R v Johnstone

The appellant was convicted of various property offences, including misappropriation as an employee, under the Criminal Code. The jury returned an inconsistent and ambiguous verdict, convicting the appellant on three counts out of eight of misappropriation, while acquitting him on the others. The appellant appealed against his conviction, arguing that the verdict was ambiguous and meaningless. The central issue before the court was whether the verdict was a "merciful verdict," as there was no clear basis for differentiating between the counts on which the appellant was convicted and those on which he was acquitted. Furthermore, the court had to consider whether the defence of honest claim of right was available to the appellant, given his practice of "salary sacrificing" and the evidence that the moneys subject to the indictment were owed to him under this scheme.

The court held that the verdict, although inconsistent, was not ambiguous or meaningless. The jury had clearly differentiated between the counts on which they believed the appellant was guilty and those on which they did not. The court found that the appellant had failed to demonstrate that the verdict was a "merciful verdict" as there was a rational basis for the jury's differentiation. Additionally, the court found that the defence of honest claim of right was not available to the appellant, as the intention to defraud the Commissioner of Taxation was an essential element of the offence, and there was no evidence that the appellant honestly believed he was entitled to the moneys in question. Therefore, the appeal against conviction was dismissed.

In light of the above, the court made no orders regarding the appellant's conviction. The appeal was dismissed, and the original conviction stood. The court did not find it necessary to make any further orders in relation to the matter.