James v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0102

SAMUEL JAMES	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WHELAN and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 January 2013
DATE OF JUDGMENT	19 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 55 1^st Revision, 20 March 2013, [152]
JUDGMENT APPEALED FROM	R v James [2011] VSC 596 (Williams J)

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CRIMINAL LAW – Appeal – Conviction – Alternative counts of intentionally or recklessly causing serious injury – Failure to leave ‘injury’ alternative – Relevance of course of trial and defence counsel’s forensic decisions – Lies as consciousness of guilt – Whether lies relied upon capable of constituting implied admissions – Failure to direct as to evidence of bad character – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Valos Black & Associates
For the Respondent	Mr P Kidd SC with Mr G Barr	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the considerable advantage of reading in draft the respective reasons for judgment of Whelan JA and Priest JA. Their Honours have comprehensively described the course of events at the trial and have clearly exposed the legal issues raised by the grounds of appeal, in particular by ground 1 (concerning the judge’s failure to leave alternative and lesser counts to the jury).

Like Whelan JA, I have concluded that the appeal should be dismissed. I would reject ground 2, concerning consciousness of guilt, for the reasons which his Honour gives. As to ground 1, I respectfully agree with Whelan JA’s analysis of the course of the trial and with his reasons for concluding that the ground fails. As appears from what Priest JA has written, however, this ground raises an important issue of principle. The following additional considerations are relevant, in my view, as supporting the conclusion that ground 1 fails.

On the view taken by Priest JA, the fundamental right to a fair trial means that no conduct on the part of defence counsel can deny an accused the possibility of conviction for a lesser alternative offence, provided that it was a realistic possibility on the evidence.[1] In the present case, his Honour holds, the appellant was entitled to have the lesser alternatives[2] put — and the judge was obliged to put them — to the jury, notwithstanding the ‘calculated abstention’ of his counsel from requesting that the lesser alternatives be left.[3]
[1]See [200] below.
[2]Of intentionally (or recklessly) causing injury, rather than serious injury.
[3]See [196] below.

With great respect, I do not think that such an absolute proposition can be sustained on the current state of the law. On the contrary, it seems to me to be inconsistent with a series of decisions in the High Court and in this Court, to which I will refer. Those decisions emphasise that, in the appellate consideration of whether the course of a trial has occasioned a miscarriage of justice, very great significance is attached to informed decisions made by defence counsel about the best way to conduct the trial in the interests of the accused. As will appear, the proposition which underpins those decisions is that, in an adversarial system, the making of such decisions on behalf of an accused is itself an exercise of the right to a fair trial.

A convenient starting‑point is the recent decision of the High Court in Patel v The Queen.[4] The Court there had to consider whether there had been a substantial miscarriage of justice because of the admission at the appellant’s criminal trial of highly prejudicial evidence. The prosecution contended that there had been no lack of fairness to the appellant because the relevant evidence had not been objected to by his counsel. In their joint judgment, French CJ, Hayne, Kiefel and Bell JJ said:

Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel. The correctness of their counsel’s decision for the most part will not be relevant, for it is the fairness of the process which is in question. Where it can be seen that a failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process.[5]

[4](2012) 86 ALJR 954 (‘Patel’).

[5]Ibid 973 [114] (emphasis added) (citations omitted).

Their Honours here cited passages from a number of earlier High Court decisions, which spell out very clearly what is meant by a ‘rational, tactical decision’ and explain the link between the making of such decisions and the right of an accused to a fair trial. The first was a passage from the judgment of McHugh J in Suresh v The Queen,[6] where his Honour said:

Having regard to the way in which the case was conducted, it is impossible to conclude that the admission of the complaint evidence constituted a miscarriage of justice. The evidence was admitted without objection because it was perceived to be highly supportive of the defence theory of the case. Other counsel may have elected to fight the case on a different basis from that selected by the appellant’s counsel, but no one could reasonably say that a competent counsel would not have run the case in the way that defence counsel ran it at the trial.
The appellant wanted the evidence of the complaint to be admitted because its admission was perceived as giving the appellant a better chance of acquittal than if the tender of the evidence had been rejected. The admission of the complainant’s statement to her school friends therefore did not deny the accused a fair trial or result in a miscarriage of justice. On the contrary, by not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused’s acquittal.[7]

[6](1998) 72 ALJR 769.

[7]Ibid [22]–[23] (emphasis added).

