SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with Williams JA's reasons for dismissing the appeal against conviction.

2. During the summing up the judge told the jury that their verdict on any count must be unanimous; there was a presumption of innocence in favour of the accused; the Crown must satisfy the jury of Sparks' guilt beyond reasonable doubt on each count; they were entitled to return different verdicts on different counts; they could return verdicts of either guilty or not guilty or they may be unable to reach a verdict on any count. It seems that the jury indicated to the judge through the bailiff that they had reached verdicts on all counts before the court reconstituted and the associate asked "Members of the jury, are you agreed upon your verdicts?". Although no response is recorded in the transcript, it can be inferred that the jury members communicated assent, at the very least by silence. After delivering five guilty verdicts on counts 1 to 5 inclusive the judge raised the possibility of short-circuiting the process of taking the remaining verdicts and asked the jury whether they had "arrived at identical verdicts of guilty with respect to the other seven offences". The speaker said "We have". No member of the jury dissented from the statement of the judge that he was accepting the speaker's response as an intimation that the unanimous verdict of the jury was that Mr Sparks was guilty of all 12 offences. I would strongly discourage judges from departing from the usual, time-honoured practice in Queensland of taking verdicts but I am satisfied there has been no resulting miscarriage of justice: cf R v Conway.^[1]

3. The appeal against conviction should be dismissed.

4. WILLIAMS JA:  After a seven day trial in the District Court at Roma the appellant was convicted of six counts of breaking and entering premises and stealing, two counts of breaking and entering premises with intent, and four counts of wilful damage.  He appeals against those convictions.  The Notice of Appeal contained 18 matters said to be the grounds of appeal; many are mere assertions which do not constitute a ground of appeal against conviction.  The written outline of submissions submitted on behalf of the appellant is also a rather rambling document which is difficult to correlate with the grounds of appeal stated in the Notice.  Those issues were raised with counsel at the outset of the hearing of the appeal and it was then intimated that the real grounds of appeal were twofold: firstly, the verdict of the jury was unsafe and unsatisfactory, the major particular being that there was conflicting prosecution evidence, and secondly, the trial was conducted in a way which was unfair to the appellant.  It was to those broad grounds that oral submissions were directed.

5. There is, however, one matter that was not adverted to in the course of oral submissions which has come to light after the matter was reserved. The jury initially retired to consider their verdict at 2.42 pm. Re-directions were subsequently sought and deliberations continued after a dinner break. Then at 9.10 pm it was intimated that the jury had reached a verdict. I now set out from the transcript of proceedings what then occurred:

"ASSOCIATE: Members of the jury, are you agreed upon your verdicts?  Do you find the accused, Adam Shay Sparks, guilty or not guilty of count 1, wilful damage?

SPEAKER: Guilty.

ASSOCIATE: Guilty.  Do you find the accused - so say your foreperson, so say you all?  Do you find the accused, Adam Shay Sparks, guilty or not guilty of count 2, breaking and entering premises and stealing?

SPEAKER: Guilty.

ASSOCIATE: So say your foreperson, so say you all?  Do you find the accused, Adam Shay Sparks, guilty or not guilty of count 3, breaking and entering premises with intent?

SPEAKER: Guilty.

ASSOCIATE: So say - says your foreperson, so say you all?  Do you find the accused, Adam Shay Sparks, guilty or not guilty of count 4, breaking and entering premises and stealing?

SPEAKER: Guilty.

ASSOCIATE: So says your foreperson, so say you all?  Do you find the accused, Adam Shay Sparks, guilty or not guilty of count 5, wilful damage?

SPEAKER: Guilty.

ASSOCIATE: So says your foreperson, so say you all? 

HIS HONOUR: Ladies and gentleman, I think with five verdicts there's a sufficient mixture, possibly just to short circuit the process.  Is it the case that you have arrived at identical verdicts of guilty with respect to the other seven offences?

SPEAKER: We have, your Honour.

HIS HONOUR: Well, I'll accept that as an intimation that that is the unanimous verdict of you all.  Mr Sparks is guilty of indeed all 12 offences alleged."

