 2008, the appellant contacted MLM, first by sending blank text messages and then by a voice call during which he asked her to meet him at a place in Perth. There followed repeated voice calls and text messages to her mobile telephone from the appellant. He called himself "Baillie". On each occasion he asked MLM to meet him, either at the library, or at his home address. He gave her his address and on at least two occasions told her that he had alcohol and drugs available there. He gave MLM a physical description of himself and told her that she "sounded really nice". MLM became worried about the appellant's persistence in contacting her and at no time did she agree to meet him nor did she in fact meet him.

[4] The mobile telephone had been recovered by Mr Handley. There was subsequently contact between MLM, Mr Cuthbert and Mr Handley, which included various conversations about the appellant making calls. On one occasion MLM met Mr Handley in a public place and during their meeting she received a further text message from the appellant asking her to meet him that evening. There were further attempts by the appellant to make contact with the complainer. She became increasingly alarmed, particularly in the light of what Mr Handley had to told her about the appellant's background and past.

[5] The matter came to the attention of the authorities as a result of a missing person enquiry relating to the complainer. She was reported missing on the evening of 6 August 2008 by the social work department. Police enquiries were made to trace her whereabouts. In the early hours of 7 August 2008, Mr Handley was arrested by police on an unrelated matter. He disclosed details of the contact that the appellant had had with her. That led to Mr Cuthbert being traced and interviewed. MLM herself was thereafter traced and at that time she was asked by the police to make a full statement, which she did, making a formal complaint in respect of the appellant's behaviour. When traced by police at his home address, the appellant was advised that the police officers were making an enquiry into a vulnerable missing person and was advised as to the information that police officers then had. He claimed that he had never been in contact with MLM and did not know her.

[6] Following further police enquiries, the appellant was detained in respect of the matters which became the subject of charge (2) in the indictment. Whilst on route to the police office, the appellant made reference to the incident. Being reminded that he had been cautioned, he then said: "I'd like you to ask the officer speaking to the girl to ask her the specific question, if she ever told me her age". This was the first occasion on which the appellant had admitted to police officers that he had in fact been in contact with MLM. He was asked about that and he admitted having sent text messages to her and spoken to her, but said that they had never met. He said "I thought she was 19 or something". He made a reference to Mr Handley saying: "I did not know that Danny [Mr Handley] was running about with 14 year olds". When interviewed, the appellant admitted contact with MLM. He did not accept that he had initiated the contact, but when presented with the evidence of the blank text messages, suggested that they had perhaps been sent in error. The appellant maintained his position that any contact by him with MLM had been on the understanding that she was 19 years of age, or about 19. The procurator fiscal depute advised the sheriff that Mr Handley was, at the material time, 20 years of age.

[7] Thereafter the sheriff was addressed by counsel for the appellant. He emphasised that MLM had not told the appellant her age and that the appellant believed her to be 19 years old, or thereabouts, rather than 14. Counsel for the appellant went on to say the following:

"Now it's a very anxious consideration by me given to whether or not that state of mind constituted a reasonable excuse in terms of the section, but after that consideration I reached the view that it does not constitute a reasonable excuse in terms of the section but, nevertheless, it is something which is or can, very properly and very fairly be put in my submission of mitigation, because it distinguishes between what, on one view, is inappropriate and clearly somewhat objectionable conduct on the part of the panel from the situation where the panel knowingly, and consciously, pursued a minor female, and it will be my position in mitigation that it was the former rather than the latter".

[8] The sheriff adjourned the diet of 20 November 2008 until 18 December 2008, in order to obtain a social enquiry report, a community service assessment, a restriction of liberty order assessment and a report by a psychologist. The appellant was remanded in custody. Having received the reports, which included a psychological assessment report by Dr Ewan Lundie and Claire Robinson, dated 17 December 2008, the sheriff remitted the case for sentence to the High Court of Justiciary. It was by virtue of that remit that the appellant appeared before the sentencing judge sitting at Edinburgh on 9 January 2009. At that time, a report from the sheriff to the High Court was available, in which he explained his reasons for making the remit. There he said inter alia:

"The reports were available on 18 December 2008 and it was the information contained in the reports, taken along with the record of the accused and the circumstances of the offence, that made me decide to remit. I did not do so because I thought the accused should receive more than 5 years imprisonment for the offence, since the maximum sentences is 5 years, but I was concerned about the risk posed by the accused in this case. I took the view that section 210E of the Criminal Procedure (Scotland) Act 1995, ["the 1995 Act"], might come into play in this case. That section contemplates a remit to your Lordships court under section 195 if the conditions set out in [section] 210E apply. The section sets out what the 'risk criteria' are, namely that 'the nature or circumstances of the commission of the offence...either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large.'

