R v Waters

The appellant was convicted on 28 out of 44 counts of misconduct in relation to public office. On appeal, the appellant argued that the verdicts were inconsistent such that it required the Court to intervene, quash the convictions and order a retrial. The Court of Appeal dismissed that ground of appeal, finding that while it “is impossible to state hard and fast rules”, a court can only intervene where there is more than a mere inconsistency and where the inconsistency rises to the point that intervention is necessary to prevent a possible injustice. Two other grounds were raised on appeal which are not the subject of this note.

Bond and Dalton JJA and Cooper J

1 December 2023

Factual background

The appellant had formerly been a police officer. [4]. He was charged with 44 counts of dealing with information with intent to dishonestly gain a benefit for another. After a trial, a jury convicted the appellant of 28 of those counts. [2].

The appellant contested the conviction on three grounds. [3]. The first ground submitted that the jury verdict was unreasonable so that the appellant was entitled to acquittal. The second ground was that the guilty and not guilty verdicts were inconsistent with each other such to make the convictions unsafe. The third ground related to a Shepherd direction which was not given. [3]. The second ground forms the subject of this note.

The appellant was employed as a police officer from February 1977 until December 2016. [4]. The conduct the subject of the trial occurred between 20 January 2010 and 26 April 2016. [9]. During this time, the appellant accessed the police QPRIME database and provided information to benefit a man named Spreadborough who operated a debt collection business. [25]–[27].

A large table summarising findings of a Crime and Corruption Commission (“CCC”) investigation was tendered at trial, [24] and very detailed admissions were made. [50]. A former employee of Spreadborough’s gave evidence [35], along with two character witnesses for the appellant. [5]–[8].

Despite legitimate criticism of the CCC investigation, the evidence was nevertheless found to be consistent, coherent, and amounted to a strong circumstantial case. [64]. The appellant argued that the acquittals on 16 counts were not able to be reconciled with the guilty verdicts on 28 counts. [65].

Inconsistent verdict

The principles set out in R v Silcock [2022] QCA 234 are relevant to determining whether a jury’s verdicts are inconsistent. [66].

In Archbold (Criminal Pleading, Evidence & Practice 2016, Sweet & Maxwell, 7-70), inconsistent verdicts are categorised as a variety of unsafe and unsatisfactory verdicts. [121]. This is consistent with the view of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 (“MacKenzie”) and Jones v The Queen (1997) 191 CLR 439 (“Jones”). [121].

In R v R [2001] QCA 142, McPherson JA considered that Jones was the leading authority on inconsistency of verdicts but noted that even where an inconsistency is established, this will not necessarily entitle an accused to an acquittal. [122]. There is a distinction to be made between cases where a verdict is unsafe and unsatisfactory because verdicts are inconsistent, compared to those where a verdict is unreasonable (that being, one which no properly instructed jury could deliver) and where an appellate court might intervene. [122].

The High Court of Australia in MacKenzie discussed the jurisprudential conflict that exists between the inscrutability of a jury verdict and the difficulty with verdicts which are so inconsistent that it is not in the interests of justice that they can stand together. [123]. Reference was made to the fact that the jury is the “constitutional tribunal for resolving disputed factual questions” and the jury, by its nature, does not give reasons. For these reasons, a court will be reluctant to “undermine jury verdicts” or otherwise infer that jurors “have done otherwise than their duty as committed to them by law.” [123].

The joint judgment of MacKenzie distinguishes cases of legal inconsistency (for example, where a person is guilty of both stealing and receiving, or of murder and attempted murder) from those where a factual inconsistency arises. [124]. A court will only consider intervention where the inconsistency rises to the point that intervention is necessary to prevent a possible injustice. It is impossible to state hard and fast rules for when a court will intervene, and each matter will depend on the facts of the case. [124].

Court of Appeal’s judgment

The Court dismissed the appeal, with Dalton JA noting the difference between cases of legal inconsistency and cases where factual inconsistency arises, and finding that the present case fell into the second category of factual inconsistency, and so was governed by the test that mere inconsistency is not sufficient. [124].

Ultimately, the Court did not intervene for three reasons: [127].

(1)In a trial where 44 counts were presented to the jury, their verdicts on 42 counts were reconcilable. While the Court doubted that the jury had taken something approaching a merciful approach to counts 23 and 24, there was something about those counts which the jury recognised as creating a reasonable doubt in relation to them, but not others. The Court found that the jury had otherwise brought in careful, consistent and reconcilable verdicts on a large number of counts, which indicated that the jury had appeared to act logically and rationally such that the Court would not intervene. [127].

(2)There was a strong Crown case on the counts on which the jury returned a verdict of guilty, which meant it would not be dangerous to let the convictions stand on counts where there was a possible inconsistency. The Court was of the view that there was no real possibility an innocent person has been convicted on these counts because the jury “must have been confused or compromised.” [128].

(3)it is not always possible to entirely reconcile differing verdicts from a jury. [129] The remarks of King CJ in R v Kirkman (1987) 44 SASR 591 (“Kirkman”) were cited, noting that a jury’s application of “innate sense of fairness and justice in place of the strict principles of law” were “part and parcel of the system of administration of justice by juries.” Kirkman, which was cited with approval in MacKenzie, noted that appellate courts should not be too ready to conclude that a jury acted unreasonably in arriving at a guilty verdict, in circumstances where a guilty verdict cannot be strictly reconciled with an acquittal on another count. [129]–[135].

In dismissing the appeal, the Court of Appeal agreed with the comments of Sifris AJA in Keefe v The Queen; Simpson v The Queen [2014] VSCA 201, in stating that where verdicts are inconsistent, “the Court must be careful not to speculate in too much detail as to what the jury might or might not have made of the evidence.” [136].

A Hughes of Counsel