Goldsmith v The Queen [2010] VSCA 99

2 On 3 October 2008, the applicant was sentenced to a term of four years' imprisonment on count 2, and nine months' imprisonment on count 5. He also pleaded guilty to a single count of possession of a small quantity of cannabis (count 6), for which he was fined $200. The trial judge ordered that two months of the sentence imposed on count 5 be served cumulatively on the sentence imposed upon count 2. The total effective sentence therefore was four years and two months' imprisonment. His Honour fixed a non-parole period of two years.

3 The applicant now seeks leave to appeal against conviction. He relies upon one ground only, namely that the convictions on each of counts 2 and 5 are unsafe by reason of their inconsistency with the acquittals on counts 1 and 3.

4 By early 2007, the applicant had been employed for some time as a Duty Manager at the Golden Nugget Hotel in Lonsdale Street, Melbourne. On the night of 27 January 2007, he was on duty, and finished work in the early hours of the following morning.

5 Shortly after 8am on 28 January 2007, a heavily disguised intruder, armed with a knife, entered the hotel premises through a hatch door leading into the cool room. The hatch door was normally kept locked, but for some reason, that morning, had been left unlocked.

6 Once the intruder gained entry to the hotel, he made his way to an area adjacent to what was described as the 'strong room'. That room contained a safe in which the hotel takings were deposited. The strong room was normally kept locked. Just outside that room, the intruder confronted the day shift manager, Mr Armando Sepe, who had just commenced his shift.

7 The intruder threatened Mr Sepe with a knife and held it, variously, to his back, neck and stomach. He did not speak but only made what Mr Sepe described as 'grunting noises'. He pointed to the strong room door, indicating that Mr Sepe should open it. That door was secured by a lock which required a pin code in order to be opened. Mr Sepe opened the door, and almost immediately fled from the scene.

8 The intruder entered the strong room and took approximately $40,000 in cash from the safe which Mr Sepe had previously left unlocked. The taking of the money was recorded on a CCTV camera.

9 As a result of the offender's actions, Mr Sepe suffered a slight injury which he described as a 'prick' to the neck. He also sustained a minor injury to his wrist.

10 The applicant was arrested some weeks later. When interviewed by the police, he denied any involvement in the robbery.

11 The central issue in the trial was whether the Crown had established that the applicant was the offender. The case against him was undoubtedly strong. He is of Maori background. Mr Sepe, who was the only witness to what occurred, described the offender as 'possibly' being a New Zealander.

12 In addition, the evidence was that the applicant knew that Mr Sepe would be alone at the premises between 8am and 8.30am on the morning in question. Mr Sepe had seen the applicant, in the city, near the Golden Nugget, shortly before the offences took place. Accordingly, the applicant had a clear opportunity to commit them.

13 The movements of the intruder inside the hotel, as shown on CCTV, demonstrated that whoever committed these offences was thoroughly familiar with the layout of the venue. The footage also indicated that the intruder knew the layout of the strong room, as he went instantly to the safe, seized the money from it, and then went immediately to another area in the strong room to take more money.

14 In addition, the intruder had gained access to the premises via a hatch leading into the cool room. The applicant's fingerprints were located on the outside of that hatch. On the evening of 27 January, the applicant had been on duty at the hotel. It had been his responsibility to make sure that the hatch was padlocked. Accordingly, he had the opportunity to ensure that it was left unlocked so that he could gain entry the following morning.

15 It was significant that the offender did not speak to Mr Sepe throughout the commission of these offences. The applicant and Mr Sepe knew each other well, and the jury would have been entitled to infer that the reason the intruder merely 'grunted' was to conceal his voice from someone who would have recognised it.

16 The applicant's record of interview was replete with lies. The jury would have had little difficulty in treating these lies as evidence of consciousness of guilt.

17 Finally, a flannelette shirt used by the intruder to disguise his face was recovered near the scene of the offences. The shirt was examined for the presence of DNA, and expert opinion was led that the applicant could not be excluded as a contributor to the DNA found on it.