As I said, I obtained social enquiry and psychological reports as well as a Tay Project Assessment Report. All three reports are unanimous that the accused poses a serious risk. At page 4 of the social enquiry report the reporter describes him as being a very high risk of both committing further offences and of causing actual harm and he sets out five reasons for saying so. Later at page 5 the reporter suggests an extended sentence with a very long list of substantial conditions and on the last page there is the sentence 'the court will be left in no doubt that all interested parties had serious professional concerns about the potential for harm carried by this man'.

At page 4 of the Tay Project Assessment Report, the reporter agrees with the assessment from the social enquiry report and regards the overall risk of reoffending as very high and expresses the view that all sexually abusive behaviour was considered harmful either directly or indirectly.

Lastly, on the second last page of the psychological report, the reporter refers to the risk opposed by the accused as being a very high risk of significant sexual harm to others which view was supported by the risk matrix RM2000. A description is given of what that risk means in real terms. The reporter suggests that high levels of monitoring and supervision were necessary and an in-depth sex offending programme required to be completed by the accused. He should be treated as a high priority case.

The accused has a record which includes a serious conviction for rape for which he ultimately received a sentence of nine years imprisonment and although he was released on parole, it can be seen that a period of one year was reimposed on 21 November 1996. He subsequently had two at least charges of breach of the peace involving sexual matters. In this case although a Sexual Offences Prevention Order had been granted on an interim basis, he had breached it.

When considering how to deal with this matter, I noted in the social enquiry report a suggestion that an extended sentence be imposed containing a substantial list of conditions to be fulfilled by him on release from a custodial sentence. Some of the conditions, including one requiring him to attend the Tay Project and one prohibiting his having any unsupervised contact with any female child and not to accost or molest any female would have been appropriate to impose although some others may have been less so. I would have been able to impose up to a total extended sentence of five years imprisonment plus five years extended sentence if one had been competent but my understanding of section 210A(10) is that this offence is not included in the definition of sexual offence and obviously does not fall under the definition of violent offence and so in my view an extended sentence unfortunately is not competent. Furthermore section 113(3) of the Sexual Offences Act 2003 prohibits the Court in Scotland from making a probation order in relation to an offence under section 113. Thus the only supervision type sentence which I could have imposed would have been a supervised release order but the maximum period of supervision would have been one year and I do not think there would have been time to complete the type of course contemplated by the Tay Project in that time. These difficulties fortified me in my view that it would be appropriate to remit the case to your Lordships Court to see whether the provisions contained in section 210B-210E might provide the solution. It seemed at least possible that a risk assessment order could be obtained under section 210B(1)(b)."

[9] When the case came before the sentencing judge on 9 January 2009, that judge expressed concern as to whether the plea of guilty tendered by the appellant and accepted to charge (2) in the indictment was consistent with the position that he had taken up from an early stage, that he was not aware that he was contacting a female under the age of 16 years. Having expressed this concern, the sentencing judge adjourned the matter on several occasions for the purpose of enabling the appellant to obtain appropriate advice and to take any action which appeared appropriate to his legal advisors. The appellant then received advice from several different counsel, but, on 23 February 2009, he withdrew his instructions to counsel, indicating to the sentencing judge that he wished to represent himself. After discussion on that date, the sentencing judge made an order in terms of section 210B(2) of the 1995 Act, the sentencing judge taking the view that, subject to being persuaded to the contrary, he required to deal with the case upon the basis of the conviction following the plea of guilty, and having formed the view that the offence to which the appellant had pled guilty was of such a nature that, having regard to all the information before him, including the previous convictions of the appellant it indicated that he had the appearance of a person with a propensity to commit a sexual offence as defined in section 210A(10) of the 1995 Act.

[10] The case next called before the sentencing judge on 22 May 2009. However, in view of the fact that the risk assessment which he had requested was not then available, he adjourned the matter for sentencing until 30 July 2009. At that latter hearing the appellant advanced the position that he rejected the proposition that his behaviour was psychologically determined and that therefore he could be regarded as presenting a risk of sexual offending. He requested that he might be sentenced immediately, but the sentencing judge did not accede to that request. On 30 July 2009 a further adjournment was made, in the absence of the necessary report, to 28 August 2009, by which time the appellant was represented by counsel. He sought an opportunity to consider the risk assessment report, which, by then had become available.

