R v Waters [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

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: Appeal against conviction dismissed.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 – whether the appellant suffered a miscarriage of justice because the trial judge did not give a Shepherd direction / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where it was proposed at trial that the jury required an extended unanimity direction stating that they needed to be unanimous about what information was given by the appellant to the commercial agent in relation to any count upon which they returned a guilty verdict – where the trial judge rejected the need for the extended unanimity direction – whether the jury ought to have been given an extended unanimity direction / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced to three years imprisonment, suspended after serving six months – where the applicant contends the trial judge erred in failing to make factual findings more favourable to the applicant – whether the trial judge erred in failing to make these factual findings / Criminal Code (Qld), s 92A(1)(a) / Dansie v The Queen (2022) 274 CLR 651; (2022) 403 ALR 221; [2022] HCA 25, cited / Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; [1984] HCA 48, cited / Hayes v The Queen (1973) 47 ALJR 603, cited / Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, cited / Keefe v The Queen [2014] VSCA 201, considered / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited / MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited / R v Dhillon [2011] 2 Cr. App. R. 10; [2010] EWCA Crim 1577, cited / R v Durante (1972) 56 Cr. App. R. 708; [1972] 3 All ER 962, cited / R v GAW [2015] QCA 166, cited / R v Kirkman (1987) 44 SASR 591, considered / R v McCluskey (1994) 98 Cr. App. R. 216; [1993] 5 WLUK 297, considered / R v R [2001] QCA 142, considered / R v Silcock [2022] QCA 234, considered / R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited / R v Winchester [2014] 1 Qd R 44; [2011] QCA 374, considered / Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, considered

COUNSEL: J R Hunter KC, with L M Dawson, for the appellant/applicant / M B Lehane for the respondent

SOLICITORS: Gilshenan & Luton Legal Practice for the appellant/applicant / Director of Public Prosecutions (Queensland) for the respondent

1. BOND JA: I agree with the reasons for judgment of Dalton JA and with the orders proposed by her Honour.

2. DALTON JA: The appellant was charged with 44 counts that, being a public officer, he dealt with information gained because of public office with intent to dishonestly gain a benefit for one Robert Barry Spreadborough.¹ After a jury trial he was convicted on 28 of those counts. He was sentenced to three years imprisonment, suspended after serving six months. He appeals against conviction and seeks leave to appeal against sentence. I would order that the appeal and application to appeal against sentence be dismissed.

Conviction Appeal

3. There were three grounds of appeal advanced as to the conviction: that the jury verdict was unreasonable so that the appellant was entitled to acquittal; that the guilty and not guilty verdicts were inconsistent with each other so that the convictions were unsafe, and that the judge ought to have given a Shepherd direction in relation to invoices tendered as part of the Crown case, so that there should be a retrial.

Unreasonable Verdict

4. The appellant was a police officer between February 1977 and December 2016. There was a formal admission that he was a public officer within the meaning of s 92A(1) of the Criminal Code (Qld) at all material times.

Appellant’s Reputation and Relationship with Spreadborough

5. The appellant did not give evidence at his trial. However, he called two police officers with whom he had served. Mr Wardrop was a police officer between 1988 and 1997. He met the appellant in 1990. The appellant acted as a mentor to him and was someone who Mr Wardrop considered did the right thing so far as his policing ethics were concerned – t 4-49. The appellant’s general reputation in the police force was “someone to look up to” – t 4-49.

6. The defence also called Mr Maxwell. He was a police officer from 1981 until 2018. Mr Maxwell had been awarded medals and commendations throughout his service. He had known the appellant since 2002. He thought that the appellant was well‑liked in his job and he heard other commissioned officers praise the appellant’s work.

7. Neither Mr Maxwell nor Mr Wardrop were cross-examined, so that the jury could use their evidence of the appellant’s reputation in a general way as bearing on the likelihood of what was alleged against him. The jury was appropriately directed as to this. In the scheme of the Crown case, this general evidence of reputation was unlikely to be particularly significant.

8. Mr Wardrop’s evidence was significant in another respect. He explained that until 1997 (when Wardrop retired) Mr Spreadborough was an unpaid police informant who sometimes gave information to the appellant. Mr Spreadborough worked as a process server or debt collector and therefore had access to many places where he observed breaches of the criminal law. Mr Wardrop considered that Mr Spreadborough “would take great joy in proving that yet again he’s better at [investigations] than the police and he’d found somebody and he knows that he’s wanted, or whatever” – t 4-51. Mr Spreadborough was a fairly constant source of reliable information to the police, including the appellant. This evidence was relevant to explain how, and for what length of time, Mr Spreadborough knew the appellant. It was also relevant to an important hypothesis advanced by the defence case at trial: the jury could not be satisfied beyond reasonable doubt that it was the appellant who was providing Mr Spreadborough information; the contact between the two men might have been because Mr Spreadborough was providing the appellant with information.

Complaint to the CCC

9. The first of the counts against the appellant was based on conduct which took place on 20 January 2010, and the last was on 26 April 2015. During this time Spreadborough worked as a commercial agent using a company called Ringwood Group Pty Ltd. Its business was mainly debt collecting. Between 2007 and the beginning of March 2016 Spreadborough employed Ms Postlethwaite as an administrative assistant in this business. Part of her job was to find debtors. Once a debtor was located they would either be served with process by Spreadborough, or Spreadborough would be engaged to recover the debt owing. Spreadborough and Ms Postlethwaite parted company unhappily in March 2016 when he summarily dismissed her. A matter of days later she informed the Crime and Corruption Commission (CCC) of Mr Spreadborough’s obtaining information from the appellant. That began the investigation which led to the prosecution.

10. Ms Postlethwaite gave evidence under an indemnity against prosecution which was granted very shortly before the trial. She had previously given statements to the CCC. The jury was appropriately warned in relation to her possible motivations to give evidence in accordance with those statements, and possible credit issues arising from the grant of indemnity. No point was taken about these directions on appeal.

11. Ms Postlethwaite said that she met the appellant several times. The first time she was introduced to him, but on several occasions he came to see Spreadborough. They appeared to be “best of friends” – t 3-37. On the occasions the appellant visited the business, he and Mr Spreadborough would chat, on one occasion for at least an hour with the door closed – t 3-37.

