Carrott v The Queen
[2013] VSCA 90
•26 April 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0009
| DONALD CARROTT | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY, WEINBERG and PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 April 2013 |
| DATE OF JUDGMENT | 26 April 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 90 |
| JUDGMENT APPEALED FROM | DPP v Carrott (Unreported, County Court of Victoria, Judge Wischusen, 19 December 2012) |
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CRIMINAL LAW — Appeal against conviction — Appellant charged with 67 counts of theft — Acquitted on counts 1-28 and 64-67 — Convictions on counts 29-63 — Sentenced to one (1) year and ten (10) months’ imprisonment with one (1) year to be served and ten (10) months’ suspended — Whether verdicts are inconsistent and therefore unsafe and unsatisfactory — Appeal allowed — Acquittals entered on counts 29-63.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr B Walmsley SC with Ms M E Casey | Victoria Legal Aid |
| For the Crown | Mr B F Kissane with Mr Y K Hardjadibrata | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
For the reasons explained by Priest JA, I agreed in the orders made by the Court on 17 April and I further agree that the appellant should now be acquitted on Charges 29‑63.
WEINBERG JA:
I joined in the orders made on 17 April 2013, and I now join in the order that acquittals be entered on charges 29 to 63, for the reasons expressed in the judgment of Priest JA.
I add only that the Crown’s initial position that a retrial should be ordered posed some difficulty in light of the authorities. In cases of this kind, where an appeal is allowed solely on the basis of an ‘inconsistent verdicts’ ground, the order most often made is the entry of a verdict or verdicts of acquittal.[1] Rarely is a retrial ordered.[2]
[1]See, eg, in this Court, R v JGVR [2001] VSCA 8; MAR v The Queen [2001] VSCA 165; R v Allen [2006] VSCA 3; R v J A [2008] VSCA 169; R v Benis [2010] VSCA 62; B W A v The Queen [2012] VSCA 218; C J J v The Queen [2012] VSCA 196. See also the cases set out in the judgment of Spigelman CJ in R v Markuleski (2001) 52 NSWLR 82, 90.
[2]See, eg, R v Crisologo (1997) 99 A Crim R 178; R v Robinson (2000) 111 A Crim R 388.
Whether the Crown’s initial stance was open, either conceptually or as a matter of law, need not, in light of the Crown’s current position, be explored in any depth. I note simply that if the Crown is to argue, in a case such as this, that a retrial is the appropriate order, it should be in a position to deal fully with that issue, and any relevant authorities, during the course of the appeal.[3]
[3]MacKenzie v The Queen (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ); R v P [2000] 2 Qd R 401. See also, and more generally, CRR v The Queen (2011) 32 VR 321, 325 (Ashley JA and Hargrave AJA).
PRIEST JA:
Introduction
Following oral argument, on 17 April 2013 the Court made orders granting the application for leave to appeal against conviction, allowing the appeal and quashing the convictions and sentences on charges 29 to 63 on the Indictment. The appellant was admitted to bail. Since there was a dispute at that time as to whether there should be orders for acquittal or for a retrial, a timetable was set by the Court for the filing of written submissions addressing that issue.
In the result, the respondent conceded that there should not be an order for a retrial, and that acquittals should be ordered on charges 29 to 63. That concession was properly made, and, in my opinion, the Court should order that there be a judgment of acquittal on those charges.
These are my reasons for joining in the orders made on 17 April and for proposing judgment of acquittal.
Convictions and sentences
The appellant was tried on an Indictment containing 67 charges of theft,[4] the offences having allegedly been committed between 14 January 2005 and 28 March 2007. Each charge alleged that the appellant stole an amount of money belonging to four specified companies (Czarny Nominees, Newman Nominees, Goodvach Nominees and Simons Nominees).
[4]Crimes Act 1958, s 74. The maximum penalty for theft is 10 years’ imprisonment.
Following a trial in the County Court commencing on 30 October 2012, on 3 December 2012 a jury found the appellant guilty by majority verdict on 35 charges of theft (charges 29 to 63 inclusive). The jury acquitted the appellant by majority verdict on 27 charges (charges 2 to 28). Verdicts of acquittal were earlier directed on five charges (charges 1, and 64 to 67).