[11] The case next called before the sentencing judge on 1 October 2009, but, on that occasion, the appellant withdrew his instructions from counsel. The case was adjourned until 2 October 2009 to enable the sentencing judge to consider the several reports available to him and in order to allow the appellant to prepare to make any submissions he might wish to make in mitigation. On 2 October 2009, the appellant advanced a plea in mitigation in which he asserted that he was innocent of the crime to which he had pled guilty on account of having accepted erroneous legal advice. He contended that the risk assessment report has been unlawfully obtained. However, the sentencing judge took the view that he had to deal with the case on the basis of the appellant's plea of guilty.

[12] Having regard to the sources of information to which he was required to have regard in terms of section 210F(1) of the 1995 Act, the sentencing judge was satisfied that the risk criteria set out in section 210E of that Act were met in the case of the appellant. Accordingly he made an order for lifelong restriction in respect of him. The punishment part of the sentence was fixed at 18 months imprisonment to commence on 8 August 2008, when the appellant was first remanded in custody. That figure for the punishment part was arrived at after allowing a discount in respect of the appellant's plea of guilty and in the light of other considerations.

Grounds of appeal
[13] The appellant has lodged a note of appeal, in which he appeals against his conviction in respect of charge (2) in the indictment which he faced and also against sentence. The appellant's sole ground of appeal against conviction, with which alone this opinion is concerned, is in the following terms:

"1. The appellant tendered a plea of guilty to charge (2) on the basis of erroneous advice given to him by his legal representatives. From the outset, the appellant has consistently maintained that he honestly, albeit mistakenly believed the complainer to be 19 years of age. That explanation afforded the appellant a 'reasonable excuse' as per the libel of the charge. He was wrongly advised that his explanation did not afford him a defence to the charge but could be used in mitigation towards sentence. On that basis the appellant accepted the advice given and tendered a plea of guilty. Both the sheriff and the learned judge to whom his sentence was remitted in the High Court of Justiciary, expressed their concerns about the plea tendered on the basis of the mitigation presented in court. The appellant tendered his plea under error of law and has been prejudiced as a result. Accordingly in respect of the appellant's conviction for breaching an interim sexual offences prevention order, there has been a miscarriage of justice."

Submissions on behalf of the appellant
[14] Senior counsel for the appellant began by outlining the lengthy procedural history of this case. He emphasised that the plea of guilty in this case was not what he described as "a plea of convenience". The position was that a view had been taken by counsel then representing the appellant regarding his guilt of the offence alleged in charge (2) of the indictment. It was submitted that, so far as that charge was concerned, the sine qua non of the offence was the age of the female individual. He submitted that the legal advice initially tendered to the appellant had been erroneous. The only relevant consideration was the age of the child. Section 113(1) of the Sexual Offences Act 2003 contained the words "without reasonable excuse", which was an essential ingredient of the offence. Thus, it was submitted that the appellant's factual position was not consistent with his plea of guilty.

[15] In these circumstances the issue was whether the plea of guilty could be withdrawn. In that connection senior counsel relied upon Bowes v Procurator Fiscal, Aberdeen 2010 SCCR 657, paragraph 23; also Healy v HMA 1990 S.C.C.R. 110, and Duncan v HMA 2009 SCCR 293.

Submissions of the Crown
[16] The Advocate depute emphasised that the present appeal was one brought against conviction under section 106 of the 1995 Act. Accordingly it was necessary for the appellant to demonstrate a miscarriage of justice in order to succeed. As the law stood, there having been a plea of guilty as the basis of the conviction, there were only three situations in which an appeal could succeed:

(1) Where a plea of guilty had been entered without the authority of the accused person;

(2) Where the plea of guilty was offered under real error or misconception; or

(3) In circumstances where there was real prejudice to the accused, amounting to a miscarriage of justice.

The Advocate depute submitted that none of these situations existed in the present case. The Advocate depute submitted that the advice given to the appellant by counsel in Perth Sheriff Court was not erroneous. There was no basis for the appellant to hold a reasonable believe that MLM was an adult. The matter of a "reasonable excuse" in terms of section 113(1) had to be raised by the defence. There was simply no basis for such an excuse. The appellant had no information relating to the age of his correspondent.

[17] The Advocate depute then drew our attention to certain authorities relating to situations where an appellant sought to challenge a conviction based on a plea of guilty. The first of these was Pickett v HMA 2007 SCCR 389. The third paragraph of the decision was pertinent. The Advocate depute also relied upon paragraphs 47 and 55 to 58 of the opinion of the court. The next relevant authority was Gallagher v HMA [2010] HCJAC 46, particularly paragraphs 10, 13 and 14 of the opinion of the Lord Justice Clerk. The plea of guilty in that case had been made in circumstances where the accused had not made an informed decision after a proper opportunity for reflection. Furthermore the circumstances in which the legal advice upon which the plea was based has been given were bizarre and inappropriate. Those circumstances contrasted sharply with what had occurred in the present case.