12. Ms Postlethwaite’s evidence was that when she could not find someone, then Mr Spreadborough went to the appellant – t 3-37. Spreadborough would boast that he would use the appellant to access his “work database to find the person he wanted” – t 3‑38. She heard the appellant do so, and indeed was involved in his doing so. Mr Spreadborough would ring the appellant and put his mobile phone on speaker so that Ms Postlethwaite could copy down the detailed information which the appellant would give to Mr Spreadborough. She would be sitting at her desk near Mr Spreadborough’s desk, or she would be working right next to Mr Spreadborough – t 3-38. She said the calls between the two men would be fairly brief. Mr Spreadborough would ask something like, “can you do some regos for me?” She said after that she could hear the appellant typing in the background, and he would give Spreadborough an address – t 3-39.

13. Ms Postlethwaite said this type of contact might occur weekly or fortnightly, but there could be gaps of a couple of months when there was no contact. She said that this happened “the whole time I worked there” – t 3-39.

14. Ms Postlethwaite said that if Mr Spreadborough was in a meeting, he would give her his mobile phone and say that the appellant was calling. Mr Spreadborough would instruct her to get the address from the appellant, or give the appellant a particular registration number or a name and address. She said that when she spoke to the appellant he would give her an address or registration number, telling her to write it down, and that was what Mr Spreadborough wanted – t 3-39.

CCC Investigation

16. The CCC undertook an investigation by an employed civilian investigator. The investigator executed a search warrant at Mr Spreadborough’s business and seized documents. She also forensically examined his iPhone and components of his business computer system. Subscriber checks were made to identify telephone numbers subscribed to by the appellant and by Ringwood Group Pty Ltd. Telephone records of conversations and text messages between the appellant and Spreadborough were obtained. They showed who made calls and how long they lasted.

17. A police officer is able to access a database called QPRIME for legitimate work purposes. To do so they must use an identifying number and code. The system records what information is looked at by the police officer, and records whether or not the officer adds any information to the QPRIME system; an officer is not able to delete information. Records were obtained which showed when the appellant’s identity number and code were used to access QPRIME, and what areas of information he accessed.

18. In relation to some of the counts the CCC investigator obtained records from QCAT and Magistrates Courts in which Spreadborough’s business had commenced proceedings for recovery of debts.

19. The investigator also examined records held by a particular solicitors firm who frequently used Spreadborough to locate debtors. This produced letters of engagement between that firm and Spreadborough, as well as invoices sent by Spreadborough to the firm.

20. At trial there was criticism of the CCC’s investigation, which I think was justified. The investigator did not obtain the attachments to the emailed letters of instruction. It was argued that these attachments may have favoured the appellant because they may have showed that Spreadborough was in receipt of information from his instructing solicitors so that he did not need to obtain information from the appellant, or alternatively was in receipt of information which showed that the debtor was involved in criminal activity, adding weight to the alternative hypothesis that Spreadborough was supplying information to the appellant. There was no evidence as to whether or not the missing attachments were available to the appellant in preparation for the trial.

21. The other criticism made of the investigation was that the CCC assumed the truth of what Ms Postlethwaite said, and sought evidence to prove it, rather than investigating more widely. There was no investigation, for example, as to whether there was contact between the appellant and Spreadborough in relation to persons who were not part of Spreadborough’s debt collecting work. The relevance was said to be that there may have been other communications between the appellant and Spreadborough which supported the informant hypothesis.

22. Counsel for the appellant did not contend that the faults in the CCC’s investigation were so momentous as to make a prosecution unfair and, in my view, when the body of information revealed by the investigation is examined, there was a coherent, and indeed strong, case against the appellant in relation to the counts on which he was convicted. I now turn to the evidence about those 28 counts.

Exhibit 1 Admissions

23. There were extensive admissions made at trial, most admissions were contained in a formal document, exhibit 1. It was admitted that:

“2. As part of his role as a sworn police officer, Russell Waters had access to the confidential Queensland Police Service Computer system known as QPRIME. The QPRIME system is used to store and manage a variety of information related to criminal investigations and other aspects of policing. Access to QPRIME is restricted and all authorised users have an individual identification and password to access the database. Whenever QPrime is accessed, the message ‘UN‑AUTHORISED USE OR DISCLOSURE OF QPS COMPUTER INFORMATION IS PROHIBITED’ appeared.

Russell Waters knew that unauthorised use or disclosure of Queensland Police Service information was prohibited by the Queensland Police Service.

Russell Waters received training on the use of the QPRIME system on the following dates: 21 February 2006, 20 May 2006, 30 May 2006, 8 June 2007, 21 June 2007, 1 August 2008.

Russell Waters received training on ethics and ethical decision making on 18 July 2011 and 22 November 2012. The topics covered included the requirement to not use police information in an unauthorised manner.” – ex 1.

24. Attached to exhibit 1 was a large table (Annexure A), which summarised most of what the CCC investigation revealed.

25. The first column in Annexure A showed the date of the alleged supply of information. On each date of an alleged supply the appellant was rostered to work, and Annexure A showed the times the appellant was rostered to work on each particular date.

26. Another column in Annexure A showed the times the appellant’s identity code was used to access the QPRIME database. On each day of alleged supply, the appellant’s code was used to access the database during the time he was rostered to work. Annexure A showed the search terms used in the QPRIME search. In every case the search terms included the name and/or car registration of a debtor who Spreadborough was investigating in the course of his business. Annexure A also showed the parts of the QPRIME database which were accessed on each search. These details varied across the 44 searches. Typical details included: full name, address, aliases, phone number, vehicle registration, traffic infringements, and associates. Some searches were more extensive than this, and a few were less extensive.

27. Annexure A showed the dates and times of telephone communications which the Crown said were relevant to the supply of information charged at each count. In relation to 18 of the 28 counts on which the jury returned guilty verdicts, this information showed that the appellant and Mr Spreadborough were talking to each other on the telephone at the time of the searches performed on QPRIME.² Of the remaining 10 counts on which the jury returned a guilty verdict, the details in Annexure A showed that for seven of the counts the appellant and Spreadborough were on the phone together soon after the impugned search.³ On the remaining three counts (counts 1, 2 and 3) on which the jury returned a guilty verdict, Annexure A showed that the appellant and Spreadborough spoke on the telephone for just over 16 minutes the night before the searches were conducted (7.57 pm, 19 January 2010) and for 15 seconds immediately before the searches were conducted (10.19 am on 20 January 2010). The searches were conducted at 10.26 am, 10.32 am and 10.33 am on 20 January 2010.

