HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJSAMUEL JAMES APPELLANT
AND
THE QUEEN RESPONDENT
James v The Queen
[2014] HCA 6
5 March 2014
M102/2013
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Victoria
Representation
T Kassimatis with B J Franjic for the appellant (instructed by Valos Black & Associates)
P B Kidd SC with B L Sonnet for the respondent (instructed by Solicitor for Public Prosecutions (Vic))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
James v The Queen
Criminal law – Appeal – Appeal against conviction – Intentionally causing serious injury – Whether failure to instruct jury as to lesser alternative verdicts occasioned substantial miscarriage of justice.
Criminal law – Role of trial judge – Whether duty to secure fair trial required instruction on any lesser alternative verdicts regardless of forensic choices of counsel.
Crimes Act 1958 (Vic), ss 16, 17.
Criminal Procedure Act 2009 (Vic), s 239.
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ. The appellant was convicted following a trial in the Supreme Court of Victoria (Williams J) of intentionally causing serious injury to a man named Khadr Sleiman[1]. A second count, an alternative to the first, charged the appellant with recklessly causing serious injury to Mr Sleiman[2]. Mr Sleiman suffered multiple injuries as the result of being struck by a motor vehicle that at the time was being driven by the appellant. It was the prosecution case that the appellant deliberately struck Mr Sleiman with the vehicle intending thereby to cause him serious injury. It was the defence case that Mr Sleiman was struck accidentally while the appellant manoeuvred his vehicle in reverse in an endeavour to get away from Mr Sleiman, who was menacing him with a knife.
[1]Crimes Act 1958 (Vic), s 16.
[2]Crimes Act 1958 (Vic), s 17.
During the course of its retirement the jury sought clarification of the distinction between an intention to cause serious injury, the mental element of the offence charged in the first count, and awareness that his acts would probably cause serious injury, the mental element of the offence charged in the second count. In the course of a discussion about how to answer the jury's question the prosecutor raised, for the first time, the question of whether the jury should be instructed of the availability of a further alternative verdict: that the appellant intentionally caused injury, as opposed to serious injury, to Mr Sleiman[3]. The trial judge responded that the prosecution case had not been put on this basis. Her Honour expressed the view that to leave a further alternative verdict at this stage of the trial would deprive the appellant of the possibility of acquittal[4]. By his silence, the appellant's counsel is to be taken to have agreed with that assessment.
[3]Crimes Act 1958 (Vic), s 18.
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- AGLC
- James v The Queen [2014] HCA 6
- Case
- [2014] HCA 6
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge's duty to ensure a fair trial extended to instructing the jury on any lesser alternative verdicts, irrespective of counsel's tactical decisions, and whether the failure to do so in this instance constituted a substantial miscarriage of justice. The court considered the principles established in cases such as *Gilbert*, *Gillard*, and *Pemble*, which address the obligation to leave manslaughter as an alternative verdict in murder trials, and examined whether these principles should be extended to all offences and all alternative verdicts.
The court reasoned that while the duty to ensure a fair trial may, in some circumstances, require the judge to leave an alternative verdict even if not relied upon by the defence, this does not establish a universal rule that every viable alternative verdict must be left to the jury in every case. The court distinguished the specific obligation concerning manslaughter in murder trials from a broader obligation to leave all included offences. It noted that the decision in *R v Coutts*, which proposed leaving any "obvious" alternative verdict regardless of counsel's wishes, was concerned with the public interest in the administration of justice and the prevention of both excessive convictions and the failure to punish lawbreakers. However, the court found that the principles in *Gilbert* and *Gillard* were confined to the specific context of manslaughter in murder trials and did not establish a wider rule applicable to all alternative verdicts.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by:
Gilbert and Gillard are concerned with the consequences of the wrongful neglect of the obligation to leave manslaughter to the jury in any circumstance in which it is open. History and recognition of the gravity of conviction for murder inform the obligation. Gilbert and Gillard do not state any wider principle respecting the obligation to leave alternative verdicts for included offences (including alternative verdicts for offences other than manslaughter on an indictment of murder[38]) or the consequences of the failure to do so. [38]Those alternative verdicts are provided for by s 421(1) of the Crimes Act 1958 (Vic). The rationale of the proposed rule In the appellant's submission, the contention that the principles in Gilbert and Gillard should be extended to the trial of all offences arises from the trial judge's obligation to ensure the fair trial of the accused. That obligation was explained by Barwick CJ in a frequently cited passage in Pemble v The Queen[39]:"Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part."[39](1971) 124 CLR 107 at 117-118. Pemble was concerned with the trial of an indictment of murder. Consistently with the submissions of defence counsel the trial judge instructed the jury that it was a case of murder or manslaughter. The trial judge did not in terms instruct the jury that it was open to acquit. No question arose in Pemble of the obligation to instruct the jury on liability for included offences. Such authority, as there was at the time, was against the existence of an obligation to leave every included offence comprised in the allegations in the indictment[40]. The correctness of that line of authority was later affirmed by the English Court of Appeal in R v Fairbanks, in which it was said that an obligation to leave a lesser alternative arises only if it is necessary in the interests of justice to do so[41]. [40]Vaughan (1908) 1 Cr App R 25; Naylor (1910) 5 Cr App R 19; Parrott (1913) 8 Cr App R 186 at 192-193.[41][1986] 1 WLR 1202 at 1205-1206. Plainly enough the fair trial of the accused may require that an alternative verdict be left, including in a case in which the accused disavows reliance on it. However, the proposition for which the appellant contends is the adoption of a rule requiring that every viable alternative verdict be left in every case. Reference should here be made to the decision of the House of Lords in R v Coutts[42], upon which the appellant relies. Coutts, like Gillard, was concerned with a trial of murder at which, with the concurrence of the parties, manslaughter was not left although that verdict was open. Lord Bingham of Cornhill endorsed the reasoning of the majority in Gilbert[43]. His Lordship went on to propose that at any trial on indictment, irrespective of the wishes of trial counsel, any obvious alternative verdict for which there is evidence should be left[44]. Two features of the proposed rule may be noted. First, its confinement to an "obvious" alternative verdict is by way of contrast with alternative verdicts "which ingenious counsel may identify through diligent research after the trial"[45]. Secondly, the interest that the proposed rule serves is the public interest in the administration of justice: in some cases application of the rule would benefit the accused, protecting against an excessive conviction, and in other cases it would benefit the public, providing for the punishment of a lawbreaker who is deserving of punishment[46]. [42][2006] 1 WLR 2154; [2006] 4 All ER 353.[43]R v Coutts [2006] 1 WLR 2154 at 2165-2166 [20], 2168 [25]; [2006] 4 All ER 353 at 366, 368.[44]R v Coutts [2006] 1 WLR 2154 at 2167 [23]; [2006] 4 All ER 353 at 367.[45]R v Coutts [2006] 1 WLR 2154 at 2167 [23] per Lord Bingham; [2006] 4 All ER 353 at 367.[46]R v Coutts [2006] 1 WLR 2154 at 2167 [23] per Lord Bingham; [2006] 4 All ER 353 at 367-368.