On 19 December 2012 the appellant was sentenced to an aggregate period of imprisonment[5] of one (1) year and ten (10) months, of which ten (10) months was suspended[6] for a period of two years. An application to stay the sentence,[7] which had been made at the plea hearing on 5 December 2012, was refused.
[5]See Sentencing Act 1991, s 9.
[6]See Sentencing Act 1991, s 27.
[7]Pursuant to the Criminal Procedure Act 2009, s 309(2).
Grounds of appeal
The appellant sought leave to appeal against conviction on two grounds:
1. The guilty verdicts on each of counts 29 to 63 are unsafe and unsatisfactory in that they are inconsistent with the verdicts of acquittal returned on counts 2 to 28, and;
2 The guilty verdicts on each of counts 29 to 63 are unsafe and unsatisfactory in that the jury, if acting reasonably, must have entertained a reasonable doubt as to the guilt of the Applicant.
Overview
In late 2004 the appellant was employed by E E Cummings as the General Manager of the Hotel Saville in South Yarra. At that time, E E Cummings held a lease of the premises.
Dr Daniel Czarny was a director of one of a group of four nominee companies (the ‘Czarny interests’) that owned the premises. For many years the Czarny interests had leased the premises to various tenants who had operated it as a hotel.
At short notice, in December 2004 the leaseholder, E E Cummings, abandoned its management of the hotel business, including its leasehold interest and obligations, with effect from about 28 December 2004. This was due to financial difficulties. The Czarny interests decided to keep the hotel running until the business or freehold (or both) could be sold. Hence Dr Czarny, on behalf of the Czarny interests, took over the running of the business.
The appellant was asked to continue as General Manager. He agreed to do so. From 28 December 2004 the appellant was thus employed by the Czarny interests. On 16 October 2006 the Czarny interests sold the hotel business and freehold to Simpco Solutions.
The core business of the hotel was to provide accommodation to clients who fell into one or other of two categories depending on their method of payment. First, individuals who booked accommodation directly with the hotel were required to settle their accounts immediately upon checkout. Secondly, there were guests who booked through corporate entities that included internet ‘on line’ booking agencies, for example Wotif.com, or whose accommodation was arranged by an organisation, such as the Alfred Hospital or V-Line. These corporate clients paid the hotel via direct electronic transfer, usually after the end of a month in which bookings had been made by the corporate client and the accommodation charges incurred. The counts on which the appellant was found guilty relate to payments from corporate clients falling into the second category.
Dishonesty was the sole issue in relation to each count. In his Charge to the jury, the judge described the element of dishonesty as ‘the battleground of this whole trial’.[8] The appellant conceded at the trial that all the other elements necessary to establish theft had been made out.
[8]Charge 1221. See also Charge pp 1236–7; Jury Question 1349.
The origin of the offences derived from early January 2005, when the appellant directed correspondence to certain corporate clients to the effect that the hotel was under his management and future remittances should be made to a bank account held by him alone entitled ‘New Hollandia Computers’ (‘NHC’). Thereafter, the corporate clients paid on invoice as requested, and each of such payments was the subject of one of the 63 counts on the Indictment on which a verdict was taken after trial.
The appellant’s conduct in having payment directed to NHC’s account was unknown to the Czarny interests at the time, who did not become aware of this arrangement until after the business was sold. Subsequently there occurred a confrontational meeting at the hotel between the appellant, Dr Czarny and others. The precise nature of what was discussed was disputed.
It appears that the Czarny interests had only intended to run the business in the short term as they wished to sell the premises. Despite that intention, however, the sale took longer than anticipated. Ownership was not transferred to Simpco Solutions until 16 October 2006. The appellant continued as General Manager after the Czarny interests took over the business, and he continued under the new owners, Simpco Solutions, until he ceased due to ill health. He remained living at the hotel until he moved out on 22 May 2007, which was also the day he was interviewed by the police.
In his interview, the appellant provided the police with details of the NHC account. He admitted that payments were received into the account at his direction, but he denied any wrongdoing.
During the period the Czarny interests ran the hotel business, the appellant met with Dr Czarny (who represented the owners) at the hotel on a weekly basis, usually every Tuesday. Dr Czarny was provided with detailed paperwork which included documents that set out the weekly cash takings of the hotel and miscellaneous expenses, weekly payslips of hotel employees other than the appellant, and records of the guests staying at the hotel for the particular week. None of these documents, however, or any other documents that the appellant provided to Dr Czarny, disclosed that monies from the corporate clients were being paid into the appellant’s NHC account.
