R v Williams[2000] QCA 409

SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  In a trial which commenced on 7 December last year the appellant was charged on 12 counts;  six of them were of stealing, the other six were upon the alternative count of receiving.  The first of the alternative charges involved a Ford utility motor vehicle.  Each of the others involved jet skis, in one case two jet skis and in two of them involving also a trailer.  He was convicted on 10 December on six counts.  In respect of those involving the Ford utility motor vehicle the jury were unable to decide whether he was guilty of stealing or receiving.  They reached a similar conclusion in respect of three of the offences involving jet skis.  On each of those the learned trial judge entered a conviction for receiving.  And in the two other offences involving jet skis they found him guilty of stealing.  He was sentenced on each count to five years imprisonment those sentences to be served concurrently.  He appeals against his conviction and seeks leave to appeal against his sentence.  He was also sentenced to two years imprisonment for offences, to which he pleaded guilty, of receiving, stealing and unlawful use referred to below.  He has not sought to appeal against those sentences.

2. The appeal against conviction is on five grounds but they involve in essence two questions. The first is the admission into evidence of a recorded statement by a person, Monson, alleged to have been the appellant's co-offender, the statement having been admitted pursuant to s 101 of the Evidence Act 1977.  The second is the correct application of s 568(8) of the Criminal Code to the facts of this case.

3. Before dealing with the grounds which were argued it is necessary to say something about the circumstances in which they arise.

4. Between 1.00 am and 5.30 am on 9 January 1998 a white utility motor vehicle was stolen from a position where it had been parked and locked. At 7.00 am the same morning a police officer intercepted that vehicle being driven by the appellant. By that time the correct registration plate had been removed and an incorrect one fitted to the vehicle. A week later the vehicle was found abandoned in a Gold Coast shopping centre in a damaged and altered state. This evidence alone, uncontradicted as it was, ought to have been sufficient to enable the jury to convict the appellant of stealing. However they concluded that he was guilty either of stealing or receiving but they could not say which. This vehicle was the subject of counts 1 and 2.

5. The jet skis the subject of counts 3 and 4 were the subject of an admission by the appellant that he was in possession of them knowing that they were stolen and a plea of guilty to receiving. It also appears from his police interview that he admitted to have been present when Monson, who pleaded guilty to the theft of these and other jet skis, stole them. On these counts also the jury were unable to decide whether he was guilty of stealing or of receiving.

6. The jet skis the subject of counts 5 and 6 were found in the backyard of a Mrs Marshall who lived a couple of doors away from where the appellant lived. Her evidence was that she knew the appellant, that he had asked her if he could put the jet skis in her yard, to which she agreed, and some time later asked her if he could move them to the back of her house to which she also agreed. In his record of interview which was tendered, the appellant denied that he asked Mrs Marshall to do this and said that someone else had done so. On this also the jury were unable to decide whether the appellant was guilty of stealing or receiving.

7. On counts 7 and 9 the jury found the appellant guilty of stealing the jet skis the subject of those counts. In each case the receivers of the skis had said that the appellant and Monson had been involved in the sale to them of the jet skis and in respect of count 7 the receiver had said that he transferred funds for the purchase of the skis (these were counts involving two skis) to bank accounts of both the appellant and Monson. There was also evidence that jet ski clothing belonging to the complainant in count 7 was found in the possession of the appellant and other property of that complainant was found in a pawnbroker's shop, having been pawned by the appellant's de facto wife.

8. The jury were again unable to decide in respect of counts 11 and 12 whether the appellant was guilty of stealing or receiving but the evidence of the receiver of that property appeared to involve the appellant and Monson equally.

9. That short summary of the case against the appellant shows, in my opinion, that it was a strong one, even without the evidence of Monson's statement which was the statement admitted pursuant to s 101 of the Evidence Act.  That case remained uncontradicted by any evidence from the appellant.  It is in that context that the grounds of appeal must be considered.

10. Monson had given a recorded statement to police incriminating the appellant in the offences. Monson pleaded guilty but at no stage offered to give evidence against the appellant. He was called in the prosecution case but having agreed that he knew the appellant then said: "I've got nothing to say about that." The prosecutor then asked the learned trial judge to direct Monson to answer his questions and his Honour did so. Monson then said:

"Your Honour, I made it clear in August that I wouldn't be a witness at this case.  I made it clear again on Friday that I had no intention of saying anything and that's it."

