R v WALSH

[2012] SASCFC 14

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WALSH

[2012] SASCFC 14

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Stanley)

2 March 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

Appellant found guilty by a jury of eight counts of possession of a firearm without a licence – appellant acquitted of five other counts of same offence – appeal against verdict of guilty in respect of one count (count 11) – whether verdict of guilty on count 11 was inconsistent with verdicts of not guilty entered in respect of four other counts where evidence was essentially identical.

Held: Appeal allowed.  Verdict of guilty cannot be explained by reference to the evidence – evidence was indistinguishable from the evidence in respect of counts which the jury entered verdicts of not guilty – evidence is distinguishable from evidence in respect of counts which jury returned guilty verdicts – verdict of guilty in respect of count 11 is unreasonable – the conviction is unsafe and unsatisfactory – verdict of guilty in respect of count 11 is set aside and verdict of not guilty substituted.

Firearms Act 1977 (SA) s 11(1), referred to.
MacKenzie v The Queen (1996) 190 CLR 348; R v Stone Unreported, 13 December 1954; MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591, discussed.

R v WALSH
[2012] SASCFC 14

Court of Criminal Appeal:  Doyle CJ, Anderson and Stanley JJ

THE COURT:

Introduction

1. The appellant was found guilty by a jury of eight counts of possession of a firearm without a licence, contrary to s 11(1) of the Firearms Act 1977 (SA) (“the Act”). He had been charged on information with thirteen counts of that offence. The jury found the appellant guilty of four counts by a majority, and four counts unanimously. He was found not guilty in respect of the remaining five counts.

2. The appellant appealed with permission against the verdict of guilty in respect of one count (Count 11) entered by majority on the ground that the verdict was inconsistent with the verdicts of not guilty entered in respect of four other counts where the evidence against the appellant was essentially identical to the evidence in respect of Count 11. 

3. On 13 February 2012, after hearing the appeal, the Court ordered that the appeal be allowed and the conviction on Count 11 be set aside, the conviction quashed, and there be substituted a verdict of not guilty.  The Court indicated it would publish its reasons in due course. 

4. The Court adopted that approach so that the sentencing submissions on the other counts could proceed unencumbered without uncertainty about the outcome of the appeal. 

5. These are the reasons of the Court for allowing the appeal. 

   Background

6. The charges related to thirteen firearms located in a toolbox in the bedroom of a house occupied by the appellant’s mother at Peterborough.  The toolbox also contained ammunition and other weapons such as fighting knives and swords.  Some of the ammunition found in the toolbox was compatible with some of the firearms.  Further ammunition, compatible with some of the firearms, was located at the appellant’s home at Craigmore.

7. The appellant pleaded not guilty to all thirteen counts.  He gave evidence in his own defence.  He denied that he was in possession of the firearms.  He gave evidence that the firearm the subject of Count 11 belonged to a former associate of his, Paul Uzzell.  This was also the appellant’s evidence in relation to the firearms the subject of Counts 2, 3, 4, 5, 7, 8, 9 and 10. 

8. The appellant was found guilty in respect of Counts 1, 2, 4, 6, 7, 12 and 13, as well as Count 11.

9. An analysis of the evidence permits the firearms to be categorised into three separate classes for the purposes of assessing the evidence weighed by the jury in reaching its verdicts.  The first category concerned those firearms which the appellant admitted in evidence had been owned by him or his late brother.  These were the firearms the subject of Counts 1, 6, 12 and 13.  The second category concerned those firearms which the appellant said belonged to Mr Uzzell, but to which he was connected by other evidence.  These were Counts 2, 4 and 7.  In respect of Counts 2 and 7, the appellant’s fingerprints were found on the firearm.  In respect of Count 4, a bolt which fitted the firearm was found in the toolbox.  The third category concerned those firearms in respect of which the appellant made no admission of ownership, and there was no other evidence to connect him to each of them.   Counts 3, 5, 8, 9, 10 and 11 fall into this category.  The jury entered verdicts of not guilty in respect of each of these counts in the third category except for Count 11, where there was a majority verdict of guilty.  It is, of course, this count which is the subject of the appeal.