28. Annexure A showed that in 21 of the 28 charges upon which the jury returned a guilty verdict, Spreadborough’s business had been engaged by the solicitors firm to locate the person who was the subject of the QPRIME search.⁴ In all but one (count 28) of these 21 cases the solicitors firm had made a payment to Spreadborough’s business, by direct deposit to the business’ bank account and in doing so referenced the name of the person who was the subject of the QPRIME search.

“To carry out investigation as instructed TO LOCATE [BH] alias [E] … Conducted extensive inquires and ascertained your defendant’s real name is [BJH] and resides at [address]. He drives a vehicle with NSW rego […]. He uses several aliases of [E and H], not a nice person. The address he gave at the time of the accident of […] is that of his sister […].”

31. These bill narrations assumed importance at the trial. One line of defence was that the Crown could not prove what information (if any) was supplied by the appellant to Spreadborough. In each of the cases where there was a report of the investigation contained in the invoice, the Crown urged the jury to compare the reports on the invoices to the categories of QPRIME information accessed by the appellant. For example, in relation to count 1, the appellant’s QPRIME search recorded access to the following data:

“Full name, address, aliases, phone number, vehicle registration, traffic infringements and the personal information of his family members.”

32. In the 20 cases where there was an invoice, this comparison supported the Crown case. In relation to some counts, the jury was entitled to think that the comparison was particularly strongly supportive of the Crown case. For example, in relation to count 3 the report on the invoice read:

“To carry out investigation as instructed. We have conducted many and various inquiries and all show the defendant still residing [at address], we know he gave his address to authorities on 8/1/2010. He is due to appear at the Caloundra Magistrates Court at 0900 hours on 11/2/2010 to face a Drink Driving Charge. We have obtained a photograph of him and have emailed to you. We suggest you have agent at the court and serve him just away from the court precincts.”

33. The QPRIME record of details accessed was:

“Full name, address, phone number, vehicle registration, traffic infringements and upcoming court dates.”

34. 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

35. 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

36. 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.”

37. 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.”

38. 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.

39. There was no letter of engagement or other dealings with the firm of solicitors in relation to counts 9 and 10. Ms Postlethwaite gave no evidence about Mr Rayward, but the jury was entitled to use the coincidence in time with the call about Bunn as evidence supportive of the other evidence in the Crown case. That other evidence was contained in Annexure A. It shows that at a time when the appellant was rostered to work, and was speaking on the telephone to Mr Spreadborough he made a search in QPRIME using the search term “Andrew Rayward”. He searched the following areas of QPRIME, “Full name, address, phone numbers, Queensland transport licence details, traffic infringements, street check results, information about associates of Mr Rayward”. It was admitted that Mr Rayward was not someone who the appellant had a reason to search because of his work as a police officer, see [54] below.

40. Count 43 related to information provided concerning a Simon Kim. Annexure A showed that at a time when the appellant was rostered to work, and was speaking on the telephone to Spreadborough, he made a search in QPRIME using Mr Kim’s name as the search term, as well as an address and a registration number. The QPRIME records show that he accessed the following data: “Full name, date of birth, address, Queensland Transport licence details, passport details, vehicle registrations”. The evidence shows that it was the appellant who had rung Mr Spreadborough four minutes before the search.

41. Ms Postlethwaite gave evidence that as part of her employment she located Mr Kim and attended at his address to see whether he would make an arrangement to repay money. “But he wasn’t there. I know [Mr Spreadborough] went there once to look for him. And then said, ‘No. I’ll get [the appellant] to find him’. Which we were given an address but when [Mr Spreadborough] went back there, it was his mother.” Ms Postlethwaite clarified that it was the appellant who gave the second [mother’s] address – t 3-42.

42. Count 44 concerned information provided in relation to a Daniel Dries. Admissions in relation to Mr Dries were that on 26 April 2015, at a time when the appellant was rostered to work, someone using his identification number made a QPRIME search in relation to Mr Dries. Information accessed was, “vehicle registration information, name, address”. There had been a text (contents unknown) from the appellant to Spreadborough at 9.39 am that morning and seven minutes after the search was conducted there was a telephone call from Spreadborough to the appellant which lasted two minutes and eight seconds.

43. Ms Postlethwaite’s evidence was that Mr Dries was a bodyguard who worked for Mr Spreadborough and then left his employment. Dries engaged a friend of Spreadborough to repair a vehicle. Dries had not paid for the repairs. For that reason Mr Spreadborough was trying to locate Dries, but could not. Ms Postlethwaite said, “So [Mr Spreadborough] said, ‘I’ll ring [the appellant] and we’ll find him’. Which we did.” – tt 3-42-43. Ms Postlethwaite identified a text message she received on Sunday, 26 April 2015 at 5.14 pm. It read, “Truck reg to Daniel Dries of [address]. Reg is [registration number]”. The message was sent on the same day the impugned search was made.

Ms Postlethwaite’s Credit

44. On 14 July 2016 Ms Postlethwaite had sent a screenshot of the text message mentioned at [43] above to the CCC investigator as an attachment to an email. The email read, “Im going thru old info i have and found this from [Mr Spreadborough] (in yellow) in an old text message on and old mobile, date shown. Unsure f [Mr Spreadborough] drove arou d looming for this guy or it came from [the appellant]. I will send through whatever i get.”

45. In giving evidence-in-chief Ms Postlethwaite identified the screenshot of her phone containing the text message from Spreadborough and said, “That picture was taken by – I gave my phone to [the CCC investigator] but asked if they could strip the conversations from Robert Spreadborough off it. And I gave them the phone to do that.” – t 3-43. In cross-examination it was put to Ms Postlethwaite that in fact she found the phone and sent a screenshot to the CCC investigator. She accepted that without argument – t 3-50.

46. It was contended on appeal that Ms Postlethwaite was not a reliable witness. The point dealt with immediately above was relied upon in this respect. I cannot see that it would have been significant in any rational consideration of her reliability. Another point said to diminish Ms Postlethwaite’s reliability was that, when cross-examined about the screenshot just discussed, she said orally that she was sure that the information in the text came from the appellant. This is contrary to the view she expressed in the email sent to the CCC investigator. It was put to her (although she did not accept) that her contemporary (uncertain) recollection must have been more accurate than her recollection at trial. What the jury made of this discrepancy was a matter for them. Certainly Ms Postlethwaite’s evidence does not read as though she was dogmatic. So far as one can tell from the transcript, she gave her evidence in an entirely straightforward way.