He was then advised that he could be dealt with for contempt.  The jury were then sent out, the witness was charged with contempt but given until the following day to seek legal advice to reconsider his position.  On that day he did not change his position.  Accordingly the learned trial judge, at the request of the prosecutor, expressed the opinion that the witness was adverse and gave the prosecutor leave to prove that he had made at another time a statement inconsistent with his present testimony.^[1]

11. The jury were then recalled and the prosecutor put the earlier statement and the circumstances in which it was made to the witness. He answered either to the effect of "I've got nothing to say" or "no comment" to each of the questions asked. The prosecutor then called a police witness who proved the recorded statement of the witness. No objection was taken by the defence counsel to anything in the course which was taken. Now for the first time the appellant seeks to raise a number of objections to what was done.

12. First it is submitted that the prosecution's calling of a witness known to be adverse, solely with the motive of using him to render admissible evidence which would otherwise be inadmissible would be improper. The appellant relied for this proposition upon the following statement in the judgment of the High Court in Blewitt v The Queen:^[2]

"It is established that the calling of a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible to prove facts against the accused is improper and might well give rise to a miscarriage of justice."

Their Honours there were speaking of legislation which permitted the admission of prior inconsistent statements only for the purposes of discrediting the witness;^[3]  not for the purpose of proving facts against the accused.  However the statement has no application to the Evidence Act in its present form which, by s 101 makes such statements admissible to prove facts against the accused.  As McPherson J said in R v Hall:^[4]

"It is difficult to see how it can be said to be 'improper' to adopt a course leading to the reception of evidence that is affirmatively declared by statute to be admissible."

The proposition relied on is therefore irrelevant here.

13. In any event, if it matters, I do not think it correct to say that Monson was called solely with the motive of using his evidence to prove the earlier statement. It was possible that, notwithstanding his earlier declared refusal to give evidence, he would nevertheless agree to do so if it were made plain to him, as it was, that he would face an additional conviction and sentence for contempt if he did not.^[5]

14. Secondly on this question it was submitted that, notwithstanding the failure of counsel to object to the admission of this evidence, the learned trial judge should have excluded it in the exercise of his discretion on the basis that its prejudicial effect greatly outweighed its probative value. This was, it was submitted, because the appellant was deprived of the opportunity of cross-examining Monson on this evidence; and because it left, as the only inference open, that Monson's refusal to say more than he did was in order to avoid having to confirm the truth of his statement.

15. The appellant was not deprived of the opportunity of cross-examining Monson although it must be conceded that it was unlikely that Monson would respond. However it was open to the appellant to give or call evidence which might rebut the inference referred to if it were available. Monson's evidence, however unreliable it might be, was plainly relevant, proving facts in issue in the trial. Both the prosecutor and the learned trial judge pointed out to the jury matters which would diminish its probative strength, the prosecutor indicating that the Crown did not greatly rely on it. I do not think that, given its relevance and the opportunity which the appellant had to explain away the inference to which I have referred, it could be said that its prejudicial effect outweighed its probative value.

16. Thirdly it was said that the learned trial judge erred in admitting this evidence because the statement was not inconsistent with the present testimony of the witness, that testimony being, it was said, neutral as to the correctness or otherwise of the earlier statement. The question is whether testimony in which Monson refused to say whether what was said in the statement was true or even to acknowledge that it was made is inconsistent with that statement. In my opinion it is. It is not necessary for the testimony to be inconsistent with the statement that it contradict it. It is sufficient that it is not consistent with it for the terms "consistent" and "inconsistent" are mutually exclusive. In my opinion a statement positively implicating the appellant and testimony refusing to acknowledge even the making of that statement are inconsistent.

17. The final basis upon which the appellant criticized the admission of this evidence or, more accurately, the circumstances in which it was admitted, was that he submitted that Monson should not have been cross-examined before the jury in respect of the inconsistent statement. It was submitted that this should have been done upon a voir dire. No authority was relied on. There are two reasons why, in my opinion, this submission must fail.

