R v Waters

Case [2023] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION:

R v Waters [2023] QCA 243

PARTIES:

R
v
WATERS, Russell Gordon
(appellant/applicant)

FILE NO/S:

CA No 109 of 2023
DC No 1212 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 20 June 2023; Date of Sentence: 21 June 2023 (Allen KC DCJ)

DELIVERED ON:

1 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2023

JUDGES:

Bond and Dalton JJA and Cooper J

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with 44 counts of misconduct in relation to public office – where the appellant was convicted on 28 counts – where the appellant was a police officer at all material times – where the appellant utilised the confidential Queensland Police Service Computer System known as QPRIME whilst at work to conduct various searches about individuals and provided the information from these searches to a commercial agent whose business was mainly debt collecting – where the commercial agent would use the information obtained from the searches including by providing it to a firm of solicitors who was his client – where the Crown case was largely circumstantial – where there was evidence of the appellant and commercial agent talking over the phone at the time of the searches, soon after the searches or the night before the searches in relation to the 28 counts on which the appellant was convicted – where there were strong correlations between the information searched on QPRIME and the information provided in writing by the debt collector to his client/solicitors – where there were also extensive admissions made at trial by the appellant – whether the verdict of the jury was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the jury returned guilty verdicts on 28 counts and not guilty verdicts on 16 counts – where the jury was directed to consider each count separately – where the evidence on each count was similar, but different in every case – whether the verdicts of acquittal can be reconciled with the guilty verdicts – whether it is necessary to identify reasons which might explain the jury verdict in every case

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where trial counsel for the appellant asked for a Shepherd direction – where the proposed direction was put in writing – where the trial judge refused to give the proposed direction – where the trial judge noted that the circumstantial evidence referred to in the proposed direction was not indispensable to the prosecution case – where the jury were properly instructed that the Crown case was largely circumstantial –…

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Details
AGLC
R v Waters [2023] QCA 243
Case
[2023] QCA 243
Decision Date

CaseChat Overview and Summary

In the matter of R v Waters, the appellant, a police officer, faced charges related to misconduct in public office. The appellant was found guilty on 28 counts and acquitted on 16 counts after a trial. The case centred on the appellant's use of the QPRIME system, a confidential Queensland Police Service Computer System, to conduct searches on individuals and subsequently provide the information to a commercial agent involved in debt collection. The Crown's case was largely circumstantial, relying on phone conversations between the appellant and the commercial agent, correlations between searched and provided information, and admissions made by the appellant during the trial. The appellant appealed against the conviction and sentence on various grounds, including the unreasonableness of the verdict, inconsistent verdicts, misdirection or non-direction by the trial judge, and errors in sentencing.

The legal issues before the court were whether the jury's verdict was unreasonable or insupportable having regard to the evidence, whether the inconsistent verdicts could be reconciled, whether the trial judge erred in not providing a Shepherd direction or an extended unanimity direction, and whether the trial judge erred in failing to make certain factual findings more favourable to the applicant when sentencing. The court considered the evidence presented, including admissions and specific evidence from witnesses, to determine the sufficiency and reliability of the evidence to support the jury's verdict.

The court found that the jury's verdict was not unreasonable, as there was ample evidence upon which the jury could act, and the Crown's case was largely circumstantial but consistent, coherent, and strong. The court also found that the inconsistent verdicts could be reconciled, as the jury followed the judge's instruction to consider each count separately and applied the requirement that all ingredients must be proved beyond reasonable doubt. The court rejected the appellant's argument that the trial judge erred in not giving a Shepherd direction or an extended unanimity direction, as the circumstantial evidence was not indispensable to the prosecution case and the jury was properly instructed. Finally, the court found that the trial judge did not err in failing to make certain factual findings more favourable to the applicant when sentencing.