[18] In any event, the advice given to the appellant by counsel in Perth Sheriff Court was not wrong. There was no "reasonable excuse" in the circumstances of the present case. In that connection the Advocate depute relied on Regina v Evans [2005] 1 WLR 1435. In relation to the correctness of the advice given to the appellant, it was instructive to note what had been said on his behalf before the sheriff. In that connection the Advocate depute referred to the transcript of proceedings in the Sheriff Court, number 5 of the appeal process, between pages 5 and 14. What emerged from that was that the appellant had made an assumption that the complainer was 19, not on the basis of any information that he had about her directly, but upon the basis of his knowledge of the age of Mr Handley, who was 20 years old at the material time. As the appellant observed to a police officer, narrated at page 17 of the transcript: "I didn't know that Danny was running round with 14 year olds". That whole position was confirmed by what was narrated in the Note furnished by counsel who then acted for the appellant, dated 24 December 2009, number 13 of the appeal process; it narrated that the appellant has assumed that the complainer was of a similar age to Mr Handley. The appellant's position appeared to be that he contended that honest belief and assumption were identical; they were not. In any event, the issue for consideration was not whether there existed an honest belief concerning the age of the complainer, but rather whether the appellant had a "reasonable excuse" in terms of section 113(1) of the 2003 Act for his conduct which in fact was directed towards a female child. A "reasonable excuse" could not be constituted by an unwarranted assumption. It was respectfully submitted that the sentencing judge had himself introduced the concept of an "honest and reasonable belief", to use his words, but that language was unrelated to the terms of section 113(1) of the 2003 Act.

[19] That Act contained no definition of the concept of a "reasonable excuse"; however, assistance could be got in relation to that from certain judicial decisions. In HMA v Hoggan 1893 1 Adam 1, the issue was the meaning of the words "reasonable cause to believe" in section 5 of the Criminal Law Amendment Act 1885. The accused person had contended that it was open to the jury to decide that there existed a "reasonable cause to believe" that the girl in question was of or above the age of 16 years on the basis of the girl's appearance. However that contention was rejected. Reference was made particularly to the observations of the Lord Justice Clerk at page 3. An identical view was taken in relation to the same legislation in HMA v John Macdonald 1900 8 S.L.T. 80. The Advocate depute also relied upon Lister v Lees 1994 S.C.C.R. 548 and Section 16 of the Sexual Offences (Scotland) Act 2009, although that latter provision was not yet in force. Nevertheless the provision gave some assistance in the context. It provided that, in determining for the purposes of the legislation whether a person's belief as to consent or knowledge was reasonable, regard was to be had to whether the person took any steps to ascertain whether there was consent, or as the case might be, knowledge; and, if so, to what those steps were. While that provision was of limited value, it indicated that an objective approach had to be taken to the matter. The Advocate depute said that she acknowledged that the concept of "reasonable excuse" was not confined exclusively to the issue of age in the operation of section 113(1) of the 2003 Act, but rather related to all of the ingredients of the offence.

[20] In all the circumstances, it was plain on the basis of the appellant's own version of the facts, as advanced on his behalf before the sheriff, that he did not in fact have a defence of "reasonable excuse", the only basis upon which it was suggested that there had been a miscarriage of justice. Accordingly, there was no miscarriage of justice and the appeal against conviction ought to be refused.

Reply by counsel for the appellant
[21] Senior counsel contended that whether there was a "reasonable excuse" would properly have been a matter for a jury. It was important to note what counsel acting for the appellant at the time of his appearance before the sheriff said in his note to the court, dated 24 December 2009. That material showed that the advice given to the appellant was given on the basis that there could have been no "reasonable excuse", because the appellant's conduct itself was objectionable. He submitted that the court could not say that the appellant's assumption concerning age could not amount to a "reasonable excuse".

The decision
[22] It is now well recognised that a conviction following upon a plea of guilty tendered with legal advice can only be quashed in limited circumstances. These are, first, where it has been tendered without the authority of the accused person, second, if tendered under some real error or misconception, or, third, if tendered in circumstances which were clearly prejudicial to the accused. That is evident from what was said by Lord Osborne in the opinion of the court in Pickett v HMA in paragraphs [57] to [59] and, more recently in Duncan v HMA in the opinion of the court delivered by Lord Wheatley at paragraph [11].