6. It appears that there was no response from any member of the jury to the last statement by the learned trial judge. Counsel for the appellant were present when those verdicts were taken and made no submission as to the procedure followed. Shortly thereafter the matter was adjourned until the following day. On that day with respect to each of the 12 counts the associate addressed the appellant in accordance with s 648 of the Criminal Code 1899 (Qld) following the wording set out in r 51 of the Criminal Practice Rules 1999 (Qld). 

7. The procedure adopted by the learned trial judge in taking the verdicts of the jury was a serious departure from accepted practice in the criminal courts. In consequence this Court must consider whether or not in the circumstances there has been such a miscarriage of justice that at least some of the convictions cannot be allowed to stand.

8. In Milgate v The Queen (1964) 38 ALJR 162 Barwick CJ (with the concurrence of Kitto, Taylor and Windeyer JJ) said:

"There is in Queensland neither a rule of law nor a rule of practice that a jury in a criminal trial must be told by the trial judge that their verdict must be unanimous.  The law and practice of England is the same.  The interrogation of the jury by the Clerk of Arraigns upon the return of their verdict by their foreman is the traditional method of ensuring unanimity on the part of the jury, coupled to some extent with the form of the oath individually administered to each juror. . . . But several factors lead me to think that great care should be exercised by the Clerk of Arraigns and by the presiding judge as to the manner in which the Clerk of Arraigns expresses to the jury the traditional formula: "Are you agreed on your verdict?" . . ."So says your foreman, so say you all?" . . . Therefore the Clerk of Arraigns' formula on the taking of a verdict should not be expressed in a perfunctory way nor allowed to appear as a mere statement of an assumed or concluded state of affairs, but should be clearly interrogative of the members of the jury." (my emphasis)

9. In dealing with the way in which a verdict was taken in a court in Trinidad and Tobago the Privy Council in Nanan v The State (1986) 3 All ER 248 at 255-6 quoted in full that passage from the judgment of Barwick CJ and indicated that it applied throughout the common law world.  Specifically Lord Goff of Chieveley delivering the opinion said at 255: "The crucial requirement is that the verdict should be taken from the jury by questions which are so designed to ensure, beyond all reasonable doubt, that the verdict of the jury is a unanimous verdict."

10. The critical statement of Barwick CJ was also cited with approval recently by this court in R v Conway [2005] QCA 194.

11. In R v Wooller (1817) 2 Stark 111; 171 ER 589 Lord Ellenborough is recorded as saying at 113 (590):

"The Court cannot, according to established form and precedent, receive the affidavit of a juryman in any case; but the reason is, that in general, from the circumstances, it must be intended, that the verdict was given with his assent, and his assent must be inferred from his having consented that the foreman should deliver the verdict which is delivered in his hearing."

Referring to that statement Atkin LJ in Ellis v Deheer [1922] 2 KB 113 at 120 said: "In accordance with the ordinary practice the verdict is, or ought to be, delivered in open Court by the foreman in the presence of the other jurymen, and if it is so delivered in their presence, and none of them protest, there is a prima facie presumption that they all assented to it."  That decision was discussed by the Privy Council in Nanan and Lord Goff said at 253:

"If a juryman disagrees with the verdict pronounced by the foreman of the jury on his behalf, he should express his dissent forthwith; if he does not do so, there is a presumption that he assented to it.  It follows that, where a verdict has been given in the sight and hearing of an entire jury without any expression of dissent by any member of the jury, the court will not thereafter receive evidence from a member of the jury that he did not in fact agree with the verdict, or that his apparent agreement with the verdict resulted from a misapprehension on his part."

12. What happened in this case when the verdicts were taken must be considered in the light of the reasoning in those authorities. On five occasions the members of the jury were appropriately addressed and questioned by the associate. On each of those five occasions each member of the jury was clearly given the opportunity of indicating dissent from the verdict delivered by their speaker. Clearly with respect to each of those five verdicts the presumption of unanimity applies and those verdicts are unimpeachable.