After the payments from the corporate clients were received in the NHC account, at a later time (ranging from weeks to nearly 12 months) equivalent payments were made by the appellant into the Czarny interests’ account. As a result, the Czarny interests were deliberately led to believe that the corporate clients had delayed payment until the funds were transferred by the appellant into their account. The deceptive conduct was deliberate because the appellant provided monthly ‘outstanding charges’ documents to the Czarny interests which noted corporate client transactions as unpaid when in reality the relevant sums had already been transferred into the NHC account. At their weekly meetings the appellant told Dr Czarny that payments from corporate clients were slow. This assertion was supported by the outstanding monthly payment documents he provided to Dr Czarny.
The outstanding monthly charges documents did not disclose the date that payments were made into the NHC account, but only the date and method of payment to the Czarny interests’ account. The method of payment recorded on these documents did not reveal that monies were being paid from the appellant’s NHC account, but showed that payment was by a credit card, such as Amex, Visa or Diners, or by way of cheque or direct deposit. Outstanding monthly charges documents in any month included charges incurred by corporate clients over a period of time, and not necessarily those for a particular month.
Over the 20 month period that the appellant managed the hotel, the delay between receipt in the NHC account and payment to the Czarny interests increased. By November 2006 the appellant was making payments reflecting those made by corporate clients almost a year earlier.
The deception came to an end when the hotel was sold and the new operators discovered that corporate clients were directing remittances to the NHC account. A reconciliation exercise carried out by the informant showed that by November 2006 the appellant had reimbursed the Czarny interests for all of the accommodation provided to the corporate clients in the 2005 calendar year.
The Prosecution case
The prosecution case was that the appellant knew that he had no legal entitlement to the monies from corporate clients and his conduct was therefore dishonest. A number of matters were relied upon.
First, the appellant did not inform Dr Czarny that the corporate payments were being deposited into his account, even though he had documents or information in the form of corporate client remittances detailing those payments. He actively concealed those payments from Dr Czarny by the method in which he accounted for those payments in the monthly outstanding charges documents.
Secondly, the appellant’s motive for diverting corporate clients’ money into his account was that he needed the cash to pay for his gambling, as evidenced by withdrawals at gambling establishments shown in bank statements of his NHC account. The gambling withdrawals were extensive in 2005, but decreased in 2006 as he was increasingly using these monies to pay Dr Czarny for monies diverted into his account in 2005.
Thirdly, following the discovery in late November 2006 of the diversions into the NHC account, Dr Czarny calculated that $80,000 was still owed to him. He confronted the appellant about the monies that had been deposited into his account and the appellant, by his conduct and responses, in effect admitted committing the offences. The appellant admitted to Dr Czarny that $75,000 was in fact still owed. He showed remorse and undertook to pay the money back by various means, including withdrawing money from his superannuation fund. The appellant in an application to withdraw money from his superannuation fund dated 9 January 2007 stated that he owed $67,000 to Dr Czarny, and that if he did not repay the money he would go to gaol.
Fourthly, the prosecution’s case was that the evidence of the appellant that he acted honestly should be rejected. His explanation for the diversion of corporate client monies into his account evolved from the time of his interview with police in May 2007. At his police interview, the appellant said he had reimbursed Dr Czarny the corporate clients’ money that had been deposited into his account, after he deducted his overtime entitlements and any hotel expenses that he paid personally. He said that the dispute with Dr Czarny was in relation to his overtime entitlements. The appellant did not in fact undertake this process but paid the Czarny interests the 2005 corporate payments in full. During the interview, he said that Dr Czarny was provided with no documents that showed his overtime entitlements. At the trial, however, he produced a complete set of overtime documents for 2005 and 2006, which he said he had shown Dr Czarny. Significantly, these documents had not been shown to Dr Czarny during his evidence. Thus the trial judge allowed the prosecution to recall Dr Czarny, who denied ever seeing these documents. The appellant also produced a spreadsheet that set out corporate client payments into his account, his overtime entitlements, and hotel expenses that he had paid personally. He said this document was based on records that he had kept on his computer and which he had completed at the time. The spreadsheet showed that the hotel in fact owed him approximately $40,000. When Dr Czarny was recalled, he denied that the appellant had ever approached him at any time about substantial monies that the Czarny interests owed the appellant.