The plurality in Patel also cited the joint judgment of Callinan and Heydon JJ in Ali v The Queen,[8] where their Honours had said:

It will frequently be difficult to make a confident judgment, after the event, of the actions taken and decisions made by counsel in the conduct of a long criminal trial before a jury. It is also difficult to make an assessment of the likely impact of them upon the deliberations of the jury. … The evaluation that has to be made [on appeal] is whether the conduct in question produced a miscarriage of justice, that is, whether it deprived the accused of a chance of acquittal that was fairly open. As Gaudron J in T K W J v The Queen said:
[W]hether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that as fairly open’. The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test.[9]

[8](2005) 79 ALJR 662.

[9]Ibid 677 [99] (emphasis added) (citation omitted), citing T K W J v The Queen (2002) 212 CLR 124, 133 [26]–[27] (citations omitted) (‘T K W J’).

Reference was also made in Patel to the following passage from the judgment of Gleeson CJ in Nudd v The Queen.[10] This passage is of particular importance, in my respectful view, because it draws attention to the significance which must necessarily be attached, in an adversarial system of criminal justice, to rational forensic choices made by defence counsel:

Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In T K W J v The Queen, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.[11]

[10](2006) 80 ALJR 614.

[11]Ibid 618–19 [9] (emphasis added). See also Ali v The Queen (2005) 79 ALJR 662, 664 [7].

There is long‑standing authority in this Court to similar effect. In 1974, in Re Ratten,[12] the Full Court said:

Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence. Even the Crown has some degree of choice as to what witnesses it will call. And the accused is completely free to decide how he will conduct his defence. He has the right to choose what issues he will contest, what facts he will dispute, whether he will give evidence or not, whether he will call witnesses or not, and, if he elects to call witnesses, which ones he will call. All these rights are fundamental to the conception of fair trial under our system of criminal justice.
In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present … then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice.
But on the other hand, if the reason why the additional evidence was not called is merely that the accused and his advisers made a deliberate choice not to call particular witnesses or a particular class of evidence, then obviously the accused has not been denied, but has exercised, his right to a fair trial, and there has been no miscarriage of justice of the kind described above.[13]

[12][1974] VR 201 (‘Ratten’).

[13]Ibid 214 (emphasis added).

More recently, in R v Miletic,[14] the Court of Appeal (Winneke P, Charles and Callaway JJA) noted that these passages from Ratten had been ‘re‑stated and re‑affirmed … on a number of occasions’.[15] Their Honours continued:

As [these passages] demonstrate, in our system of law a criminal trial is adversarial in its nature and counsel is entitled, on behalf of the accused, to contest such issues as he believes ought to be contested and to do so in such manner as he believes the circumstances warrant. No doubt there will be many decisions made by counsel which, in retrospect, might appear to have been ill advised. However the mere fact that such decisions have been made and appear in retrospect to have been unwise will not, of itself, lead a court of criminal appeal to quash a conviction, for the simple reason that the making of those decisions is part and parcel of the process of a fair trial.
An appellate court will nevertheless intervene if it is satisfied that something occurred at the trial which has led to a miscarriage of justice. It may be that the material before the court will demonstrate that there has been such defect of judgment or neglect of duty on the part of trial counsel that the court, on appeal, is left with the view that justice has miscarried. As Brooking J said, in his dissenting judgment in R v Sarek, at 987, there may be circumstances which make it appropriate for the court to ‘interfere to protect an accused man from his own counsel’. Each case must, of course, depend upon its own facts and it is not possible to lay down, in advance, any precise formula which will provide the answer in any given case as to what conduct by counsel will have caused a trial to miscarry.[16]

[14][1997] 1 VR 593 (‘Miletic’).

[15]Ibid 598. Their Honours here cited R v Sarek [1982] VR 971, 981; Re Knowles [1984] VR 751, 766–7; and R v Marziale (Unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Brooking JA and Southwell AJA, 18 April 1996) 24–8.

[16]Miletic [1997] 1 VR 593, 598 (emphasis added).

The Court in Miletic concluded that the decision of trial counsel (to press for the inclusion of the record of interview)

was a calculated decision made by experienced counsel in the hope of gaining a forensic advantage. … It was a decision based upon the hope and expectation that such advantage would outweigh the anticipated risk that attended the applicant’s inability to adequately explain the untruths contained in the record of interview. As we have already said, decisions of that kind are constantly made by counsel as part and parcel of the adversarial system.
There can be no suggestion that there was a departure from the rules of proper practice and procedure, in the sense that the applicant did not have a fair trial according to law. On the contrary the decision made by counsel took advantage of the rules of procedure available to him. The fact that, in hindsight, the decision did not work the advantage for which counsel and the applicant hoped is not to the point. Decisions made during the course of a trial as to the best tactics to follow are decisions which ‘depend essentially on the judgment of counsel and counsel for the defence, familiar with all aspects and features of the trial, is in by far the best position to make such decisions’.[17]

[17]Ibid 600 (emphasis added) (citation omitted). The concluding quotation is from Re Knowles [1984] VR 751, 769.