18 The central issue in this trial was, as we have said, identity. For that reason, it seems odd, at first blush, that the applicant was convicted of both aggravated burglary and recklessly causing injury, but acquitted of armed robbery and theft. Clearly the one person had entered the hotel, overcome Mr Sepe, and taken the money. Prima facie, that person ought, if convicted of aggravated burglary and recklessly causing injury, also to have been convicted of armed robbery and theft.

19 It was submitted on behalf of the applicant that, in the particular circumstances of this case, the acquittals on counts 1 and 3 were logically inconsistent with the convictions on counts 2 and 5. It was further submitted that these verdicts strongly suggested that the jury had engaged in compromise, rather than giving proper consideration to the evidence in support of each count.

20 That submission was said to be supported by the length of the jury's deliberations (a total of about 14 hours), and the fact that some members of the jury had expressed concern about the time that was being taken in those deliberations. The trial judge had given the jury the usual exhortation when they first indicated they were having difficulty agreeing upon their verdicts.[1] He had also told them that he would accept majority verdicts, but in the end, unanimity was achieved.

21 The applicant's argument was presented in more detail along the following lines. It had never been in issue, at the trial, that there had been an armed robbery at the Golden Nugget Hotel on the morning of 28 January 2007, nor could it be. The defence did not challenge the assertion that an intruder, with his face disguised by a flannelette shirt, and armed with a knife, had committed that offence. There was also no issue as to whether that person, whoever he might happen to be, was guilty of theft of money taken from the safe.

22 It was submitted that if the jury were satisfied that the applicant was the person who had entered the premises with intent to steal (as they must have been in order to convict him of on count 2), and also that it was he who had recklessly injured Mr Sepe (as they must have been to convict him on count 5), it made no sense at all that he was acquitted of both the armed robbery, and the theft.

23 It was further submitted that the notion that these verdicts were inconsistent was reinforced by the trial judge's comments on the plea,[2] and in his reasons for sentence.[3] His Honour indicated some uncertainty as to how to explain the convictions on counts 2 and 5, in the light of the acquittals on counts 1 and 3.

24 One possible scenario put forward by the trial judge was that the jury might not have been satisfied that the applicant acted alone in stealing the money. It had been suggested to Mr Sepe, in cross-examination, that his evidence was neither truthful nor accurate, that there had been no struggle of the kind he described, and that he himself had been complicit in the theft from the hotel. On that view of the facts, there would not have been an armed robbery as such. That would at least explain the acquittal on count 1.

25 Counsel for the applicant submitted before this Court that such a scenario could not possibly explain the verdicts in this case. For example, the jury were directed that the absence of lawful excuse was an element of recklessly causing injury, and further directed that consent would amount to a lawful excuse. By convicting the applicant on count 5, the jury must have concluded that Mr Sepe was not 'feigning resistance' as part of some plan, or conspiracy, with the applicant. Accordingly, it was submitted, there was no rational explanation for these verdicts. The jury must have acted in complete disregard of their oaths, and engaged in some form of compromise. That, of course, would render the convictions on counts 2 and 5 unsafe.

26 In response, the Crown submitted that, although identity had indeed been the main issue in this trial, the cross-examination of Mr Sepe, suggesting that he was a party to the theft, meant that the jury had to resolve that issue as well. It was that line of cross-examination which had prompted the trial judge to direct the jury, as he had, that they should only consider count 3, the count of theft, if satisfied beyond reasonable doubt that Mr Sepe and the applicant were jointly complicit in the theft.

27 His Honour's direction to that effect was in the following terms:

The next count that I want to refer to is Count 3 that jumps Count 2 and I will go back to Count 2. I am dealing with Count 3, which is a count of theft because that arises as an alternative to the events as I have just indicated to you. You would only consider this count, that is the charge of theft, if you were not satisfied beyond reasonable doubt that the Crown had proved Count 1, or not proved to your satisfaction Count 2, the statutory alternative, being the robbery. So it's armed robbery; statutory alternative of robbery. If you were not satisfied the Crown have proved beyond reasonable doubt either of those, then you would go to consider whether there was a theft.