The final orders of the court were to dismiss the appeal against conviction and the application for leave to appeal against sentence. The appellant's conviction and sentence were upheld, and no further appeals were permitted.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In relation to the counts where Spreadborough’s business received payment from the solicitors firm for information received, there was direct evidence of a financial benefit to Spreadborough in receiving the information from the impugned searches. In respect of the other counts on which the jury returned a guilty verdict, there were admissions at paragraphs 16 to 23 of exhibit 1 which were capable of establishing that the information from the impugned searches was of benefit to Spreadborough.Specific Evidence from Postlethwaite In relation to three of the counts upon which the jury returned guilty verdicts (9, 43 and 44) Ms Postlethwaite gave specific evidence which supported the Crown case.Counts 9 and 10 On both these counts the jury returned guilty verdicts. Count 9 concerned information relating to Shaun Bunn. Formal admissions showed that on 19 June 2010, at a time when the appellant was rostered to work, someone used his identity number to access QPRIME at 3.37 pm. At 3.35 pm the appellant had begun a telephone conversation with Spreadborough. That call lasted eight minutes and 20 seconds. Annexure A showed that the parts of QPRIME information which were accessed during the 3.37 pm search included:“Criminal offences, street check results, traffic infringements, address, information about associates of Mr Bunn including their phone numbers and addresses. One of those associates was Vincent Spreadborough, the son of Robert Spreadborough.” Four minutes later, at 3.41 pm, while the appellant and Spreadborough were still on the phone to each other, the appellant’s identity number was used to make a QPRIME search of Andrew Rayward, count 10. The parts of the QPRIME system accessed were:“Full name, address, phone numbers, Queensland transport licence details, traffic infringements, street check results, information about associates of Mr Rayward.” Ms Postlethwaite’s evidence was that Shaun Bunn was a friend of Mr Spreadborough’s son. Mr Spreadborough’s son had bought a new car. The son and Mr Bunn had gone out. The son had too much to drink, so Mr Bunn drove the car home. On the way he crashed it. There was a problem with the insurance, “so the loan still had to be serviced, so I wrote a cheque out to pay the car off, and then we started a claim against [Shaun] Bunn to recover money” – t 3-40. Ms Postlethwaite further recalled that:“[Shaun] was living at home and he agreed to pay, and he made several payments and then he stopped making payments. And so upon [Mr Spreadborough] trying to find him, we could not find where he moved to, and, of course, his parents wouldn’t tell us. So [Mr Spreadborough] said, ‘I’ll get [the appellant] to find him’, which he did.… We went back and negotiated to restart paying the moneys, which he did for quite a while, from memory. And then he disappeared again. So, from memory, [Mr Spreadborough] went back to ask [the appellant] to find him again.” – tt 3-40-41.There was no cross-examination on that topic.

Decision

Reasons for decision

Counsel for the appellant did briefly essay cross-examination of Ms Postlethwaite as to this hypothesis. She did allow that sometimes Mr Spreadborough would “provide information about who he was investigating” to the appellant – t 4-15. However, in the context of the cross-examination, that was not a description of Mr Spreadborough acting as an informant, but a description of Mr Spreadborough, “talking about a person that [he] was looking for, talking to [the appellant], and then giving him a registration or a name of an address to follow up” – t 4-15.Conclusion as to Unreasonable Verdict In relation to the 28 counts where the jury returned a verdict of guilty, it seems to me that there was more than ample evidence upon which the jury could act. Much of it was contained in admissions, and the evidence in Annexure A to exhibit 1 was of a type which made it highly reliable. As discussed, there was no reason why the jury could not have found Ms Postlethwaite’s evidence reliable and credible. While there were legitimate criticisms of the way the CCC had conducted the investigation, it seems to me that the evidence which was adduced from the investigation was consistent, coherent and amounted to a strong circumstantial case. There was no reason why deficiencies in the investigation must have given the jury cause for a reasonable doubt as to guilt. The Crown case was largely circumstantial but, in my view, there was nothing to suggest that the jury could not have been satisfied to the requisite standard on the whole of the evidence.[6] A rational jury could well have rejected the informant hypothesis as a possibility which might give rise to a reasonable doubt in relation to any of the counts. That left them with a strong body of evidence in support of the Crown case.[6]M v The Queen (1994) 181 CLR 487; Dansie v The Queen (2022) 403 ALR 221.Inconsistent Verdicts The second ground of appeal was that the jury’s verdicts of not guilty on 16 counts were not able to be reconciled with the verdicts of guilty on the 28 counts just discussed. This Court recently set out the principles relevant to determining whether a jury’s verdicts are inconsistent in the relevant sense in R v Silcock:“In R v GAW [2015] QCA 166 Philippides JA (with whom Margaret McMurdo P and Holmes JA agreed) by reference to M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MacKenzie v The Queen (1996) 190 CLR 348 summarised the principles concerning inconsistent verdicts as follows:‘The principles concerning inconsistent verdicts are well‑established. Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of “logic and reasonableness”; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because “no reasonable jury, who had applied their mind properly to the facts in the case could have arrived” at them.However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:“... 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 that regard, “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 on one count; a function which has always been open to a jury.It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.’”[7][7][2022] QCA 234, [73].

Ratio Decidendi

Legal Principle Established

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