The Appellant’s Case
The appellant gave sworn evidence.
His case was that he had acted honestly and professionally as manager of the hotel. He was frustrated by Dr Czarny’s refusal to discuss his employment conditions, including overtime. Further, the constant demands upon the hotel for cash on delivery payments for services caused him to direct the corporate payments into the NHC account in order to keep the hotel running. Counsel argued on his behalf that the appellant was subsidising the operation of the hotel with his overtime and payments to suppliers. The NHC cheque book, the appellant’s overtime records and the reconciliation spreadsheet showed that the hotel and the Czarny interests in fact owed him money.
The prosecution had alleged the appellant used the money for his own purposes, including gambling, but this was disputed by the appellant. He gave evidence that, as the hotel did not have a trading account to which he had access, he used his own account and then used the money from it to pay bills on behalf of the hotel. The appellant claimed to have also followed this practise earlier during his management under both E E Cummins and Simpco Solutions. He produced his cheque book, Exhibit 23, as evidence of such payments. The appellant sought to show that he paid himself his overtime entitlements pursuant to his employment contact with E E Cummins, as detailed on his payslips, Exhibit 25. He transferred monies to the Czarny interests when there was sufficient balance in his account, as shown in the daily sheets and the monthly outstanding charge sheets. Transfers were made by the appellant to the Czarny interests at various times by direct transfer, cash and through the hotel EFTPOS machine using a number of different credit cards. All payments made to the appellant during 2005 were transferred to the Czarny interests, albeit after some delay. Some of the 2006 payments were also transferred. The appellant produced a spread sheet, Exhibit 24, showing all the transactions through the NHC account (together with hotel related transactions through his other accounts and credit cards), showing all the payments made to the Czarny interests. At the end of the balancing exercise, he calculated that, rather than owing or having stolen a large sum of money, he was in fact owed in excess of $40,000 by the Czarny interests. (This, of course, was disputed by Dr Czarny.)
In essence, therefore, the appellant’s case was that his conduct was not dishonest, or that the prosecution had failed to prove on the criminal standard that he had acted dishonestly.
The course of the trial
A total of $154,472.60 was received into the NHC account. This amount formed the basis of the 67 charges on the Indictment.
The jury were instructed on how the reconciliation exercise could be performed with the documents in the Defence Jury Book, Exhibit 2, starting with the monthly outstanding charge sheets and tracing monies from the NHC account to the Czarny interests’ account. However, the documentation disclosed by the prosecution through Dr Czarny was incomplete and accordingly the reconciliation exercise was not able to be completed for every charge.
Charges 1, 64, 65, 66 and 67 were the subject of directed acquittals at the conclusion of the prosecution case on 14 November 2012. That was because it became apparent that in relation to charge 1, the relevant monies did not ‘belong’ to the Czarny Interests, but rather to the previous management, E E Cummins. Similarly, with respect to charges 64 to 67, at its highest the evidence disclosed that the monies ‘belonged’ to the new operators, Simpco Solutions.
The jury retired to consider verdicts on the morning of Tuesday 27 November 2012. At 4.05 pm they asked the trial judge for clarification of the difference between a legal and a moral claim of right, and asked for a restatement of the elements of theft. They were, however, sent home for the day and were not directed on these matters until the morning of 28 November 2012.
At 3.45pm on 28 November 2012, the jury asked what would happen if they could not all agree. They were given a Black[9] direction and sent home to continue their deliberations again the following day.
[9]Black v The Queen (1993) 179 CLR 44.
On 30 November 2012, the jury indicated that they could not reach a unanimous decision.[10] They were then given a majority direction and sent home for the weekend. It is claimed by the appellant that at the time that the majority verdict direction was given, a number of jurors were shaking their heads.
[10]The jury sent the judge a note (T 1360): ‘Your Honour, we cannot come to a unanimous decision on any of the charges. We have exhausted all avenues. We have approached it in many different ways and cannot reach consensus. What would the judge direct us to do?’
The trial concluded at 11.45 am on Monday 3 December 2012 when the jury reached verdicts. Verdicts of not guilty were returned on charges 2 to 28, but the appellant was found guilty on charges 29 through 63.