I direct you that you can only consider that if you were satisfied that there had been a theft from the Golden Nugget where Mr Sepe and Mr Goldsmith were the ones that perpetrated the theft; and it is that they were working together, because otherwise you would need to consider Count 1 or Count 2. So you would you only go to Count 3 if you were not satisfied beyond reasonable doubt of Count 1 or the statutory alternative of robbery. You would only consider Count 3 if you were satisfied beyond reasonable doubt that Mr Sepe and the accused were in on the theft and that they were working together and that the rest of the activities as observed in the video footage and the evidence of Mr Sepe was nothing more than a cover up for the theft and they were play acting.[4]

28 With respect, that direction was both confusing and, we think, incorrect. First, his Honour erroneously referred to count 2 as the 'statutory alternative' to count 1. Count 2 was, of course, the count of aggravated burglary. It was not a statutory alternative to the count of armed robbery. Rather, the statutory alternative to that count was the offence of robbery simpliciter.

29 Next, there was no basis that we can see for limiting the applicant's potential liability, on the count of theft, to a situation where the jury 'were satisfied beyond reasonable doubt that Mr Sepe and the accused were in on the theft'. Presumably, his Honour gave that direction because he assumed that the jury would inevitably have convicted the applicant on count 1 or count 2, provided they were satisfied that he was the intruder, and were not persuaded that Mr Sepe was party to the plan. However, as will be seen, there were other ways in which the jury might acquit on one or other of counts 1 and 2. It would have been perfectly open to the jury to have convicted the applicant of theft irrespective of whether they considered him to have been acting in league with Mr Sepe. There could be no question of consent to the taking of the money. The owner of the cash, and therefore the victim of the theft was, of course, the Golden Nugget Hotel, not Mr Sepe.

30 Having regard to the paucity of evidence to support the suggestion that Mr Sepe was involved in these offences, it is scarcely surprising that the jury, acting in accordance with his Honour's direction to them, acquitted the applicant on the count of theft. There is therefore no difficulty in understanding how the jury could convict on count 2, but acquit on count 3.

31 The verdicts reached in relation to counts 1 and 2 require more careful consideration. The Crown submitted that, rather than reflecting a compromise, those verdicts could be explained in any one of three distinct ways.

32 First, it was submitted that, on the evidence, there was a gap between the moment Mr Sepe was last subjected to force, and the actual removal of the money from the safe. That period may have been short, perhaps a matter of seconds, but it was possible that the jury had seized upon it in coming to the conclusion that force had not been used 'immediately before' the theft. In other words, the jury may have entertained a doubt as to whether the temporal requirements of the offence of armed robbery were satisfied.

33 Next, it was submitted that a possible explanation for the conviction on count 2, and acquittal on count 1, was that his Honour's charge had conveyed to the jury, albeit erroneously, that count 2 was the 'statutory alternative' to count 1. That was clearly wrong, as we have previously indicated, but it was never corrected.

34 It should be noted that earlier in his charge, his Honour had said to the jury:

The Crown does not suggest that Mr Goldsmith should be found guilty of each of these charges. They all arise from the one series of events alleged.[5]

35 There was, of course, nothing wrong with that direction. It was followed, at that stage of the charge, by a further direction as to how the offence of robbery would be regarded as a 'statutory alternative' to count 1, and how the offence of theft, as charged in count 3, would be a further alternative to either count 1, or the 'statutory alternative'.

36 The Crown submitted that, when one had regard to these earlier directions to the jury as to various alternatives, in combination with the erroneous direction given later,[6] it was at least possible that the jury had assumed that the armed robbery and the aggravated burglary were alternative counts. Given the realistic chance that they turned their attention to the count of aggravated burglary first, that offence having been committed before the armed robbery, it would be entirely understandable if the jury, having convicted on count 2, then acquitted on count 1.

37 The third explanation put forward by the Crown for these verdicts was that the jury had simply acted in a way that the Supreme Court of South Australia, in R v Kirkman,[7] foreshadowed that a jury might legitimately do. There, King CJ, with whom Olssen and O'Loughlin JJ agreed, said:

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.[8]

38 In MacKenzie v R,[9] the High Court described these remarks as 'practical and sensible'.[10]

39 When inconsistency of verdicts is relied upon as a ground of appeal, the test to be applied is well established. In MacKenzie, Gaudron, Gummow and Kirby JJ laid down a number of general propositions:

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. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.

