His Honour then gave a little more detail in his direction on the fourth element. If the jury had paid close attention to that description of the elements of the charge of suborning perjury, and if they had doubts as to the applicant's part in the robbery, they must also have had doubts whether Gamble's evidence given before Judge Coate was untruthful. Doubtless, according to the uncontroverted evidence at the second trial Gamble had admitted that the evidence given in those answers were not truthful, but, as the case was presented, there still had to be proof of falsity in the sense that the jury had to be satisfied of their actual falsity, for the answers of the witness Gamble as to untruthfulness were not necessarily conclusive, unless he were to be believed as to the applicant's participation in the robbery.
14 The judge also spent some time giving legal directions to the jury emphasising the legal requirements relating to the acceptance of the evidence of accomplices, including, after an exception, a direction that one accomplice could not corroborate the evidence of another. However, there can be no doubt that his detailed directions were expressed conventionally and strongly in the sense that he emphasised to the jury in unqualified terms that it would be "dangerous to convict an accused person on the uncorroborated evidence of an accomplice, either of these two men". He explained the reasons for the customary direction in some detail, the charge on this issue extending over some four pages, including references to the fact that the two witnesses were admitted armed robbers, that on their pleas and by their admissions that they had obtained special sentencing treatment and that there was no independent corroborative evidence. It is not surprising, having regard to the strength of these directions, that the jury saw sufficient in the evidence of the two robbers, especially Gamble, to create a doubt sufficient to entitle them to bring in a verdict of not guilty on the first count.
15 What is more surprising, however, is that the jury were able to overcome their doubts so far as the second count was concerned and to find the applicant guilty on that second count notwithstanding their conclusions on the first count. As to some matters it may be said that the Crown case was in fact stronger on the second count than on the first inasmuch as the two principal witnesses, Gamble and Woods, both gave reasonably clear evidence of the threats to Gamble in the van which, notwithstanding their background, may have been accepted by the jury. What, of course, is harder to comprehend is how they were able to find beyond reasonable doubt the third element, namely that Gamble had relevantly given false evidence about the applicant's presence at and participation in the robbery. This was not a case where there could be any doubt about the facts about which the witness Gamble gave evidence. Those participating in the robbery, more especially the two robbers who entered together with their guns, must have known each other's identities. There could be no doubt on the evidence that those two people, whoever they were, committed an armed robbery and so it was accepted by the defence throughout, although denying strenuously that the second participant was the applicant. There could be no question that the witness Gamble was expressing merely an opinion or a conclusion based on inference or inferences from a series of facts about which he might have been uncertain. Gamble's statement and his evidence at the second trial clearly identified the applicant as that other robber and gave elaborate detail as to his participation: His evidence on the voir dire before Judge Coate had directly denied that the applicant was there at all at the time of the robbery and it was that evidence which was alleged to be perjurious for the purposes of the second count. Whether Gamble was to be believed was the principal issue before the jury.
16 Nor is this one of those cases where, so it seems at common law, one is permitted to prove perjury or the suborning of perjury without proof of the falsity of the impugned statement. Whatever be the correctness of that approach, namely that in certain circumstances it is unnecessary to prove the untruthfulness of the perjurious statement, this was not such a case. It was opened as being false, clearly the prosecution had gone to the jury on the basis that it was false and the judge summed up by relevantly repeating this requirement that in the present case the jury were being asked to conclude and find that Gamble did in fact give false evidence at the earlier trial. Moreover, it makes no difference that the charge here is that of suborning perjured evidence for the alleged suborner had, on the Crown case, the same direct knowledge.