The appellant’s submissions on the application for leave to appeal
My attempt to capture the essence of the appellant’s submissions is unlikely to do them complete justice. I understood it to be submitted, however, that the jury verdicts can be seen to fall into the two ‘simplistic’, if not ‘arbitrary’, categories given the manner in which the trial was conducted. They demonstrate inconsistency and cannot stand together. No reasonable jury who had applied their minds properly to the facts in the case, so it was argued, could have arrived at the conclusion that the present jury did. The verdicts represent an affront to logic and common sense.
The appellant’s counsel submitted that the initial focus on dishonesty must have started with a consideration by the jury of the appellant’s state of mind, either honest or dishonest, when first contacting the corporate clients with the direction as to payments of invoices (which was early in 2005). By the verdicts of not guilty on charges 2 to 28, that issue must have been determined in favour of the appellant.
There was no evidence, it was submitted, of any event, or of any different conduct of the appellant, which was explicable of findings of dishonesty from charge 29 onwards. (Charge 28 related to 15 December 2005, while charge 29 – which represented the first of the guilty verdicts – related to conduct a little over a week later, on 23rd December 2005.)
The appellant submitted that the crucial documents – the daily sheets, the weekly takings sheets, the monthly outstanding charge sheets for the various months, the handwritten reconciliation sheets and even the EFTPOS machine printouts – and the evidence of the appellant, provide evidence for the entire period of a continued pattern of hotel trading, with re-occurring income and expenditure, but without any hint of altered management. Any analysis, it is submitted, fails to identify a possible distinguishing feature on the evidence rationally capable of explaining two sets of verdicts.
Attention was drawn to the jury’s declaration that they could not agree, compared with the later position that the jury returned majority verdicts of not guilty on charges 2 to 28 (indicating that one juror must have satisfied of guilt on those charges), and guilty verdicts by majority on charges 29 to 63 (indicating that another juror was not satisfied of guilt). It was argued that it is difficult to resist the conclusion that the verdicts represented compromise or were otherwise perverse.
Something was also sought to be made of the time taken for deliberation, the suggestion being that the jury verdicts are explicable in that their return was a way of bringing the jury’s task to an end.
The respondent’s submissions on the application for leave to appeal.
Briefly summarised, the respondent argued that the guilty verdicts on charges 29 to 63 were not inconsistent with the acquittals on charges 2 to 28. As to the guilty verdicts, by a majority the jury accepted the prosecution case. That case was a circumstantial one on the issue of dishonesty, supported to some extent by admissions. The majority may have accepted the admissions by the appellant relied upon by the prosecution, but confined acceptance of those admissions only to charges 29 to 63. In this regard, it was submitted that the admissions made by the appellant were of a debt he owed to Dr Czarny which approximated the monies appropriated under charges 29 to 63. Thus the total sum of monies appropriated by the appellant on those charges was $90,083.90, and Dr Czarny’s evidence was that the appellant admitted to him in late November 2006 that the corporate monies he owed Dr Czarny were in the sum of $75,000.
Inconsistent verdicts: applicable principles
Verdicts which are inconsistent render convictions unsafe and unsatisfactory.[11]
[11]MacKenzie v The Queen (1996) 190 CLR 348; 141 ALR 70; 71 ALJR 91; 90 A Crim R 468; 357 (CLR).
Much of the learning on inconsistent verdicts was gathered together and digested in the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie.[12] Their Honours conveniently set out six propositions[13] (which are greatly abbreviated here). It was said:
[12]Ibid.
[13]MacKenzie v The Queen, Ibid 366–9 (CLR) (citations omitted; emphasis added). See also MFA v The Queen (2002) 213 CLR 606; 77 ALJR 139; 135 A Crim R 361; 193 ALR 184; Jones v The Queen (1997) 191 CLR 439; 72 ALJR 78; 98 A Crim R 107; 149 ALR 598; R v Bacash [1981] VR 923; R v Nanette [1982] VR 81; (1981) 3 A Crim R 268; R v Kirkman (1987) 44 SASR 591; R v Dell'Albani (1990) 49 A Crim R 294; R v Celebicanin (1991) 53 A Crim R 374; R v Appleby (1996) 88 A Crim R 456; R v Ware [1997] 1 VR 647; R v Harvey [1997] 2 VR 121; R v Miller [2007] VSCA 249; Finn v R [2012] VSCA 46.