[23] As we understand it, the contention in the present case was that it falls into the third category just mentioned. The basis of that contention was that, in the circumstances of the case, the appellant had a defence to the charge which he faced based upon the words "without reasonable excuse" appearing in section 113(1) of the 2003 Act. In particular, it is said that the assumption that he made regarding the age of the complainer, based on his knowledge of the age of Mr Handley, could amount to a "reasonable excuse".

[24] It is recognised that the 2003 Act contains no definition of the words "reasonable excuse". Accordingly one is therefore required to approach the expression by attributing to it its ordinary meaning, having regard to the words used, drawing such assistance as may be available from decisions upon similar language used elsewhere. The word "excuse" does not itself present any difficulty, meaning simply that which is offered as a reason for being excused. However, in the context, the word "reasonable" is of importance. To our mind, the use of that word indicates that Parliament intended that the excuse should possess some objectively recognisable justification. Following that approach, the mere making of an assumption about a state of facts based on a highly questionable inference could not amount to a "reasonable excuse". A number of authorities were cited to us by the Advocate depute in relation to this issue, which possess some, although limited, value, since they deal with differing language. However, we derived some assistance from HMA v Hoggan, which was concerned with the meaning of the words "reasonable cause to believe" occurring in section 5 of the Criminal Law Amendment Act 1885. There the Lord Justice Clerk took the view that the appearance of a girl could not constitute such "reasonable cause". That view was affirmed in HMA v Macdonald by Lord McLaren. His view was that "no defence can be founded upon impressions formed from the appearance of the girl". He went on to say:

"It must not be mere supposition on the part of the accused; it must be that he formed the opinion upon information or other intelligible and reasonable grounds of belief."

[25] The position of the appellant, as it was explained to the sheriff, was that he made an assumption concerning the age of the girl, namely that she was 19, that being a similar age to that of Mr Handley. As was said by his counsel, he indicated to police officers that: "I didn't know that Danny was running around with 14 year olds". It is quite plain from the circumstances of the case that the appellant made no enquiry of any kind in relation to the age of the complainer, but rather took the opportunity to try to make contact with her without any such enquiry. In all these circumstances we have reached the conclusion that the advice plainly offered to the appellant at the time of his plea of guilty that he had no "reasonable excuse", based upon his assumption about the age of the girl, was correct, and thus the fact that he acted on that advice cannot in our view constitute a miscarriage of justice.

[26] We feel bound to observe that consideration of the issues before the sentencing judge appears to have been somewhat clouded by a discussion relating to what the sentencing judge called an honest and reasonable belief relating to the age of the complainer. It seems to us that that language is by no means synonymous with the expression "reasonable excuse", used in section 113(1) of the 2003 Act.

[27] Senior counsel for the appellant in his reply to the submissions of the Advocate depute made a point based upon the explanations given by counsel acting for the appellant in the sheriff court in his note to this court dated 24 December 2009. In that note, counsel observed:

"I then turned to a consideration of whether such molestation and accosting was sufficient to amount to a breach of the interim order in light of the appellant's assertion regarding his state of knowledge of the complainer's age. I was very conscious of the terms of section 113 of the 2003 Act and the defence of reasonable excuse and considered this question closely in light of the information provided to me by the appellant. I formed the view, firstly, that for the reasonable excuse defence to be open to the appellant, it would be necessary to establish on his behalf that, not only was it reasonable for him to have formed the view that the complainer was over 16, but also that he had a reasonable excuse for the conduct itself. I formed the view that no explanation could properly be advanced for the conduct, the nature of which I have described above, which would have reasonable prospects of amounting in a jury's mind to a 'reasonable excuse'.

I also recall having concerns regarding whether the appellant could, in any event, make out that he had a reasonable excuse for his ignorance of the complainer's true age in light of his failure to verify his assumption regarding the complainer's age."

Thus there appeared to have been two bases for counsel's advice to the appellant that he should plead guilty to the charge. We do not find it necessary to express any view on counsel's advice to the effect that, in the circumstances, there could be no "reasonable excuse" for the conduct itself, since, in this appeal, no contention was made concerning that. The only basis upon which it was contended before us that there had been a miscarriage of justice was that erroneous advice had been tendered and accepted in relation to the issue of "reasonable excuse" regarding the appellant's position concerning the age of the complainer. Since we have held that his advice on that matter was correct, no other issue properly arises in this appeal.

[28] In all these circumstances we conclude that no miscarriage of justice has occurred and that therefore the appellant's appeal against conviction must be refused.