18. In the first place it is one thing to say that, where a prior inconsistent statement may be relevant to the determination whether a witness is adverse, cross-examination on that statement for that purpose should be conducted on a voir dire.^[6]  That is because, until that determination is made, the statement cannot be proved against the witness at the trial.  It is, however, quite another to say that, once the witness has been held to be adverse, cross-examination upon that statement must be conducted in the absence of the jury.  Such cross-examination is upon a statement which is relevant and admissible against the accused.

19. Secondly this submission can have no consequence in this appeal unless the failure to conduct this cross-examination in the absence of the jury caused the trial judge's discretion in admitting the statement to miscarry and in consequence there was a miscarriage of justice. However, for reasons which I have already given, neither of these was the case.

20. It follows from what I have said so far that grounds 1, 2 and 3 must fail. Grounds 4 and 5 contend that the learned trial judge erred in failing to comply with s 568(8) of the Criminal Code.  The appellant conceded that the jury's verdicts complied with that subsection and that concession was, in my opinion, rightly made.  However, in view of the fact that this question attracted some comment during the course of argument I should say something further about it.

21. Section 568(8) provides that if the jury find specially that the accused person stole the property in question or received it knowing it to have been stolen but are unable to say which of these offences was committed, the accused shall not by reason thereof be acquitted but the judge shall enter a conviction for the offence for which the lesser punishment is provided. In the present case the verdicts on counts 1, 3, 5 and 11, as recorded in the transcript forming part of the appeal book, was as "unable to decide which". It is not there recorded that the jury, in any of these cases, made the special findings referred to in s 568(8).

22. It has since emerged that that was an incorrect recording of what was said. In his earlier directions on this point his Honour told the jury that, if they were satisfied that the accused was guilty of stealing or receiving but they were unable to say which, they could return a verdict of guilty of stealing or receiving but unable to say which. That was the correct verdict to give in such a case. His Honour repeated that direction, in effect, in some redirections which he gave. And the verdict which the jury in fact returned on each of these counts was "guilty of stealing or receiving, unable to decide which". It is therefore unnecessary to consider whether, in any circumstances including those in this case, a verdict in the form as recorded in the transcript forming part of the appeal book, would be sufficient to comply with s 568(8).

23. The point made in grounds 4 and 5 is that, the maximum penalty for stealing and receiving being the same, it was impossible for the learned trial judge to enter a conviction for the offence for which the lesser punishment is provided. Consequently it is submitted that s 568(8) has no application and there should be a retrial. But s 568(8) is, in terms, plainly applicable to this case and it states that, upon such a verdict the person shall not be acquitted. It is true that the subsection appears to be internally inconsistent where the alternative offences are stealing and receiving because the punishment for stealing and receiving is the same but it must, in the end be given a sensible meaning. That meaning must be, in my opinion, that where, as here, the punishment for the alternative offences is the same, the judge may enter a conviction for either offence. Here he gave the appellant a choice. This ground must also fail in my opinion and the appeal against conviction must be dismissed.

24. The applicant is 35 years of age. He has previous convictions for receiving and false pretences in 1990, stealing or receiving and false pretences also in 1990 and possession of property suspected of being tainted in 1998. He has not previously been sent to gaol.

25. Upon the completion of this trial the appellant also pleaded guilty to stealing from a shop, receiving a computer and air compressor and unlawful use of a motor vehicle. These offences were unrelated to the offences of which he was convicted although the receiving offences occurred at the same time as the offences with respect to the jet skis. The unlawful use offence and the stealing offence occurred while the applicant was on bail.

26. There was little of consequence that could be said in the appellant's favour. He was dependent on heroin although he was drug free at the time of sentence and, as mentioned, he had a previous history of offences of dishonesty. These offences had the appearance of a systematic business, particularly with respect to the jet skis which the appellant either stole or received and sold on. The total value of property involved was $63,000. The motor vehicle was recovered in a damaged and altered state. The jet skis were also recovered. It is unclear whether they were damaged.

27. The appellant contends for a sentence of two and a half years imprisonment relying on the cases of Luff CA No 102 of 1999, 27 May 1999 and Myles CA No 372 of 1993, 17 November 1993.  Each involved sentences of four years imprisonment although, in the first of them, a recommendation for parole was made after 18 months.