47. A third point raised by the appellant about Ms Postlethwaite’s evidence was that in a statutory declaration she gave to the CCC, she said that she had met the appellant once, when he attended at Mr Spreadborough’s business premises. The cross‑examiner elicited that she had told the prosecutor in conference before trial that the literal words of the statutory declaration were not correct because she had met the appellant several times, although she had been introduced to him once. Under cross‑examination Ms Postlethwaite gave her opinion that in fact the statutory declaration could be regarded as correct if a comma were inserted into the particular sentence – t 4-8. Again, this seems a relatively insignificant point.

48. Cross-examination of Ms Postlethwaite included a passage in which she agreed that she regarded Mr Spreadborough as a nasty man and that she had made a complaint to the CCC 10 days after she had been summarily dismissed from his employment. It was not specifically put to her that any parts of her complaint or her evidence were false because she had vengeful motives against Mr Spreadborough. So far as it is possible to tell from the transcript, Ms Postlethwaite answered these questions directly and in a straightforward manner. The fact that she had engaged in behaviour which might itself be criminal, and had not received an indemnity against prosecution until a week before trial might have been considered by the jury as supportive of her credit, at least in relation to this point.

The Informant Hypothesis

53. Both at trial and on appeal this hypothesis consistent with innocence was described as being central to the appellant’s case. There were powerful reasons why the hypothesis postulated by the defence may not have caused the jury to have a reasonable doubt about the appellant’s guilt in relation to any of the counts.

54. So far as the formal admissions were concerned, it was an admitted fact that:

“Audits undertaken by the Queensland Police Service in respect to the QPRIME searches referred to in Annexure A were unable to identify any reason related to Russell Waters’ employment as a police officer for these searches.”

55. It was further admitted that:

“1. Police officers accessing the Queensland Police Service system known as QPRIME cannot alter or delete the information stored in the system. They are able to add to that information.

An audit was conducted of the QPRIME searches referred in Annexure A to the admissions for the period 1 January 2010 to 03 November 2015.

The audit revealed that Russell Waters:

a. did not add to the information accessed by him; and

b. did not conduct any searches of the person searched other [than] the date in the column ‘Date of QPRIME access.’”

56. These admissions alone provided a formidable obstacle to the defence hypothesis.

57. That all the persons searched had a business or personal connection to Spreadborough added to the defence difficulties.

58. The evidence that Spreadborough had been a police informant in the past was dated. Contrary to the oral submissions made on appeal, the evidence from Mr Maxwell was that the appellant sometimes gave him useful information. Mr Maxwell did not refer to Mr Spreadborough. It was Mr Wardrop who gave evidence that Spreadborough worked as an informant. He did not give precise dates, but Wardrop resigned from the police force in 1997. That is, at best for the defence, the evidence was that Spreadborough had been an informant some 13 years before the earliest of the counts before the jury.

59. It was argued that in relation to a number of counts there was no telephone communication between the appellant and Spreadborough during or after the QPRIME search; that in some cases an invoice was submitted to the firm of solicitors before the QPRIME search, and in other cases Spreadborough had already located the debtor at the time of the QPRIME search. It was said that these instances supported the idea that Spreadborough was supplying information to the appellant, rather than the other way around.

60. There were seven counts where there was no telephone communication during or after the QPRIME search. In respect of four of these the jury verdict was not guilty. These counts are discussed in some detail below under the headings Count 38 and Counts 1, 2, 3, 4, 23 and 24.

61. In one case, count 18 (discussed in detail below), an invoice was dated before the QPRIME search. The jury returned a not guilty verdict. Lastly, it was only in the case of counts 26, 32, 36 and 42 where Spreadborough had located the defendant at the time of the QPRIME search. On those four counts the jury returned a verdict of not guilty.

62. It was up to the jury whether or not they thought that these relatively few cases supported the possibility of Spreadborough informing in relation to communications the subject of those counts. There was certainly nothing so compelling about the evidence that the jury was obliged to draw such an inference.

63. 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

64. 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.

Inconsistent Verdicts

65. 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.

66. 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

67. In the present case, the jury was properly directed to consider each of the counts separately and decide whether it was satisfied of guilt beyond reasonable doubt on the evidence relevant to that count. This Court should assume that the jury followed that direction. The evidence on each count was similar, but different in every case.

68. It is not possible to identify one or more factors common to every one of the 16 counts in relation to which the jury returned a verdict of not guilty. However, it is possible to understand that a jury might have had a reasonable doubt in relation to those 16 individual counts. In my view 14 of the 16 verdicts of acquittal can be easily reconciled with the other verdicts in the case when the evidence in support of them is examined. There were four acquittals where the Crown did not prove communication between the appellant and Spreadborough after the impugned QPRIME search. The appellant contended that these verdicts were irreconcilable with convictions on counts 1, 2 and 3 where there was also no proof of communication after the QPRIME search. I deal with this group of verdicts together below.

69. Counts 17 and 18 concerned searches allegedly undertaken on the same day (30 August 2010), the first at 11.00 am, and the second at 11.04 am. In both there were admissions that there were letters of instruction from the firm of solicitors; invoices from Spreadborough to those solicitors, and payments from the solicitors to Spreadborough’s bank account. As well, Spreadborough and the appellant were on the phone together for 11 minutes from 10.59 am that morning; that is, they were on the phone together at the time the searches were being conducted. In all those respects one might have thought that the evidence supporting these counts was strong, and was similar to other counts where the jury returned guilty verdicts.

70. However, the paperwork in relation to count 18 was not entirely satisfactory. The firm of solicitors sent a letter of engagement dated 25 August 2010. It requested the services of Mr Spreadborough to locate Chad Clifton Purcell. The Crown relied on the search of 30 August 2010. Yet the invoice from Spreadborough to the firm of solicitors was dated 25 August 2010, the same date as the letter of engagement. As the trial judge said in his summing-up, “count 18 appears to be unique in respect to the search regarding that matter occurring five days after the invoice.” – t 1-24.