From a review of the cases, a number of general propositions can be stated:
1.A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve …
2.Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events …
3.Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness …
4.Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries …
5.Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’ …
6.The obligation to establish inconsistency of verdicts rests upon the person making the submission …
When setting out these six propositions, Gaudron, Gummow and Kirby JJ expressed their agreement with the following ‘practical and sensible remarks’ of King CJ in Kirkman:[14]
[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
[14]R v Kirkman (1987) 44 SASR 591, 593 (emphasis added).
The verdicts are inconsistent and the convictions should be set aside
Keeping in mind the truism that every case must depend on its own facts, it is worth noting the approach of Smith AJA in Appleby,[15] a case which, in many respects, bears similarities to the present. In Appleby, the appellant had been charged with 94 counts of theft and one count of obtaining financial advantage by deception concerning property belonging to his employer. A jury convicted him of 28 counts of theft and the count of obtaining a financial advantage. The appellant’s answer to the charges did not vary as between counts where there were acquittals and those resulting in conviction. All members of the Court (Callaway JA, and Southwell and Smith AJJA) agreed that a miscarriage of justice flowed from the prejudice occasioned by the failure to sever the presentment containing such a large number of counts. But Smith AJA would also have allowed the appeal based on inconsistency in the verdicts (Callaway JA and Southwell AJA – having decided to uphold the first ground of appeal – preferring to express no conclusion[16]). With respect to several groups of counts comprising the total number, the jury relevantly acquitted the appellant on 24 counts, yet found the appellant guilty on 26 counts. Smith AJA said:[17]
[15]R v Appleby (1996) 88 A Crim R 456.
[16]Ibid 457–8 (Callaway JA); 459 (Southwell AJA). Callaway JA acknowledged that ‘a jury must be allowed some leeway’; bit that, in saying that, he should not be ‘taken as receiving without qualification the statement of King CJ in Kirkman …’. I note that judgment in Appleby was handed down on 14 June 1996, some months before judgment was delivered by the High Court in MacKenzie (on 3 December 1996).
[17]Ibid 472.
In light of the above it is not possible to explain satisfactorily the conviction in the first two groups of counts when they are compared with the relevant acquittals. In particular, I am persuaded that the inconsistencies that I have described in the verdicts are such that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the convictions in the first and second groups of counts and the acquittals in those counts to which I have referred. Accordingly, the convictions should be viewed as unsafe and unsatisfactory …
And he observed:[18]
In essence my assessment of the verdicts in the present case is that they are irrational and due in large measure to the pressure the jury was under because of the large number of counts.
[18]Ibid 473.
Smith AJA’s assessment of the case confronting the Court in Appleby reflects my view of the case at hand.
I can see no reason founded in logic or commonsense which might justify the different verdicts in the present case. The justification for the difference posited on this application by the respondent is to my mind unpersuasive. It is submitted that the prosecution case was circumstantial as to the issue of dishonesty, but that the circumstantial case as to dishonesty partially was supported by admissions. The respondent argues that the jury by a majority may have accepted the admissions relied upon, but ‘confined’ the admissions only to their consideration to charges 29 to 63. In my opinion, the irrationality of such an approach, and its inability to support the convictions, is manifest. There is no sensible basis, in my view, upon which the admissions could be so ‘confined’. For a jury to so confine the admissions would be unreasonable, if not capricious.
Another possible basis for the differentiation between verdicts might be found in the trial prosecutor’s arguments advanced to the trial judge on the application to stay the sentence (which, as I have already observed, was refused). The prosecutor argued that the point of distinction between the guilty and not guilty verdicts was that in respect of all the not guilty verdicts (save, perhaps, Charge 29), the amount that the charge alleged had been stolen had been repaid. Thus it was not unreasonable or illogical, so it was submitted, for the jury to have a reasonable doubt as to dishonesty in relation to charges where the whole of the money was repaid and no such doubt in respect to charges where none, or only some of the money, had been repaid. Moreover, when one calculated the amounts to which the guilty verdicts relate, the total sum of $90,083.90 was not, so it was also submitted, far from the amount that Dr Czarny said was outstanding. Further, it was an amount that was not far either from the amount that the accused allegedly had volunteered in the admission Dr Czarny said had been made at their initial meeting. To my mind these arguments also are unpersuasive.