10. In respect of each of Counts 3, 5, 8, 9, 10 and 11, the evidence disclosed the following common features:

    1.the firearms were located in the toolbox with firearms the subject of the other counts;

    2.there were no fingerprints matched with the appellant on these firearms;

    3.there was no admission by the appellant that any of these firearms belonged to him or his late brother;

    4.there was no item of equipment associated with any of these firearms located at the appellant’s house or his mother’s house; and

    5.the defence case was that these firearms belonged to Mr Uzzell.

    Inconsistent verdicts

11. Counsel for the appellant submitted that the guilty verdict on Count 11 is inconsistent and irreconcilable with the acquittals in relation to Counts 3, 5, 8, 9 and 10. 

12. The principles applicable to the issue of inconsistent verdicts is considered by the High Court in Mackenzie v The Queen[1].  The High Court observed that courts have repeatedly expressed a reluctance to accept a submission that verdicts are inconsistent in the relevant sense.  A jury’s conclusion will generally be accepted if there is evidence to support that conclusion, and there is a proper way to reconcile the verdicts.  The High Court observed that it is not the role of the appellate court to substitute its opinion of the facts for one which was open to the jury.  The appellate court will interfere only where different verdicts are so illogical as to suggest a failure on the part of the jury to perform its function.  The test is one of logic and reasonableness.  Each case will depend on its facts.  The High Court adopted the test in R v Stone[2] as enunciated by Devlin J, as follows:[3]

    He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.

    [1] (1996) 190 CLR 348.

    [2]    Unreported, 13 December 1954, per Devlin J.

    [3] (1996) 190 CLR 348 at 366.

13. In MFA v The Queen,[4] the High Court elaborated upon its observations in Mackenzie.  Gleeson CJ, Hayne and Callinan JJ said:[5]

    Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.

    [Citations omitted].

    [4] (2002) 213 CLR 606.

    [5] (2002) 213 CLR 606 at 617 [34].

14. In R v Kirkman[6] King CJ observed[7] that appeal courts must be cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile verdicts which had been reached by the jury with respect to other charges.  The High Court’s reference in MFA to the consideration stated by King CJ in Kirkman[8] refers to the following reasoning:[9]

    … juries 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. A jury may be quite reasonable in arriving at the verdict of guilty.

    [6] (1987) 44 SASR 591.

    [7] (1987) 44 SASR 591 at 593.

    [8] (1987) 44 SASR 591.

    [9] (1987) 44 SASR 591 at 593.

    Consideration

15. In the Court’s view, the verdict of guilty in respect of Count 11 is illogical and unreasonable. 

16. The verdict of guilty cannot be explained by reference to the evidence.  The evidence in respect of Count 11 was relevantly indistinguishable from the evidence in respect of Counts 3, 5, 8, 9 and 10 in respect of which the jury entered verdicts of not guilty.

17. This was properly conceded by Mr Petraccaro, who appeared for the DPP.  Furthermore, he accepted that the verdict of guilty in respect of Count 11 could not be reconciled on the basis discussed by King CJ in Kirkman.  The acquittals in respect of Counts 3, 5, 8, 9 and 10 cannot be explained on the basis of the jury’s sense of mercy.  The evidence in respect of Count 11 is readily distinguishable from the evidence in respect of the other counts in respect of which the jury returned verdicts of guilty, namely, Counts 1, 2, 4, 6, 7, 12 and 13.  As indicated above, in respect of Counts 1, 6, 12 and 13, there were admissions made by the appellant.  In respect of Counts 2, 4 and 7, there was evidence which connected the appellant to the firearms, namely, his fingerprints or the presence of a bolt which fitted the firearm found in the appellant’s mother’s bedroom.  Accordingly, the jury acquitted the appellant of those counts where there was an absence of evidence connecting the appellant to the firearms beyond the mere fact that they were found in the toolbox, and that there was ammunition compatible with the weapons located either in the toolbox or at his place of residence in Craigmore.  The exception was Count 11.   The evidence against the appellant on Count 11 was relevantly the same as the evidence in the counts where the jury was not able to find the appellant guilty.

    Conclusion

18. In the circumstances, the Court is satisfied that the verdict of guilty in respect of Count 11 is unreasonable, and the conviction is, therefore, unsafe and unsatisfactory.  It should be set aside and a verdict of not guilty substituted.