71. As well, the report which formed part of the invoice showed that there appeared to have been enquiries made by Mr Spreadborough other than contact with the appellant. It read:

“REF NO : 14966 To carry out investigation as instructed TO LOCATE MR CHAD PURCELL. Conducted several discrete inquiries and all came back with address of … Palm Beach. We then decided to phone mobile number as given and spoke to Chad Purcell who confirmed he resides at address. We questioned him about insurance claim and possible accident. He denied being involved in any accident and stated he owns a Toyota Landcruiser which has never been in an accident. Further checks conducted reveal Purcell being in an accident as described at Currumbin. The reg no … is registered to a [K] of … Townsville and has been in [their] name for quite some time, Reg No … is registered to Chad Purcell of the above address.”

72. The Crown was in some difficulty with this count. The prosecutor originally opened that the date on the invoice must be regarded as an error – t 1-17. However, by the time of addresses, the prosecutor told the jury that the Crown “stands by its admission that the 25th of August 2010 is the correct date on the invoice” – t 1-5. In his address the prosecutor asked the jury, “So what reason then some five days down the track would … Mr Spreadborough being contacted the accused and the search being undertaken? Well, there is – one reason could be to pass on further information to the solicitors firm in relation to the matter, sort of a freebie, as it is, a sign of goodwill …” – t 1-5. He continued, “So that’s one possible reason. But let’s face it, if the date is accurate, then it’s the weakest count in the Crown case …”.

73. In submissions to the jury, defence counsel made the obvious point that the appellant had billed in relation to Mr Purcell’s matter by the time of the impugned QPRIME search. He also pointed out that the invoice number for count 16 (19 August 2010) was 12413; for count 17 (30 August 2010) was 12417, and for count 18 was 12415.

74. In these circumstances it seems to me that the jury might well have had a reasonable doubt about count 18, based on these discrepancies in the evidence which were not present in relation to any other count.

75. If count 18 had not been preferred, there would have been no anomaly in the evidence as to count 17. However, the Crown case was that the impugned searches in counts 17 and 18 took place within four minutes of each other, and both during the same phone call between the appellant and Mr Spreadborough. In addresses the prosecutor, defence counsel, and the trial judge in summing-up (tt 1-23-24) all dealt with counts 17 and 18 together. If the jury had a reasonable doubt that there was a supply in relation to count 18, they may have extended the benefit of that doubt to the supply in relation to count 17. That might have been a slightly “merciful view of the facts”,⁸ but where there was confusion in the factual evidence as to count 18, I do not think it can be said that the verdict on count 17 is illogical or betrays compromise or confusion in the minds of the jury.

76. Count 20 involved a search conducted on 21 September 2010 at 11.02 am. It is evident from the phone records that the appellant rang Spreadborough before the search was begun, and that the phone call lasted for seven minutes and 26 seconds. The debtor was one referred to Spreadborough by the firm of solicitors and there is a letter of engagement, invoice and proof of payment.

77. However, the report given to the solicitors in the body of the invoice narration is not consistent with the information accessed on QPRIME. The debtor’s address was not accessed on QPRIME, yet it is provided to the solicitors in an invoice produced on the same day as the search, and four days after the letter of engagement. Further, the debtor’s phone number is provided, although that information is not accessed on QPRIME. The detail is added that the debtor is “not a nice person and has a violent history”, although no information as to criminal offences, associates, court appearances or criminal investigations are accessed on QPRIME. The details accessed on QPRIME were the debtor’s vehicle registrations, full name, date of birth, photographs and traffic infringements. No information about any of those topics is provided in the report given as part of the invoice (save that the invoice does contain the debtor’s full name, yet so does the letter of engagement).

“In respect of Count 42 of the indictment:

a. On 16 October 2012 Ringwood (Group) Pty Ltd commenced legal proceedings in the Beaudesert Magistrates Court against Brisbane Independent Newspaper Group Pty Ltd on behalf of their client Beaudesert Times Pty Ltd in relation to $49614.40.

b. From 7 December 2012 Donald Gordon-Brown communicated by email with Ringwood Group Pty Ltd on behalf of its client, coming to an agreement on or before 4 June 2013 to pay part of the debt by instalments.”

108. Defence counsel’s submission to the jury in respect of this count was that there was no need for Spreadborough to obtain any information from the appellant in relation to Mr Gordon‑Brown. By the time of the search, legal proceedings had already been commenced and Mr Gordon‑Brown was communicating with Mr Spreadborough’s company. On this basis the jury was entitled to have a reasonable doubt as to whether or not there was a supply of information or any intent to dishonestly benefit Spreadborough.

Seven Counts where No Post-search Communication

109. Counts 1, 2, 3, 4, 23, 24 and 38 are the only other counts where there was no communication proved by the Crown between the appellant and Spreadborough during or after the impugned QPRIME search.

110. Count 38 has just been discussed. There are quite compelling reasons peculiar only to that count why the jury might have returned a not guilty verdict. They have nothing to do with whether or not there was communication proved by the Crown after the QPRIME search.

111. Count 4 was the subject of a not guilty verdict and is remarkable because it belonged to a set of four counts (1, 2, 3, 4). The verdicts on the other three counts were guilty. All four counts related to searches which were undertaken on 20 January 2010 at a time when the appellant was rostered to work. The searches took place within minutes of each other (10.26 am, 10.32 am, 10.33 am and 10.35 am). There was a telephone call from the appellant to Spreadborough the day before the searches, and another one a few minutes before the searches. The telephone call the night before the searches lasted for 16 minutes; the telephone call immediately before the searches lasted only 15 seconds.

112. In each case the debtor enquired about was one who the firm of solicitors had asked Spreadborough to find. In each case there was an invoice sent by Spreadborough to the firm of solicitors. However, in relation to counts 1, 2 and 3 there were invoices dated 20 January 2010, ie., the same day as the QPRIME search. The narrative on these three invoices specifically referred to investigations carried out on 20 January 2010, ie., the date of the QPRIME search. There was no such invoice in relation to count 4. To the contrary, there was an invoice dated 26 November 2009, ie., before the search. The narrative on that invoice was to the effect that Spreadborough had been unable to find the debtor the subject of count 4.

113. Furthermore, there was a letter to Spreadborough from the firm of solicitors dated 9 February 2010 (ie., after the QPRIME search), which sought an update on Spreadborough’s efforts to find the debtor. A reply was sent the same day with Spreadborough’s handwriting on a copy of the letter saying, “Unsuccessful in locating”.