Both the prosecutor and defence counsel put their respective cases on the basis of ‘all or nothing’. Either the appellant was guilty of all of the 62 charges, or not guilty of all.[19] Although the judge correctly directed the jury that separate consideration was required of each count, the fact remained that counsel at each end of the Bar table urged that all of the verdicts on each of the counts – whether guilty or not guilty – should be the same.[20] Given that the only element of theft in issue on each charge was that of dishonesty, such an approach was realistic.
[19]Charge 1230.
[20]Charge 1231.
The jury were not bound, of course, to adopt the process of reasoning urged upon them by counsel. And as a matter of strict theory and principle, the jury were required to examine each count separately in light of the evidence applicable to it. Nonetheless, as the judge instructed the jury, ‘the thefts alleged occurred in nearly identical circumstances and you may find that much, or even all, of the evidence is relevant to all of the charges’.[21] This was, as the judge directed more than once, a case involving a single issue.
[21]Charge 1231–2.
Charge 28, which represented the last of the group of counts on which the appellant was acquitted, was a theft alleged to have occurred on 15 December 2005. The first count in the group on which the verdicts were guilty, charge 29, was a theft said to have occurred a little over a week later, on 23 December 2005. It was, as I have said, been contended by the respondent that the distinction between the two groups of verdicts may lie in the fact that the first group comprised transactions where there had been repayment. In my opinion, however, rather than demonstrate logical consistency between the groups comprising the acquittals and those the convictions, this contention underscores the conclusion that there is no rational basis – in light of the way in which the case was conducted – for the differing sets of verdicts. The jury were repeatedly directed[22] that the only element of the offences in dispute, dishonesty, would be established if the prosecution proved that the appellant did not believe that he had a legal claim of right to the sums appropriated.[23] It is self-evident, in my view, that repayment of the various sums appropriated is antithetical to any notion that the appellant believed he had a legal right to the money. Presumably, had he entertained such a belief, rather than remit the relevant amounts, he would have retained them.[24] If anything, repayment might be viewed as a tacit admission of the appellant’s peculation that supported conviction – rather than acquittal – on charges 2 to 28.
[22]Charge 1221‑2, 1223, 1233, 1236‑8, 1276‑7; Jury Question 1348‑51.
[23]R v Salvo [1980] VR 401; (1979) 5 A Crim R 1; R v Bonollo [1981] VR 633; (1980) 2 A Crim R 431; R v Brow [1981] VR 783.
[24]An intention to permanently deprive was not distinctly put in issue by the defence.
I should make two further points. First, apart from the considerations I have already discussed, another reason for doubting that the jury returned verdicts of not guilty where payment had been remitted, and verdicts of guilty only on those charges where no money had been transferred (or the reconciliation was incomplete), springs from the fact that several guilty verdicts were returned in relation to charges where there apparently had been repayment. Charges 29, 30, 31, 32, 34, 36 and 44 all fell within the ‘guilty’ group of verdicts, yet the documentary evidence[25] that was before the jury seems to establish that repayment had been made of part at least the sums which were the subject of these counts. That being so, the assertion that the guilty verdicts represent transactions where there was no repayment – left unqualified – is strictly not accurate. In my opinion, the fact that several of the guilty verdicts were in cases where there had been repayment renders the prosecution’s justification for the differing verdicts more dubious, and adds to the impression that the jury may simply have drawn an arbitrary line through the Indictment.
[25]Defence Jury Book, Exhibit 2.
Secondly, the respondent also sought to explain the verdicts by an argument that has several steps. It was submitted that the sum allegedly appropriated in relation to the guilty verdicts, charges 29 to 63, was $90,083.90. Next, it is argued that the appellant had admitted to Dr Czarny in late November 2006 that the corporate money he owed was $75,000.[26] There were documents[27] showing the payment of money the subject of charges 29, 30, 31, 32, 34, 35, 36 and 44 which totalled $14,463. Deducting this amount from $90,083.90 leaves a sum approximating the amount of the appellant’s alleged admission, $75,620.90. However, there was also evidence that full repayment had not been made with respect to the sums in charges 30,[28] 32,[29] 34,[30] 35,[31] 37[32] and 44,[33] the total of the non-payment being $8,503. If the jury accepted the underpayment, the total owing to the Czarny interests in relation to charges 29 to 63 would be $81,580, which is a figure very close to Dr Czarny’s calculation that the appellant owed approximately $80,000. Added to this, so it was submitted, the appellant sought ot withdraw $67,000 from his superannuation fund. Ultimately, the respondent submitted that the ‘upshot’ of this evidence was that, although the precise amount owed by the appellant remained unclear, he had made admissions of owing an amount to the Czarny interests ‘referable to the charges upon which the jury by a majority returned verdicts of guilty’. In my opinion, this somewhat convoluted argument is unpersuasive.
