R v Toon

[1997] QCA 268

IN THE COURT OF APPEAL	[1997] QCA 268
SUPREME COURT OF QUEENSLAND

C.A. No. 138 of 1997

Brisbane

Before Macrossan CJ

Williams J

Byrne J

[R v. Toon]

THE QUEEN

v.

DANIEL STEWART TOON

Appellant

Macrossan CJ
Williams J

Byrne J

Judgment delivered 2 September 1997

Judgment of the Court

APPEAL ALLOWED. CONVICTION SET ASIDE AND A VERDICT OF NOT GUILTY

ENTERED WITH NO ORDER FOR A RETRIAL.

CATCHWORDS:	CRIMINAL LAW - Inconsistent verdicts - appellant acquitted of alternative counts of stealing and receiving but convicted of attempted false pretences - whether verdicts inconsistent - jury had been directed that it could only convict of attempted false pretences if it convicted on either the stealing or receiving count - no redirection sought by the Crown - whether new trial should be ordered.
Mackenzie v. R (1996) 71 A.L.J.R. 91
Counsel:	Mr M.E. Johnson for the appellant. Mr D.L. Bullock for the respondent.
Solicitors:	Legal Aid Queensland for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	25 July 1997
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 2 September 1997

This is an appeal against conviction brought on the basis that verdicts obtained from the jury were inconsistent.

The appellant and another were tried together on charges involving an electronic device described as a digital audio tape Walkman. The item had been stolen from the Mackay store of a trading company, Retrovision Pty Ltd on 24 April 1996.

The three charges on the indictment which concern the appellant were that he stole the Walkman, alternatively that he received it knowing that it had been stolen and by a false pretence made to an employee of a money lending company attempted to obtain money with intent to defraud. The appellant pleaded not guilty to all of those charges. He was found not guilty of stealing and of receiving but guilty on the false pretence count.

The appellant did not give evidence at the trial but he had been interviewed by the police so that his account was before the jury. Essentially his claim was that he had acted innocently in the matter.

The Crown case was that on 19 November 1996 the appellant and a companion, later charged with him, presented themselves at premises in Mackay where a pawn broking business was carried on under the name Cash Converters. The appellant asked for a forty dollar loan on the security of the Walkman. The employee at Cash Converters with whom they spoke already had a description of a stolen Walkman of the same model and certain checks were made while the appellant and his companion remained at the premises. The employee was satisfied that the item presented was the one that had been stolen and he accordingly arranged for police officers to attend.

Shortly before the police arrived the appellant left the premises but his companion remained. While the appellant was present at Cash Converters there was conversation relating to the proposed loan. The employee asked the appellant if he knew how much the Walkman was worth. In fact it was a very expensive model of a kind used by audio professionals and had a retail value of about eleven hundred or twelve hundred dollars. It became apparent that the appellant had no idea of the high value of the item which in general appearance closely resembled much less expensive models selling for prices ranging between about thirty and sixty dollars. The employee asked the appellant for identification. The appellant gave his correct name and also provided a Medicare card in his correct name.

On the evidence tendered at the trial the view was open that the appellant became alarmed as the checks and enquiries proceeded and that is why he departed leaving his Medicare card behind. He seems to have left in something of a hurry. He was intercepted by the police and later participated in a tape recorded interview.

The version that he gave to the police was that he was owed a sum of eighty dollars by a man called Mason and when Mason was unable to repay the amount owing, he was given the Walkman as security. During the conversation at Cash Converters the appellant had said or conveyed to the employee that he was the owner of the item.

There were matters that might raise suspicion in the appellant’s account and in his behaviour at Cash Converters. The indication that he had no real idea of the value of the item was one matter and the fact that he left the premises before the transaction was concluded leaving behind his Medicare card was another.

It was not a matter in dispute at the trial that the item had been stolen from Retrovision in April some seven months before the attempt made to pawn it or that the appellant had said or indicated to the employee that he was the owner. One possibility is that the appellant may not himself have been guilty of stealing or receiving the Walkman but nevertheless in November falsely pretended that he was the owner with intent to defraud Cash Converters. That is, earlier events associated with the theft of the item may not have involved the appellant and he may not have received it knowing that it had been stolen or recently stolen yet when he at a subsequent time sought to obtain a loan utilising it as security he may have realised that he had no entitlement to use it for that purpose. On this basis it could have been open to the jury to convict the appellant on the third count while bringing in verdicts of not guilty on the first two. This would mean that no objection could be raised to any inconsistency of verdicts. However, the matter is complicated by the way in which, with the acquiescence of the prosecutor, the trial judge put it to the jury for their consideration.

In his directions in dealing with the legal issues the judge clearly gave the jury to understand that they were not entitled to convict the appellant on the false pretences charge simply because he was not the owner. They were told that if they thought it possible that he might have been given the item by Mason as security for a loan in the way he claimed then they must acquit him: it was only if they could reject his account that he had received the item innocently that they could convict on the false pretences charge. The effect of the summing-up was that they could find him guilty on the false pretences count only if they concluded that he was guilty either of stealing the item or receiving it knowing it to be stolen. In the course of redirections the judge said this:

“So, put around the other way, you could only convict if you were satisfied that he did not believe that he had the right to deal with the object in the way that he did by reason of the fact that you are satisfied that he came by the property either by stealing it or by receiving it knowing it to be stolen.”

No request for further redirections followed and there was no dissent from the prosecutor about the way in which the judge explained to the jury the nature of the Crown case.

There will frequently be difficulties in the way of attempts to argue that there is an inconsistency amongst the verdicts returned by a jury calling for guilty verdicts to be quashed. The difficulty in the way of these arguments is likely to be increased rather than diminished by the recent pronouncements of the High Court in Mackenzie v. R (1996) 71 A.L.J.R. 91. However, the present case presents particular problems because of the basis on which the jury were directed to consider the matter. They were told that having in mind the nature of the Crown case they were not entitled to bring in a guilty verdict on the false pretences charge unless they concluded that the appellant had obtained the item in a manner inconsistent with innocence, that is by stealing it or receiving it knowing it to have been stolen. The effect of the direction was to remove from the jury the function of considering whether, when the appellant made his representations to the employee, there was some other limitation upon his entitlement to deal with the item so that he may have involved himself in a false pretence that could be regarded as fraudulent. So, although there may well have been a basis in the evidence which would support the different verdicts given, the matter was not put to the jury in a fashion that permitted a guilty verdict on the third count and not guilty on the first two. Accordingly it is impossible to avoid the conclusion that the jury acted on some essentially erroneous basis in bringing in the guilty verdict. At the conclusion of the argument on the appeal, counsel for the Crown was in the end obliged to concede the force of this criticism of the verdict. The result is that it cannot, in justice, stand.

The question then is whether there should be a retrial. In all of the circumstances, including the level of seriousness of the matter and the expense that would be involved, there should be no such order made.

The appeal should be allowed and the conviction set aside and a verdict of not guilty entered with no order for a retrial.