28. Luff had no previous convictions and pleaded guilty. He also offered to give evidence against his co-accused. His business, rather like this one though more sophisticated, involved purchasing wrecked cars with compliance plates, acquiring stolen cars and substituting on the stolen cars the compliance plates from the wrecked vehicles. The stolen cars were then re-sold. Property to a value of about $70,000 to $80,000 was involved. He was sentenced to four years imprisonment with a recommendation after 18 months, the latter being made for the guilty plea, remorse and his co-operation with the authorities including his offer to give evidence against his co-accused.

29. Myles also pleaded guilty at an early stage and co-operated with police. He was a young man of 25 years of age with only one minor conviction many years before. He however was involved in a lucrative car stealing racket. He received four years imprisonment.

30. The submission by Mr East for the appellant was that the offences in each of these cases were more serious than those here because, amongst other reasons, they involved motor vehicles rather than, as in this case, with one exception, recreational vehicles. There is some substance in that submission but, as already mentioned, both of these cases involved guilty pleas with additional co-operation in one of them.

31. The respondent relies on the cases of Herricane CA No 339 of 1997, 29 October 1997 and Henderson CA No 227 of 1992, 30 September 1992.

32. Herricane received mostly electrical equipment such as microwave ovens, stereo systems, television sets and cameras to a value of about $35,000. His conduct also had the appearance of a commercial enterprise. He was 24 years of age but already had a very extensive criminal history mostly of offences involving dishonesty. He had previously been sent to gaol. He was convicted after a trial. The Court considered a number of comparable sentences and imposed a sentence of that case of five years imprisonment. It was said that the general range of offences of this kind appeared to be in the order of three to four years imprisonment but that a term of five years could be justified, notwithstanding the youth of the offender, by reason of his previous criminal history and the fact that the sentence imposed ran concurrently with an activated suspended sentence.

33. Henderson pleaded guilty although on the second day of his trial. He received five years for receiving. He was 37 years of age with a substantial criminal history, having spent a large part of his life in gaol. He received goods to the value of about $12,000. The sentence of five years imprisonment was described by this Court as a proper one. The facts stated in the sentencing remarks in that case are insufficient to make any useful comparison.

34. For the first time in the course of making his oral submissions Mr East for the appellant submitted that the sentence imposed on his client lacked parity with that imposed on his co-offender Monson. There is substance in that submission although, in fairness to the learned sentencing judge, it should be said that it does not appear to have been made to him.

35. Monson was charged with offences of possession of eight jet skis valued at over $71,000. The six jet skis in respect of which the appellant was convicted were valued at about $63,000. Monson confessed his involvement to police and named his co-offenders. A search of his premises indicated that he was indeed carrying on a business in stolen jet skis, seeking and obtaining orders for them and other property. Monson was sentenced to an effective term of three years imprisonment. He also pleaded guilty to a number of offences of dishonesty committed whilst he was on bail from the commission of these offences, involving property of a value of over $50,000. He was sentenced to a cumulative three year term in respect of those offences. A recommendation for parole in respect of the six year term was made at the end of two years. Monson, like the appellant, was addicted to heroin and his addiction was a cause of the commission of his offences. The appellant had a somewhat longer criminal record than Monson although it was not a great deal worse. They were of a similar age.

36. Although, as I have mentioned, Monson named his co-offenders it does not appear as if any substantial discount was given for this. This may have been because, as his Honour said, although he did co-operate with the police, in respect of some counts he was not forthcoming, and in relation to his dealings with one of the motor vehicles he was quite devious, in his explanation to the police.

37. It is rather difficult to compare Monson's sentence with that imposed on the appellant because of the cumulative sentence which was imposed for the commission of the offences which Monson committed whilst on bail for the jet ski offences. Here, by contrast, for additional offences committed whilst on bail, the appellant was sentenced to a concurrent term of two years. When the difference between the current and cumulative terms is taken into account, it is impossible to say with any confidence that the sentences imposed on Monson show any significant lack of parity with those imposed here.