13. The summing up made it clear to the jury that there were 12 separate counts on which they had to reach a verdict. The jury also had exhibit 2 which was described as "Schedule of Facts" it listed each of the 12 counts, described the charge, described the property involved with respect to each charge, and named the complainant with respect to each charge. In the course of his summing up the learned trial judge told the jury they may use that document to assist them in separating out each of the charges when considering their verdicts. In those circumstances there could be no doubting that each member of the jury clearly understood that a unanimous verdict was required with respect to each of the 12 counts.

14. Although the course taken by the learned trial judge, after receiving the first five verdicts in appropriate form, was a gross departure from acceptable practice I have come to the conclusion that there was no miscarriage of justice in recording convictions with respect to the remaining seven counts. The other 12 jurors remained mute when the speaker responded, "We have, your Honour" to the question whether it was the case that the jury had arrived at identical verdicts with respect to the other seven counts. More importantly all jurors remained mute when the learned trial judge said that he would "accept that as an intimation that that is the unanimous verdict of you all".

15. The procedure followed could be said to be caught by the words of Barwick CJ that the verdict should not be allowed to appear as a concluded state of affairs, but whilst that is so I am of the view that there was sufficient interrogation of members of the jury to enable this Court to say that there was no miscarriage of justice in the way in which the verdict on the seven remaining counts was taken.

16. In so concluding I undoubtedly have been influenced to some extent by the fact that on the evidence it would have been perverse of the jury to have convicted on the five counts on which they did and to have returned a not guilty verdict on some or all of the remaining seven counts. Given the circumstances in which the offences were committed, and the way in which the cases for prosecution and defence were conducted, the appellant was either guilty of all or not guilty of all.

17. I now turn to the other issues raised by the appeal against conviction.

18. It was not in dispute that the appellant and other persons travelled to Roma on 6 June 2003 and ultimately booked into the Wishing Well Motel there. The appellant travelled in one car with his brother Luke, his girlfriend Cheila Marie Ardales-Smith, a friend Janice Christine Myslinski, and the appellant's baby. In the other car was Robert Jarvis and his girlfriend Ann Louise Coolwell. They took adjoining rooms in the motel.

19. There was also no dispute on the evidence that on the evening of Saturday 7 June and the morning of Sunday 8 June 2003 there was a major break-in at the Westlands Plaza shopping centre in Roma. There was ample evidence pointing to the fact that initial entry had been gained through the roof of the premises and thereafter a number of shops in the complex had been entered and property taken or damaged.

20. There was also ample evidence establishing that on the morning of 8 June 2003 a substantial quantity of property, including money, stolen from those premises was found in the two motel rooms occupied by the persons named above.

21. Luke John Sparks and Robert Roy Jarvis were charged with 12 offences identical with those with which the appellant was charged. Each of those two persons pleaded guilty to all charges. Ann Louise Coolwell, Janice Christine Myslinski and Cheila Marie Ardales-Smith each pleaded guilty to one count of receiving a quantity of the property which had been stolen.

22. The appellant was present at the Wishing Well Motel along with the other five persons charged when the police located the property there. He maintained in his evidence at trial that the two persons who carried out the principal offences were his brother Luke and Robert Jarvis.

23. Earlier, when interviewed by investigating police, the appellant asserted that the offences were committed by one Andrew Gibb, a local who was at the motel at the time the persons named above were located by the police with the stolen property. Investigations exonerated Gibb and he was not charged with any offence. In the course of giving evidence at the trial the appellant accepted that he had been aware of the involvement of his brother and Jarvis when interviewed by the police, but said that he had lied then to protect his brother.

24. The prosecution case relied heavily on evidence suggesting that shoeprints traceable to the appellant were found in the shopping centre, and the appellant's recent possession of the stolen property.

25. Sergeant S M Hall was the principal scenes-of-crime officer who gave evidence. During his examination of the area of the roof where the break-in had been effected and the adjacent ceiling he located "some two-dimensional shoe sole impressions"; one was on the exterior roofing iron of the shopping centre and another on a steel beam inside the roof directly below the hole in the roofing iron. His evidence went on: "The shoe sole impression on the steel beam inside the roof of the shopping centre was of a different shoe and contained in my mind enough characteristics or enough information that may be able to be identified or matched to a shoe so I conducted a procedure called a gel lift of that shoe sole impression." He also located a number of two-dimensional shoe sole impressions in the Guardian Pharmacy and carried out a gel lift with respect to one of those prints. It appears that in addition to the pattern of the soles there was some damage or other marking which tended to make the shoe print distinguishable.