17 Now inconsistency does not follow as the night the day merely because juries bring in verdicts which seem to accept a witness or witnesses on one count but not on another, for the evidence in support of particular charges is infinitely various and in many trials there is other factual material which a jury may bring into account or discard so as to reach verdicts acceptable on appeal in which they find the accused guilty on one count but not guilty on another. The principles have been examined or at least applied on many occasions but most recently by the High Court in: MacKenzie v. The Queen[1]; Osland v. The Queen[2] and MFA v. The Queen[3]. The question in every case is whether the particular verdict is unreasonable or otherwise there is shown to have been a miscarriage of justice. An appellate court cannot reach that conclusion merely because it thinks it strange that a jury should have accepted a particular witness as to some counts but not as to others. An appellate court must see more before setting aside a verdict as inconsistent, for example, because a particular verdict shows the jury must have failed to follow, or at least must have positively misunderstood, the directions in law given by the judge, or, occasionally, because "the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty" on the other count.[4]
18 It is the latter inconsistency which has brought down the present verdict of suborning perjury, but it is also possible to perceive the first possibility, that of misunderstanding the judge's directions. In this respect I am not referring to his Honour's clear direction as to the need for a finding of falsity as to the suborned witness's evidence, except to suggest that the jury must have ignored that direction or passed it over, for, if they had decided to accept beyond reasonable doubt that that evidence was false, that could only be because they accepted the applicant was present at and participating in the armed robbery itself. There are other reasons why, moreover, the jury may here have misunderstood their function. One may be technically a misdirection, albeit not one specifically relied on in the grounds of application. As explained by counsel, the judge gave in many respects a full and satisfactory charge with respect to separate verdicts, an essential part of any charge to a jury where there is more than one count on the presentment. Without doubt they were told that they must consider each count separately but, unfortunately, it is more than obvious that they took that advice literally. In the course of those directions the judge said that "it would be quite wrong to say that simply because you find him guilty or not guilty of this count, then he must be guilty or not guilty of the other count". That may ordinarily be inoffensive, although the words "or not guilty" is to be eschewed merely for caution's sake, but in the present case it was neither appropriate nor correct. The jury was faced with one of those presentments in which, at least as the case was advanced to the jury and, it must be said, probably had to be advanced to the jury, the finding on one count was really a precondition to a finding on the other count, in the following sense.
19 In this case certain of the basic facts relied on in relation to each count were the same, namely the robbery and, in particular, the evidence as to who participated in it. The second count did not relate to another robbery or to another offence of dishonesty or of violence subsequently committed, which would ordinarily require entirely separate consideration, though having regard to the ordinary rules of evidence applicable to each count. This was a case where the charge of suborning perjury involved (as a matter of fact) evidence both as to the pressuring, persuading, inducing, or influencing[5] of a witness to give false testimony, and also as to the carrying out of the suborned act, namely the alleged giving of perjured evidence. More importantly, the perjured evidence was not merely indirectly connected with the charge on the first count but it was directly connected in the sense that the evidence in question amounted to a direct denial of the evidence which the witness had proposed to give (and later in fact gave) for the purpose of the Crown case so as to establish, if that were possible, proof of that case on the first count. Gamble's evidence was indeed the only "reliable" evidence on the subject in the sense that Wood's evidence of identification was in most respects too vague, so that the Crown had to persuade the jury that Gamble's evidence should be accepted beyond reasonable doubt in order to get a conviction on the first count. However, it failed to do so and the consequence was that it had failed to prove beyond reasonable doubt that the applicant had participated in the armed robbery at the bank.
20 If the jury were not satisfied of that fact, how could the jury be satisfied beyond reasonable doubt of one of the four essential elements of the second count, namely the untruthfulness of Gamble's evidence on this very issue? In the circumstances of this case, as correctly directed by the judge, it was necessary for them to find that Gamble had in fact given false evidence on this issue, that of the applicant's participation, if he were to be convicted. If they were not satisfied on Gamble's evidence or indeed on the evidence, taken as a whole, on the first count, the jury could not have been satisfied beyond reasonable doubt of the falsity of Gamble's evidence and thus of the applicant's suborning of that evidence for the
purposes of the second count.[6] In short the two verdicts simply cannot stand.
21 Some may say that this is a regrettable outcome. Indeed any verdict of a jury which is set aside is a regrettable outcome in the sense that it denies the decision of what has been described as the constitutional body prescribed by law for the determining of the issue of guilt in a criminal trial. But if the verdict is erroneous, because the jury must have misunderstood the judge's charge or because the verdict has some other defect such as true inconsistency, then in law and in justice it cannot stand. There has thereby been a miscarriage of justice, whatever others may think of the verdict on the first count. I would suggest that in essence the jury "took their eyes off the ball". They were sensible and cautious enough to treat the evidence on the armed robbery count as sufficiently unreliable to create in their minds the reasonable doubt which led to a verdict of not guilty on that count. They seemingly forgot, perhaps because they accepted the evidence of both witnesses as to what occurred in the prison van, that they had to be equally satisfied of the untruthfulness of the relevant evidence of Gamble when he had earlier denied the presence of the applicant. They forgot about that, or seemingly so. If they had a doubt about the participation of the applicant in the robbery, then they must have had, if they were performing their functions properly, a similar doubt as to the third element in the count of suborning perjury.
22 Those are the reasons why the application had to be granted, the appeal allowed, the verdict set aside and a verdict of not guilty substituted. There was no suggestion, nor could there have been a suggestion, that there should be a direction for a new trial.