114. In relation to counts 1, 2 and 3 there was a record that Spreadborough was paid for his work, but in the case of count 4 there was no evidence of payment.

115. It was open to the jury to have a reasonable doubt about whether information was supplied to Spreadborough as alleged at count 4. It was also open to the jury to have a reasonable doubt about whether any information which was supplied, was supplied with intent to dishonestly benefit Spreadborough.

116. A comparison of the verdicts on counts 1, 2, 3 and 4 shows that the jury was careful in distinguishing count 4 from the other three counts and that, in circumstances where it may be assumed that they paid particular attention to counts 1, 2 and 3, the fact that there was no telephone communication proved by the Crown after the QPRIME search in relation to counts 1, 2 and 3 was not an impediment to their finding the appellant guilty on those counts. The Crown case was that the information could have been communicated in some other way, such as a meeting between the two men. The evidence in relation to count 3 was particularly strong – see paragraphs [32] and [33] above.

“An appellant who seeks to obtain the quashing of a conviction on the ground that the verdict against him was inconsistent with his acquittal on another count has a burden cast upon him to show not merely that the verdicts on the two counts were inconsistent, but that they were so inconsistent as to call for interference by an appellate court. The court will interfere if it is satisfied that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion which was reached.”¹¹

121. Archbold categorises inconsistent verdicts as a variety of unsafe and unsatisfactory verdicts. This is consistent with the view of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (below) p 365, and the view of Brennan CJ in Jones v The Queen, “Sometimes an inconsistency in verdicts … may show a verdict to be unsafe and unsatisfactory. But these are relatively rare cases.” – p 443. The other judges in Jones v The Queen dealt with a case of inconsistent verdicts as convictions which were unsafe and unsatisfactory in terms of the law in M v The Queen.¹²

122. In R v R¹³ McPherson JA considered that Jones v The Queen was the leading authority on inconsistency of verdicts, but expressed the view that, notwithstanding the appeal ground should be regarded as part of the law as to unsafe and unsatisfactory verdicts, establishing an inconsistency in verdicts did not necessarily entitle the accused to a verdict of acquittal. He thought that if there was admissible evidence given at the trial which was sufficiently cogent to justify a conviction,¹⁴ then an appellate court might legitimately quash a conviction which appeared inconsistent in the relevant sense, and order a retrial. That distinction between cases in which the verdict is unsafe and unsatisfactory because verdicts are inconsistent, and cases which are considered to be unsafe and unsatisfactory because of an unreasonable verdict (one which no properly instructed jury could deliver, R v M (above)) is sensible having regard to the substantive reason for quashing the guilty verdict in each case.

123. Returning to the circumstances in which an appellate court will interfere when verdicts appear inconsistent, the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie discussed the jurisprudential conflict between the inscrutability of a jury verdict, and the difficulty with verdicts which are so inconsistent that it is not in the interests of justice that the court’s record show two verdicts which cannot stand together – pp 365-366. This joint judgment referred to the fact that the jury is the “constitutional tribunal for resolving disputed factual questions” and that juries, by their very nature, did not give reasons. These matters made courts very reluctant “to undermine jury verdicts or to infer from them that the jurors … have done otherwise than their duty as committed to them by law”. – p 365.

124. The joint judgment distinguished cases of legal inconsistency (guilty of stealing and receiving; guilty of murder and attempted murder) from cases where it was argued that a factual inconsistency arose. The present case falls into the second category and is governed by the test stated in Archbold above. The court in discussed various factors which would make an appellate court reluctant to find that verdicts were “so inconsistent” – p 369 – as to render the resulting convictions unsafe or unsatisfactory. The court held that, “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.’” – p 368.

“[J]uries 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.”

130. Gaudron, Gummow and Kirby JJ cited this passage in MacKenzie and followed it with the comment, “We agree with these practical and sensible remarks”. – p 368. The dicta was also relied upon by Muir JA in R v Winchester.¹⁹

131. The next two sentences of the South Australian judgment were omitted from the quotation in the High Court, and in Winchester, but I will reproduce them as they are, in my view, apt to the situation here:

“A jury may be quite reasonable in arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count in the information.”²⁰

132. As to the facts of MacKenzie itself, Gaudron, Gummow and Kirby JJ said:

“We accept the comment that, at first sight, the differentiation between the jury’s verdicts appears a little difficult to understand. They were not technically inconsistent. But there is an element of factual inconsistency, at least in the way in which this particular trial was conducted. Nevertheless, we are not convinced that the verdicts are so repugnant and irreconcilable that they invite, or require, intervention.” – p 369.

133. There are numerous other such cases to be found in the reports where a Court of Appeal has not interfered. R v McCluskey²¹ is one. There, a jury convicted of manslaughter but acquitted of affray arising out of the same incident. The Court of Appeal wondered whether the jury:

“… could justifiably have felt that they had then [in convicting of manslaughter] reached the only important decision in this case and that all that followed, namely count 2 affray, was academic – as in reality it was. … We regard the acquittal on the relatively minor charge for affray as reflecting no more than that. Certainly that acquittal goes no way to persuading us that this jury misunderstood the main issue on the murder charge. To make such a finding on so slight a basis would be an insult to the jury.”

134. The underlined part of that passage reflects my thinking in this case.

135. In short, I am not convinced that the conviction on counts 1, 2 and 3 (or indeed the other 25 counts on which the jury returned a guilty verdict) are unsafe. In my view, there was a strong Crown case on each of the 28 counts on which the jury convicted. I can see that the jury has been careful to give the appellant the benefit of the doubt in relation to 16 counts. Of that 16, in 14 counts a line of legitimate reasoning is obvious to me as one which might have appealed to the jury. The fact that I do not identify such a line of reasoning in relation to two of 44 counts does not satisfy me that any of the convictions were unsafe.

136. I will make one further comment, for it does appear in some of the cases that while it is a well-established appellate court technique to attempt to reconcile apparently inconsistent jury verdicts, the court must be careful not to speculate in too much detail as to what the jury might or might not have made of the evidence. I agree with the comments of Sifris AJA in Keefe v The Queen; Simpson v The Queen:²²

“The Court should not, as it were, engage in a microscopic, comprehensive and retrospective analysis and dissection of the evidence particularly in cases of this kind where there is substantial evidence of a circumstantial nature. Detail, demeanour and nuances are at play that may escape a clinical analysis of the similarities and distinctions that emerge from the substantial evidence. In this regard all of the other matters referred to, perhaps not individually, but collectively feed into the analysis and confirm that it was indeed open to the jury to consider that there was a rational and logical basis to their decision.”