38. Nevertheless the cases referred to earlier and other cases,^[7] in my view, show that a sentence of five years imprisonment was not justified here.  Having regard to all of the matters mentioned, I do not think that a sentence of more than four years was within the appropriate range.  Accordingly I would grant the application, allow the appeal against sentence, set aside the sentence imposed and impose in lieu a sentence of four years imprisonment.

39. McPHERSON JA: The appellant was brought to trial in the District Court on an indictment charging twelve counts. Six of those counts charged him with stealing various vehicles. In respect of each such count there was an alternative count of receiving the same property. On being arraigned, he pleaded guilty to count 4, and not guilty to all of the other eleven counts. At common law counts of stealing and receiving, which are mutually exclusive (McCarthy (1993) 71 A Crim R 395, 399), were not capable of being joined. The first legislative step in the direction of permitting such joinder was s 3 of the British statute 11 & 12 Vic c46, which is referred to in Gilson v The Queen (1991) 172 CLR 353, 372-373, where McHugh J said it was the origin of s 196(2) of the Criminal Law Consolidation Act 1935 (SA) considered in that case.

40. In Queensland, the matter was originally governed by s 568(4) of the Criminal Code, which in 1961 was amended to add what then took the form of a proviso to that subsection. It has since been verbally revised, and in that condition the relevant provision now stands as s 568(8). After permitting the joinder of charges of stealing and of receiving under s 568(6), and expressly authorising the conviction of an accused person in respect of one such offence or the other, s 568(8) now goes on to provide, so far as material, that:

"... if the jury find specially that the accused person ...

1. …

2. stole the property; or

3. received the property, or any part thereof, knowing it to have been stolen; or

4. committed 1 of any 2 of those offences;

and that they are unable to say which of those offences was committed by such person … such person … shall not by reason thereof be entitled to be acquitted, but the Judge shall enter a conviction for the offence for which the least or lesser punishment is provided".

41. Section 568(8), or the earlier proviso of which it is a partial re-draft, was almost certainly derived from s 121 of the Crimes Act 1900 (NSW) to which it has a close resemblance. In New South Wales the procedure adopted in relation to that section was laid down in R v Cassidy (1919) 19 SR (NSW) 48, where the Court of Criminal Appeal held that the proper course in directing a jury under s 121 was first to take a verdict on the count of stealing; if that verdict was not guilty, then to take a verdict on the count of receiving, and, if it too was not guilty, to take the special verdict or finding under the s 121 that the accused either stole or received the property, and that the jury are unable to say which of those offences was committed. The course of procedure sanctioned by R v Cassidy has consistently been followed in cases of larceny and receiving in New South Wales: see R v Ferguson (unrep. CCA no 227 of 1984; May 8, 1986); Saleam (1989) 41 A Crim R 108; Walters (1992) 62 A Crim R 16; and Clarke (1995) 78 A Crim R 226. A suggested form of direction to be used in such cases is set out in para 2.19470 of the current edition of Watson Blackmore & Hoskings Criminal Practice & Procedure (NSW).

42. Although, as I have said, s 568(8) of the Queensland Criminal Code originated in s 121 of the New South Wales Crimes Act 1900, the procedure of taking not guilty verdicts on stealing and receiving before directing on the special finding authorised by that provision has not, so far as my experience goes, been followed in this State. In any event, even in New South Wales, it is not regarded as necessarily fatal that such verdicts have not been taken preparatory to a special verdict under s 121. In Saleam (1989) 41 A Crim R 108, 109, the verdict is recorded as having been returned by the jury in form as follows:

"Counts 1 and 2.That the appellant either stole or feloniously received the property but the jury was unable to say which of those two offences was committed by him."

In giving judgment in the Court of Criminal Appeal, Lee J (as he then was) said (41 A Crim R 109, 115):

"It is clear from Cassidy (1919) 19 SR (NSW) 48 that where the jury has open to it a special verdict under s 121 the judge should see to it in his direction that the jury understands that that requires a verdict of not guilty on each of the counts for stealing and receiving".

His Honour went on to say that, in the case before the Court, that had not been done, and that the record was therefore not in order; but that the special verdict delivered was "not thereby impugned". The Court accordingly ordered that the record be completed by noting that verdicts of not guilty should have been given on the first two counts (larceny and receiving) on the indictment.