26. Then evidence was given by Senior Sergeant B R Hall of the Physical Evidence Unit. He compared the gel lifts obtained by Sergeant S M Hall with a number of pairs of shoes. His evidence was that he formed the opinion that the left foot shoe of exhibit 20, a Vans brand shoe, caused an impression that was lifted on a gel lift by Sergeant S M Hall. He could not link the other shoes which were made exhibits with any of the gel lifts. It is not clear from the evidence which of the gel lifts obtained by Sergeant S M Hall matched the left shoe in exhibit 20 in the opinion of Sergeant B R Hall.

27. Senior Constable C R Gregory gave evidence that the suspects were asked to remove their shoes which he then tagged and put into bags. In his evidence he identified the Vans shoes, exhibit 20, as the pair of shoes which he took from the appellant.

28. In his evidence the appellant maintained that he was not wearing shoes when initially spoken to by police, including Gregory, at the motel. When the police indicated they wished to transport him to the police station he asked if he could get his shoes out of the car which was parked on the street. According to him Gregory said "No. No-one's going anywhere." According to the appellant Gregory then said that he could wear a pair of shoes on the floor in that motel room if he wanted to wear shoes. The appellant's evidence is that he told Gregory they were not his, but Gregory said, "Well, it's those or nothing". The appellant's evidence is that he believed they were his brother's shoes and he asked Luke if he could wear them. He then did so. One of the police photographs admitted into evidence showed a pair of shoes in the boot of the Luke's car outside the motel and the appellant maintained that they were his shoes and that he had placed them there the afternoon before.

29. During cross-examination Senior Constable Gregory denied the conversation as stated by the appellant and specifically that he told the appellant to put on a pair of shoes that were in the motel room.

30. The jury was clearly entitled to accept the evidence of Gregory and reject that of the appellant. If they did so, then it was open to them to be satisfied beyond reasonable doubt that the shoes, exhibit 20, were those of the appellant. It was then open to them to accept the police forensic evidence linking one of those shoes to the crime scene. The jury was certainly entitled to arrive at the conclusion that there was such a circumstance linking the appellant to the commission of the crime of breaking and entering the shopping plaza.

31. The property stolen from the shopping plaza was spread between the two motel rooms in a way which suggested a division of proceeds. A substantial amount of that property, including about one third of the cash taken, was located in the room occupied by the appellant and his girlfriend. Again the jury was entitled to reject the appellant's testimony that he was not involved in the break and enter, and regard the presence of all that property in his motel room as a circumstance strongly linking him to the commission of the principal offence.

32. Much was made on behalf of the appellant of evidence relating to the video surveillance tape obtained by the police after the break in. Apparently there were a number of video cameras outside the shopping complex which were running on the night of the break in. At the committal hearing the police evidence was that there was nothing on the tapes of assistance with respect to the charges. Detective Sergeant Wilby of the Stock Investigation Squad at Roma gave evidence at the trial that he took possession of a video tape which ran “for quite a long time”. It apparently covered the evening of 7 June and the morning of 8 June. Apparently Wilby viewed the tape and his evidence was that it did not depict anybody entering or exiting the front doors of the building. Shortly after Wilby completed his evidence the prosecution closed its case; that was the end of day three of the trial.

33. Apparently at the request of defence counsel the prosecution provided them with the tape viewed by Wilby about lunch time on day three. Thereafter one of the defence team viewed what was on the video tape. It was then observed that the video showed two male persons exiting the premises in question at about 6.54 am on 8 June; each was carrying a back pack but it was not possible to distinguish facial features. The defence became aware of that after the adjournment at the end of day three.

34. Defence counsel at trial did not allege that there had been any impropriety on the part of the prosecution in failing to disclose the existence of those images on the tape. It was accepted that for many hours the tape showed nothing and it would have been quite easy to miss the moment when the two persons were seen exiting the building.