[26]Compare Czarny, T 215–6; Appellant, T 987–90.
[27]Defence Jury Book, Exhibit 2.
[28]The sum of $612 of a total $4,905 unpaid.
[29]All but $9.00 of a total of $450 unpaid.
[30]The sum of $2,857.50 of a total of $2,830.50 unpaid.
[31]The defence claimed that the sum of $600 was paid in cash.
[32]There was a dispute at trial as to whether the $2,500 owing was repaid.
[33]The sum of $2,195 of a total of $2,481.40 being unpaid.
The submission that the convictions on charges 29 to 63 are explicable on the basis of admissions merely underscores, in my view, the strongly held impression that there is no logical basis for the verdicts. If correct, it would mean that the jury must have accepted the content of the appellant’s admissions when it came to charges 2 to 28, yet discounted the same admissions when it came to 29 to 63, while at the same time making no allowance for the repayments on the sums in charges 29, 30, 31, 32, 34, 35, 36 and 44. In my opinion, no jury employing a sound and consistent process of reasoning could have reached verdicts in this manner. The respondent’s submissions in this regard cannot be accepted.
I can see no rational basis for the verdicts of guilty side by side those of not guilty. The distinct impression that I have is that these were verdicts borne of compromise, rather than any proper process of reasoning. Moreover, in my view the convictions cannot be saved by resort to some ‘innate sense of fairness and justice’ whereby it appeared to the jury that although a number of counts had been ‘technically proved’ justice was ‘sufficiently met by convicting him of less than the full number’. If the point of distinction between the two groups of verdicts was indeed that verdicts of not guilty were returned on those counts on which repayment had been effected, in my view that would simply give weight to the idea that the verdicts are unreasonable.
For these reasons, the first ground should be upheld, and the verdicts on charges 29 to 63 not be permitted to stand.
Unsafe and unsatisfactory verdicts
Since the verdicts of guilty are inconsistent with those of not guilty, the convictions must be regarded as being unsafe and unsatisfactory.
Given that the respondent concedes that acquittals should now be ordered with respect to charges 29 to 63 – a concession which, in my view, was entirely proper – ground 2 need not be further considered.
Conclusion
The appeal must be allowed, and the convictions and sentences must be set aside.
Section 277 of the Criminal Procedure Act 2009 provides that if the Court allows an appeal against conviction, it must set aside the conviction and either order a retrial or a judgment of acquittal. Senior Counsel pressed a number of considerations which, he submitted, should lead the Court to exercise its discretion to enter a judgment of acquittal.[34] They included that a retrial would be ‘unworkable’; there had been unacceptable delay in charging the appellant and bringing him to trial; any retrial would not take place until well into next year, further exacerbating the already unacceptable delay; and the appellant had served four months’ imprisonment.
[34]Rabey v The Queen [1980] WAR 84, 95–96; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630; R v Talia, Centra & Maglitto [1996] 1 VR 462, 477; R v Bartlett [1996] 2 VR 687, 698; Dyers v The Queen (2002) 210 CLR 285, 314-5 [82]–[83].
The matters advanced are powerful considerations in favour of the exercise of discretion in the manner suggested by the appellant. As I have said, however, the respondent has conceded that verdicts of acquittal should be entered. Taken with the other considerations, I would regard that concession as determinative of an exercise of discretion favouring the entry of a judgment of acquittal. That being so, I am relieved from considering whether it would ever be proper to direct a retrial in a case where due to inconsistency verdicts of guilty have been held to be unsafe and unsatisfactory.
For these reasons, it was necessary to grant leave to appeal against conviction, allow the appeal, quash the convictions and sentence, and order a judgment of acquittal on charges 29 to 63.
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