43. The High Court had occasion to consider some of these or closely related questions in Gilson v The Queen (1991) 172 CLR 353, to which reference has already been made.  The relevant provision of the South Australian statute there under consideration differs from the New South Wales and Queensland sections; but the majority of their Honours (Mason CJ, Deane, Dawson and Toohey JJ), with whom Brennan J partly, and Gaudron J substantially, agreed, referred to and commended the provisions of the Queensland and Western Australian Criminal Codes (172 CLR 353, 363). Perhaps surprisingly in view of the composition of the Court, their Honours did not refer to s 121 of the New South Wales Act or the decisions and  the procedure which have been adopted under it. In referring to the Code provisions, the majority judgment said (171 CLR 353, 364):

"The trial judge … should direct [the jury] that, if they are satisfied beyond reasonable doubt that the accused either stole the property or received it knowing it to have been stolen, but they are unable to say which, then they should return a verdict of guilty of the less serious offence".

44. What was said by their Honours on the subject of s 568(4) of our Code, or s 568(8) as it now is, was obiter; but it is plainly entitled to great respect. It suggests that it may not be essential that separate verdicts of not guilty first be taken from the jury on each of the counts of (a) stealing, and (b) receiving, where the two offences are charged as alternatives under s 568(8) of the Code, before taking a special verdict under that provision. The decision in Saleam (1989) 41 A Crim R 109, 115, may also be regarded as some authority in that context. On the other hand, it seems to me that an affirmative special verdict in terms of s 568(8) must be delivered before a conviction can be entered against the accused. So much is clearly contemplated in the passage from Gilson extracted above. Brennan J dissented from the majority view in one particular, saying that it was "contrary to principle and to practice to permit or require a trial judge to give a jury a direction, being a direction on a matter of fact, as to which offence is to be visited with a more severe or less severe sentence". With respect, it seems difficult to disagree with that view of the matter. In my opinion, it is sufficient for the purposes of s 568(8) that the jury be directed that, if they are not satisfied beyond reasonable doubt that the accused is guilty of stealing; and are not satisfied beyond reasonable doubt that the accused is guilty of receiving; but are satisfied beyond reasonable doubt that the accused either stole the property or received it knowing it to be stolen, then they should return a verdict that the accused  was guilty of stealing or receiving the property (or part of it), and are unable to say which of those offences was committed. Once that is done, and such a verdict is returned, it is the Judge who is required by s 568(8) to enter ("shall enter") a conviction for the offence for which the least or lesser punishment is provided. In this particular, the first part of the provision in s 568(8) of the Code appears to differ in some respects from the original New South Wales model in expressly authorising the trial judge to enter a conviction for the lesser offence.

45. The question in the present case arose because of the way in which some of the verdicts are recorded in the transcripts forming part of the appeal record in this matter. To counts 7 and 9, the jury at the appellant's trial returned verdicts of guilty of the offence of stealing charged in each of those two counts. In relation to counts 1, 3, 5 and 11, the response of the jury in each instance, as recorded in the transcript in the appeal book, is simply "unable to say which".  It is difficult to see why that verdict was returned to count 3 if he pleaded guilty to count 4 receiving as an alternative to count 3 (stealing the same property). There  was some debate about it at the trial. The jury were, however, directed that they were still entitled on count 3 to return a special verdict under s 568(8), and that, it is suggested, is what, in the result, they did. More precisely, what the transcript records is that on count 3, as on counts 1, 5 and 11, their response was "unable to say which". Those responses were entered on the indictment as verdicts of "guilty of either stealing or receiving but unable to say which". I would not have regarded those responses, as they are recorded in the transcript, as authorising such an entry. In the form in which they appear in the record, they do not amount to verdicts that the appellant is either guilty or not guilty of any offence, whether (i) stealing, or (ii) receiving, or (iii) stealing or receiving.

46. In my opinion it would not be open to the Court to draw the inference from the questions put (and in this case correctly put) by the trial judge to the jury that their responses, as they are recorded in the transcript, constituted the form of special verdict envisaged by s 568(8). See R v Brown [1949] VLR 177, 179, where it was said:

"In a criminal trial the ultimate fact in issue is the guilt or innocence of the accused. Under our system of law this fact cannot be found by the Court, but must, under direction by the Court as to the law, be found by a jury alone, either by general or special verdict".