137. The English Court of Appeal made similar comments in R v Dhillon.²³

The Absence of a Shepherd Direction

138. The third ground of appeal against conviction was that the appellant suffered a miscarriage of justice because the trial judge did not give a Shepherd direction.²⁴

139. Shepherd v The Queen was a case which dealt with the standard of satisfaction which a jury must reach in a circumstantial case. McHugh J stated the general position as follows:

“If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt – not whether any particular fact has been proved beyond reasonable doubt. … Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances – often numerous – which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.” – pp 592‑593.

140. The majority judgment in Shepherd was given by Dawson J. Of circumstantial cases he said:

“However, in most, if not all, cases, [the] ultimate inference [of guilt] must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference.” – p 579.

141. Dawson J discussed that in some cases, intermediate facts might “constitute indispensable links in a chain of reasoning towards an inference of guilt” – p 579. Of course, as he remarked, “Not every possible intermediate conclusion of fact will be of that character”.

142. Dawson J expressed the view that if there was an intermediate fact which was indispensable to a chain of reasoning towards guilt, “it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn.” – p 579. However, he did not think it necessary in every case to do so. He remarked, “It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence” – p 579.

143. In the present case, trial counsel for the appellant asked for a Shepherd direction. The proposed direction was put in writing and identified as “J” at trial. It read:

“For many of the counts involving letters of instruction from James Watt & Co, the prosecution has tendered an invoice from Ringwood Group (Pty Ltd) which are contained in Annexure B to Exhibit 1. Three of the counts in this category do not have an invoice. – Counts 26, 30 and 37.

In respect of those counts relating to James Watt & Co where there are invoices, the prosecution relies upon the contents of the invoice and what it submits are consistencies between the dates and the contents of the invoice and the categories of information in the ‘Information accessed’ column in Annexure A to the admissions (Exhibit 1). The prosecution submits that it can be inferred from the both the date of the invoice and the consistencies in the content of the invoices with the categories of ‘Information accessed’ that information within those categories was supplied on the date in the particular count.

[The CCC investigator] gave evidence that the focus of the investigation was focused on the allegations by Ms Postlethwaite that ‘when they weren’t able to locate a particular person that’s when they would go to Sergeant Waters and so the focus was with that person’s name, did Sergeant Waters search that person and was there phone calls on either side or near the search relevant’. (… 2-29 lines 15 to 24, 2-31 lines 10 to 16)

That part of the prosecution case relies upon proof of the facts that:

a) The work or searches referred to in the invoice was not carried out before the relevant telephone communication; and

b) The invoice was not generated before the relevant telephone communication.

Proof of these facts are an indispensable link the chain of reasoning in the prosecution case.

Accordingly, I direct you that that the inferences sought to be proved by the prosecution ((a) and (b) above) must be proved beyond a reasonable doubt. …”

144. The trial judge refused to give a Shepherd direction – t 5-18. He acknowledged that part of the prosecution case was that “one of the circumstances which would lead to the jury concluding that information accessed by the defendant was supplied to … Spreadborough was the correspondence between categories of information accessed by the defendant [on QPRIME] and the information detailed in the invoices”. However, he recognised that the prosecution case was wider than that. He said, referring to an analogy from Shepherd’s case, “Those circumstances are other threads in the rope rather than a link in the chain of the prosecution’s circumstantial case”.

145. In my view, that approach of the trial judge was correct. The rendering of an invoice on the day of, or soon after, an impugned QPRIME search was a circumstance which supported the Crown case on a number of counts. So did a comparison between the information supplied as part of the narration on the invoice, and those parts of QPRIME which were accessed. However, inferences drawn from that evidence were not indispensable to the Crown case.²⁵ There were other elements, such as the coincidence in timing between the making of the searches and the telephone contact between the appellant and Spreadborough; the fact that the appellant had been engaged by the solicitors firm to obtain information about the persons who were the subject of the QPRIME searches and Ms Postlethwaite’s evidence as to the general practice of Spreadborough when confronted with the need to locate debtors who were hard to find, and in a few cases, as to what Spreadborough said or did.

146. The jury was properly instructed that the Crown case was largely circumstantial and given proper directions as to the high state of satisfaction they needed to reach in respect of guilty verdicts on such evidence.

Extended Unanimity Direction Not Given

147. Although it was not a specific ground of appeal, it was advanced in the written outline of argument on behalf of the appellant that the jury ought to have been instructed that they need to be unanimous about what information was given by the appellant to Spreadborough in relation to any count upon which they returned a guilty verdict. This was the basis of a no case to answer submission at trial.

148. The trial judge rejected the need for such a direction below and, in my opinion, was right to do so. In each case the Crown frankly admitted it could not prove the exact information supplied, but said the jury would be satisfied beyond reasonable doubt that some information had been. The Crown had particularised the information supplied as follows: “The information Russell Waters supplied Robert Spreadborough included any or all of the details in the table below”. Then in the table which followed, against the count number was the detail from the QPRIME audit which showed what areas of information were accessed on QPRIME. For example, in the case of count 1, “Full name, address, aliases, phone number, vehicle registration, traffic infringements and the personal information of his family members”. All that information was contained on QPRIME. None of it could have been supplied by the appellant to Spreadborough legally. In my view, the trial judge was correct. There was no necessity for an extended unanimity direction.

Sentence

149. The application for leave was on the basis that the applicant wished to advance the following ground of appeal as to the sentence:

“The sentence was manifestly excessive, and the learned sentencing judge erred in finding for the purpose of sentence that:

the information supplied by the applicant included confidential information [that] was probably only in the possession of the Queensland Police Service (QPS); and

the offending did not occur in the context of a longstanding relationship between a police officer and an informant.”

150. In oral submissions counsel for the applicant clarified that the proposed appeal ground was that, although the sentence was appropriate given the factual findings which the learned sentencing judge made, had he made different factual findings, more favourable to the applicant, the sentence would have been too high. The nub of the proposed appeal therefore is not manifest excess, but error in failing to make factual findings.