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. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of 'differences in the evidence presented at the two trials' or 'the different views which the juries separately take of the witnesses'.

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. A judgment of Devlin J in R v Stone is often cited as expressing the test :

"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."

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. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect.

...

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. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.[11]

40 These principles were subsequently considered, and approved, by the High Court in MFA v The Queen.[12] They were recently applied by this Court in R v JA.[13]

41 The issue for this Court is whether the convictions on counts 2 and 5 can be reconciled, on some proper basis, with the acquittals on counts 1 and 3.

42 We have already indicated that, by reason of the trial judge's directions to the jury to the effect that they could only convict on count 3 if satisfied that the applicant and Mr Sepe were jointly involved in the commission of these offences, it is hardly surprising that they acquitted on that count. Although the acquittal of theft seems difficult, in one sense, to reconcile with the conviction of aggravated burglary, those verdicts are entirely explicable having regard to his Honour's charge.

43 As regards the acquittal on count 1, and conviction on count 2, we are inclined to think that the most likely explanation for what occurred was that the jury were misled by his Honour's mistaken direction in his charge into thinking that these two counts were laid as alternatives. That being so, once they convicted on count 2, they would naturally acquit on count 1.

44 It is also possible that the jury approached these two counts in exactly the way contemplated by King CJ in Kirkman. They may simply have concluded that a conviction on aggravated burglary was sufficient to meet the needs of the case, and that it would be unjust, and oppressive, to replicate that conviction by a finding of guilt of the closely related offence of armed robbery.

45 In that regard we note that the Crown readily conceded, before this Court, that the laying of charges of armed robbery and aggravated burglary, in a case such as this, would be most unusual. The two offences plainly overlap. The Crown suggested that the drafter of the presentment might have thought that two separate counts were needed because an issue might arise as to whether Mr Sepe was himself involved in the commission of these offences. In such a situation, a single count of armed robbery might have faced difficulties.

46 In any event, and for whatever reason, both counts appeared on the presentment. Curiously, the Crown at all times sought convictions on each count.

47 It would hardly be surprising, in those circumstances, if the jury regarded that as somewhat oppressive, and determined to convict on one, but not the other. Such an approach would fall squarely within Kirkman. It would not render the conviction on count 2 unsafe, or unsatisfactory.

48 The third explanation for the apparent inconsistency between the verdicts on counts 1 and 2 was that put forward by the Crown as the 'temporal', or 'immediacy', theory. We regard that as the least likely, or meritorious of the three possible explanations put forward, but it does remain a rational possibility.

49 Where, as in this case, the jury were properly directed as to the elements of each of counts 2 and 5, and the evidence in support of those counts was literally overwhelming, we are not persuaded that the acquittals on counts 1 and 3 render either of these convictions unsafe.

50 There is, as we have indicated, a perfectly plausible explanation for these verdicts. It is a curious feature of this case that that explanation is to be found, in part at least, in his Honour's erroneous charge to the jury. Such errors as were made were in no way prejudicial to the applicant. To the contrary, they operated in his favour. They do not give rise to a miscarriage of justice.

51 A court should ordinarily be loath to find that members of a jury have willingly foresworn their oaths and arrived at their verdict on the basis of compromise, rather than the evidence led at trial. There may be occasions when that is the only conclusion that can be reached.[14] However, this is not one of them.

52 For these reasons, the application for leave to appeal against conviction must be refused.

[1] Black v The Queen [1993] HCA 71; (1993) 179 CLR 44.

[2] See transcript 2794 - 2795, and 2799

[3] R v Goldsmith (unreported, County Court of Victoria, 3 October 2008, Judge Gullaci), [4].

[7] (1987) 44 SASR 591 ('Kirkman').

[10] Ibid, 368 (Gaudron, Gummow and Kirby JJ).

[11] Ibid, 366-368 (citations omitted).

[12] [2002] HCA 53; (2002) 213 CLR 606.

[13] [2008] VSCA 169, [47]-[49].

[14] R v JA [2008] VSCA 169.