35. When the court reconvened on the morning of day four of the trial the prosecutor asked to re-open the case in order to put in the tape. Nothing had occurred since the case for the prosecution had been closed immediately before the adjournment on the previous day; the appellant had not elected whether or not to give or call evidence. In the circumstances there was no problem in the learned trial judge giving leave for the prosecution to re-open its case. The relevant part of the tape was then played to the jury. It should be noted that there was evidence that there was a blind spot on one corner of the building, and it would have been for the jury to assess whether it would have been possible for a person to exit the building without being caught on the video.

36. The video showed one of the two male persons wearing a jumper which was identical with such an article of clothing found in the motel room occupied by the appellant.

37. The defence, both at the trial and again on appeal, contended that the video was conclusive proof that only two male persons were responsible for breaking and entering the premises and it was said that those two persons were Luke Sparks and Robert Jarvis.

38. In the course of final address by the prosecutor it was said that the video was not conclusive proof that only two persons broke and entered the shopping centre complex. It was contended, for example, either the third person could have exited through a door and not been within the range of the video, or alternatively, that the third person could have exited through the roof, the way in which entry was gained. That latter proposition was said to be realistic because bilbies stolen from one of the shops (Henderson’s Footwear) had been found in the roof near the entry point. It was suggested that the presence of the bilbies showed that someone must have climbed back into the roof area after being in Henderson's Footwear, and that could be a pointer to the fact that that was the route taken to exit the building. Count 2 on the indictment was particularised as the breaking and entering of the premises of Henderson's Footwear and stealing one bilby t-shirt and two stuffed bilby toys.

39. Sergeant S M Hall gave evidence that when he was walking around the ducting in the roof area, apparently near the entry point, he noticed “some material hanging on a wire.” He then went to that spot and “retrieved a ‘Save the Bilby’ t-shirt which was since identified as coming from Henderson’s Footwear.”

40. Exhibit 24 was described as “list of seized property”. It was prepared by the witness Senior Constable Williams and comprised some 10 pages; on the last page the following notation appeared:

“Additional Property

Bag 57

1 small Bilby fluffy toy

1 large bilby fluffy toy

1 black t-shirt bilby
(found in roof of westlands plaza by S/C Hall)

Inventory Taken by S/c WILLIAMS, Roma 8/6/2003”

41. That is all the evidence I can find in relation to bilbies. I can find nothing specific in the evidence of Sergeant S M Hall to the effect that he found one small and one large bilby fluffy toy in the roof area.

42. When cross examining the appellant the prosecutor put to him that two stuffed bilby toys were located in the motel room occupied by the appellant. The appellant denied that; he specifically said that he did not believe such toys were found in any of the rooms. A little later the prosecutor corrected himself and the record reveals him saying: “In fact, the bilby toys that I was referring to were located in the roof of the Westlands Plaza, so they had been removed from the store in which they were kept and, for whatever reason, discarded in the roof of the Westlands Plaza”. Then in his final address to the jury he again referred to the fact that he had been initially mistaken in what he put to the appellant and then referred to “two stuffed bilby toys found in the roof”.

43. Perusal of the record suggests to me that it was not clearly established where the small and large bilby fluffy toys were located. There were extensive photographs taken of the property located in the motel rooms but they do not establish the presence of bilby fluffy toys. But equally there is no positive evidence, except what can be gleaned from exhibit 24, that they were located in the roof. It seems to me that at best for the prosecution all that could be said is that one black bilby t-shirt was found in the roof area.

44. But even if there be an error by the prosecutor in what he said in his final address as to what was located in the roof, that does not detract from the general thrust of his submission. The fact that the bilby t-shirt was found there is suggestive of the fact that someone re-entered the roof area after breaking and entering Henderson’s Footwear and so there was some basis for a submission a third person could have exited through the roof. But at the end of the day even without any reference to bilbies it is clear that the video was not conclusive of the fact that only two people were responsible for the breaking and entering. On the whole of the evidence a third person could have exited the building in a number of ways without being caught on that video. I am not persuaded there was a miscarriage of justice in the way the video came to be admitted into evidence or in the way the prosecution suggested to the jury there may have been a third person involved although only two were seen on the video.

45. Counsel for the appellant sought to establish that the appellant had been prejudiced in some way because of the late admission into evidence of the video. I cannot see, in all the circumstances, that the late production of the video occasioned any miscarriage of justice.