The correct course when a general verdict is required is, after the facts have been found specially by the jury, to direct them that the effect in law of their answers is that all the elements of the charge have been found proved, and then to ask for a general verdict in conformity with their findings. See Jackson v The Queen (1976) 134 CLR 42. Where, as here, statute authorises something else to be done, the course so authorised must be adhered to.

47. Inquiries after the appeal in the present case had been heard elicited the fact that the proceedings, including the verdicts at this trial, were tape recorded. On listening to the tape recording of the verdict, it is possible, in relation to each of counts 1, 3, 5 and 11, to hear the jury say "Guilty of stealing or receiving", unable to decide which". The recorded sound is audibly quite distinct in each case, and there can be no doubt about what was said in response to each question asked by the associate. On that footing, the verdicts on those counts accorded with s 568(8) and the trial was therefore complete.  The question is what is to be done about it now.

48. Further investigation discloses that this part of the transcription of the proceedings at trial, which includes the page at which the incomplete verdicts are recorded, has never been certified as correct, as it should have been in compliance with reg 4(1)(f) of the Recording of Evidence Regulations 1992. Once so certified (as on this appeal it was assumed to have been) a court is bound by s 10(2) of the Recording of Evidence Act 1962 to receive it "as evidence of anything recorded in the transcription". Formerly s 10 of that Act was expressed to make a certified transcript "prima facie evidence" of anything recorded in it; but the word "prima facie" has since been omitted from the section; no doubt this was done because the effect of a statutory provision making something "evidence" of a fact is that it is prima facie evidence of that matter. See Re Stollery [1926] 1 Ch 284, 313.

49. The result of this not very satisfactory state of affairs is that the uncertified transcript here is not evidence of the verdicts returned by the jury at the trial. Once the matter was raised with the Court Reporting Bureau, however, the Court was furnished with a further, and now certified, transcript of the page of the proceedings on which the verdicts appear. So far as material, they are in the following form:

As so certified, the Court is bound under s 10 to receive this transcript and to treat it as evidence of those verdicts. It follows that the verdicts as they are now certified to have been given complied with s 568(8) of the Code, and the indorsement of those verdicts on the indictment was correct and properly authorised. Appellant's counsel has been supplied with a copy of the now certified transcript of the proceedings.

50. In these circumstances I agree with Davies JA that the appeal against conviction should be dismissed. I would, however, on the authority of Saleam (1989) 41 A Crim R 108, 109, and of the concluding words of s 568(8) of the Code, now direct the entry of verdicts of not guilty and of acquittal on each of counts 2, 6, 8, 10 and 12 in the indictment on which no verdict was rendered. Otherwise it might be theoretically open to the prosecution to charge the appellant again with the offence of receiving in each of those counts. Counts 3 and 4 present a problem of a different kind. The appellant pleaded guilty to count 4 receiving, but on count 3 was convicted of either stealing or receiving, the jury being unable to say which. Section 631A(3) provides that "if an accused person pleads guilty to the offence charged in the indictment … the jury shall be discharged from giving their verdict in respect of the offence charged in the indictment". It is not to my mind entirely clear that s 632A(3) applies generally, or only to a case where the appellant changes his plea after first being arraigned at the trial. In this instance, however, nothing was done to show that the Court accepted the appellant's plea or regarded it as a determination of guilt on count 4. See R v Collins, ex p Attorney-General [1996] 1 Qd R 631, 638. It therefore seems to me that it was open to the jury at the end of the trial to return the special verdict they did under s 568(8). R v Collins, ex p Attorney-General [1996] 1 Qd R 631, 640. The verdict on count 3 should stand and, despite the appellant's plea of guilty on count 4, a verdict of not guilty and of acquittal should now also be entered on that count.

51. On the other issues discussed by Davies JA, I agree with the reasons his Honour has given, including his reasons for disposing of the sentence applications.  The sentence should be varied to imprisonment for four years in accordance with the order proposed by his Honour.

52. AMBROSE J:  I agree with the reasons of Davies JA.