151. In deciding the factual basis upon which he would sentence, the judge below was obliged to act on the balance of probabilities, no doubt with a proper sense of the seriousness of the task he was undertaking.²⁶

152. As to the first factual finding which is challenged, the primary judge said:

“The type of information that you accessed and supplied to Mr Spreadborough was not on all occasions limited to a current address or confirmation or correction of a name. It is contended on your behalf that I should not conclude so because the Crown case was conducted on the basis, as I ruled, that the jury need not be satisfied as to any particular category of information that was provided nor the extent of it. That was certainly the basis of the ruling I made against the no-case submission made on your behalf. But the Crown did not concede, for the purpose of that argument, that it would not be possible for the Crown to satisfy a jury as to particular categories of information that were provided but merely that that was not required as a matter of law. Some of the categories of information accessed by you and the contents of the invoice conveying information from Spreadborough to the solicitor client lead me to safely conclude that, on occasions, the information you provided Spreadborough went beyond merely names and addresses of the persons the subject of the search but included other confidential information probably only in the possession of the Queensland Police Service and, on occasions, included personal details regarding other persons such as the family members or associates of the person the subject of the search.” – sentencing remarks t 1-3.

153. In my view, there was nothing incorrect about the sentencing judge’s finding in this regard. It is plain when the areas of QPRIME information accessed, and the contents of some bill narrations are compared, information as to family members, associates and propensities were searched on QPRIME and information of that type was provided to Spreadborough. Two cases serve to make the point. In relation to count 3, areas of QPRIME searched included, “traffic infringements and upcoming court dates”. The information provided in the invoice included when the debtor was attending the Caloundra Magistrates Court for a traffic infringement, with a suggestion that the solicitors attend to serve him just outside the court precincts that day. The second example is probably the most affronting of all of them. In respect of count 22, the areas of QPRIME searched included “DNA profile” and information provided in the bill narration the same day included information about the debtor’s race and about his relations. There is nothing in this ground of appeal.

154. As to the second factual basis for sentencing which is challenged, the primary judge said:

“It is submitted on your behalf that your criminality is less than otherwise would be the case because the supply of information to you occurred in the context of a police officer and confidential informant relationship with Robert Spreadborough, and, so it is submitted, the acquittals are consistent with Mr Spreadborough providing you information, including on occasions before and during you searching QPRIME, and you not supplying information to Mr Spreadborough on those occasions. It is submitted that I would, therefore, conclude that the offences of which you were convicted occurred in the context of a longstanding police officer-informant relationship and that the provision of information to Mr Spreadborough was not purely for his interests but must have involved a benefit for the Queensland Police Service, albeit on a misguided or misconceived basis.

I do not accept that submission. The acquittals by the jury on 16 counts on the indictment are consistent with a careful consideration by the jury of the evidence relevant to each count and a determination on their part that the evidence was not such as to base a finding beyond reasonable doubt that information was, in fact, supplied by you on that particular occasion and/or was not intended to benefit Mr Spreadborough. The jury were directed that their verdicts need not be the same, that the evidence was different in relation to each count and that they needed to be satisfied as to the proof of each particularised count. It seems to me that the jury took a careful and cautious approach and, rather than finding any gaps in the evidence filled by similar fact evidence and propensity reasoning, determined each count based upon the particular evidence relevant to it, including factors such as whether there was proof of a phone call between yourself and Mr Spreadborough following the instance of QPRIME access and what information might have otherwise been available to or obtained by Mr Spreadborough and communicated to his solicitor client and not be sourced from yourself.

I do not accept a submission made on your behalf that the acquittals should be regarded as a finding by the jury with respect to those counts that the Crown had not negatived the alternative hypothesis that it was Spreadborough providing you with information rather than you providing Spreadborough with information on those occasions. In my view, the alternative hypothesis posited is a risible one and would have been so regarded by the jury. The evidential basis of instances where Mr Spreadborough had provided police officers, including yourself, with information in decades preceding the period of the counts on the indictment is simply insufficient to lead a jury to a doubt as to whether, in fact, that hypothesis was true, particularly in light of the admitted fact that on no occasion with respect to any of the searches the subject of the counts on the indictment did you input any information regarding such persons into the QPRIME system.

In those circumstances, I do not accept the submission on your behalf that the offending occurred in the context of a longstanding police officer-informant relationship or that the provision of information by yourself to Mr Spreadborough involved a benefit for the Queensland Police Service nor that the objective criminality of the offences for which you were convicted is lessened because of such a police officer‑informant relationship.”

155. The reasons why the informant hypothesis was weak are dealt with above. The judge was by no means obliged to accept it. Furthermore, as the analysis of the not guilty verdicts shows, there was no pattern which was consistent with the jury having accepted that hypothesis. This submission must also fail.

156. In my view, there is nothing in the proposed challenge to the sentence.

157. COOPER J: I agree with Dalton JA.

Footnotes

1. S 92A(1) of the Criminal Code 1899 (Qld), “A public officer who, with intent to dishonestly gain a benefit for … another person … (a) deals with information gained because of office … is guilty of a crime.” ↩

2. These are counts 5, 6, 7, 9, 10, 11, 12, 13, 14, 19, 21, 22, 27, 28, 33, 34, 35 and 43. ↩

3. Count 8, four minutes after the search; count 15, 14 minutes after the search; count 16, three minutes after the search; count 25, 10 minutes after the search; count 31, eight minutes after the search; count 41, about one hour after the search, and count 44, seven minutes after the search. ↩

4. The 21 matters were the subject of counts 1, 2, 3, 5, 6, 7, 8, 11, 12, 13, 14, 19, 21, 22, 25, 27, 28, 31, 33, 34 and 35. ↩

5. In respect of count 34, although there was a letter of engagement from the firm of solicitors and a payment from them, there was no invoice. ↩

6. M v The Queen (1994) 181 CLR 487; Dansie v The Queen (2022) 403 ALR 221. ↩

7. [2022] QCA 234, [73]. ↩

8. See the extract from Silcock above. ↩

9. Silcock, above. ↩

10. Criminal Pleading, Evidence & Practice 2016, Sweet & Maxwell, 7-70. ↩

11. The first case cited as authority for this proposition is (1972) 56 Cr App R 708, which is usually cited, together with 13 December 1954, per Devlin J, as the origin of the rule in English law, see for example (1996) 190 CLR 348, 366.