46. As is customary in criminal trials in this State when 12 jurors had been empanelled the Crown Prosecutor read out to them the names of prospective witnesses so that a juror could draw to the court's attention any association between that juror and a potential witness. The record reveals that a number of names were read out and unsurprisingly a juror indicated some social acquaintanceship with one of the witnesses. That was dealt with by the learned trial judge. Then the prosecutor said: "There is one other matter which - a person, Rebecca Tweed may also be called." Defence counsel immediately then said: "Yes, your Honour. Your Honour, I'm calling at this time three witnesses, Karen Scheffe, from the Overlander Motel; the accused himself will give evidence in this trial, your Honour; and also Rebecca Tweed, Manager of Just Jeans." The judge then asked the jury whether any of the additional names they had heard occasioned any of them any problem in sitting as a jury.

47. On the hearing of the appeal counsel for the appellant submitted that had she been aware of the video tape showing only two male persons exiting the subject premises she would not have, or may not have, intimated that the appellant would give evidence. It was submitted that in some way there was some unfairness to the accused because of what transpired. I cannot see that there was any such unfairness as would vitiate the trial. The statement was made voluntarily and not in response to any questioning from the bench. As it transpired Scheffe and Tweed were unavailable to give evidence but (none of their evidence having been opened) that was hardly detrimental to the appellant's case. The formal decision to call the appellant to give evidence was made after the video tape was tendered, and the appellant could well have elected not to give evidence.

48. I am not persuaded that in consequence of defence counsel making the statement referred to there was any unfairness in the trial from the appellant's perspective.

49. Counsel submitted in this court that there was also some unfairness created because the occupation of some of the potential jurors was shown as "retired" when in fact to comply with the requirements of the Jury Act 1995 (Qld) the last known occupation should have been stated.  There is no substance in that contention.

50. Counsel for the appellant also sought to bring to the attention of this court the fact that subsequent to the trial a juror had written a letter to the appellant whilst he was in custody. There is ample authority in support of the proposition that this court will not investigate the deliberations of the jury, and that appears to be what the appellant was seeking to do: R v Challinger [1989] 2 Qd R 352, R v K (2003) 59 NSWLR 431, R v Mirza; R v Connor [2004] 1 AC 1118.  The Court did not receive the letter into evidence.

51. Counsel for the appellant also submitted that there was some unfairness about the trial because of the poor acoustics in the court room at Roma. The transcript reveals that when the trial judge directed some questions to a juror the response was indistinct. That was undoubtedly because a microphone was not present in front of the juror who spoke. But that questioning was not about a matter of importance to the jury's deliberations. There was a further occasion when apparently the tape recording equipment failed and there was a short adjournment until it was rectified. I am not persuaded that there was anything in the matters raised by counsel for the appellant which resulted in the trial being unfair.

52. Counsel also made mention of some inconsistencies in the evidence, but those inconsistencies were no more than one usually finds in a trial of this length and with the number of witnesses involved. Such inconsistencies were clearly within the province of the jury and they were adequately instructed in relation thereto.

53. Then counsel for the appellant sought to make a point out of the fact that the shoes, exhibit 20, were not tested for DNA and in consequence there was no objective DNA evidence linking the appellant to those shoes. That was not something which rendered the verdict unsafe and unsatisfactory.

54. Ultimately the prosecution case depended upon the appellant being found shortly after the commission of the offences in possession of a substantial quantity of the stolen property and the fact there was some evidence linking his shoes, exhibit 20, to the break in. If the jury accepted the evidence that the shoes, exhibit 20, were the appellant's shoes, and accepted the evidence that there was a match between those shoes and a shoe print found in the premises, then that was evidence strongly associating the appellant with the commission of the crime.

55. I have come to the conclusion that there was evidence on which a reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty of the offences charged. Neither the submissions of counsel for the appellant, nor my reading of the evidence, establishes that the verdicts were unsafe and unsatisfactory.

56. In the circumstances the appeal against the convictions should be dismissed.

57. MUIR J:  I am in agreement with the reasons of Williams JA and the order he proposes.