In none of the cases to which I have referred was the appellate court concerned with the present question, of whether an alternative offence should have been left to the jury despite defence counsel’s deliberate decision not to request that that be done. The statements of principle are nevertheless expressed quite generally, and are of general application, founded as they are on the basal concept of a fair trial in an adversarial system.

In any case, as both of my colleagues have pointed out, in successive decisions dealing with the question of alternative offences this Court has expressed the view that (outside the murder/manslaughter category) a rational forensic decision by counsel — not to request that an alternative be left — is likely to be very significant in determining whether the failure to leave the alternative offence produced a miscarriage of justice.[18] Those decisions can be seen to be entirely in conformity with the principle to which I have referred, that rational forensic judgments made by defence counsel constitute an exercise, rather than an infringement, of the accused’s right to a fair trial. That principle likewise reinforces the conclusion reached by the Court in Saad, that the principle in Gilbert v The Queen[19] and Gillard v The Queen[20] should be confined to cases in which the offence charged is murder.[21]
[18]R v Saad (2005) 156 A Crim R 533, 564 [102] (‘Saad’); R v Bui [2005] VSCA 300, [79]–[80]; R v D D (2007) 19 VR 143, 155-6 [39]–[44]; R v Nous (2010) 199 A Crim R 134, 146 [50].
[19](2000) 201 CLR 414 (‘Gilbert’).
[20](2003) 219 CLR 1.
[21]Saad (2005) 156 A Crim R 533, 564–5 [102].

As explained by Gaudron J in T K W J, the objective test to be applied is ‘whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage’.[22] Applying that test to the present case, it can readily be seen that the decision of defence counsel — not to request the judge to leave the lesser alternatives — was a rational one. It was a decision properly made in his client’s best interests, as it carried with it the most important of forensic advantages, namely, maximising his prospect of acquittal. (The fact that he was convicted does not affect this analysis.)
[22]T K W J (2002) 212 CLR 124, 133.

As appears from the exchange with counsel set out in Priest JA’s reasons,[23] the trial judge herself recognised this. Her Honour responded to the prosecutor’s ‘query’ about the possible introduction of the lesser alternatives by saying:

… I think to introduce that at this stage would deprive the accused man of the possibility of an acquittal on that basis.

Defence counsel, by his silence, concurred. Plainly enough, defence counsel had concluded that his client’s prospects of acquittal would be maximised if only the more serious charges (intentionally or recklessly causing serious injury) were before the jury. As Whelan JA points out,[24] the defence case was that there had been no intention on the appellant’s part to make any contact with the victim, and that he was instead trying to take evasive action because of his fear of being attacked by the victim. Had the lesser alternatives been left, the jury might have preferred ‘to take a middle course which is offered to them’, rather than to acquit altogether.[25]

[23]See [155] below.

[24]See [44]–[48] below.

[25]Saad (2005) 156 A Crim R 533, 560 [91], citing Gilbert (2000) 201 CLR 414, 421 [17].

There is a related consideration, no less important, which concerns the obligation of a judge when instructing a jury. In her response to the prosecutor’s query about the alternative offences, her Honour said:

The case hasn’t been framed in that way …

This perfectly correct statement — which neither counsel challenged — reflected both the unfairness which would flow from the prosecution’s changing its case at the last minute and also her Honour’s obligation to frame the charge to the jury by reference to — and only to — the real issues in the trial.

As this Court said in 2005 in R v A J S:

In any given trial, the scope of the direction on these topics [the relevant law and the relevant evidence] will be defined — and limited — by the trial judge’s identification of the matters in issue.

Axiomatically, it is the responsibility of the trial judge in every jury trial:
(a)to decide what are the real issues in the case;
(b)to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c)to tell the jury, in the light of the law, what those issues are;
(d)to explain to the jury how the law applies to the facts of the case; and
(e)to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.

These propositions are of long-standing and of high authority. They have often been repeated in this court. If adhered to, they should serve to simplify, rather than complicate, the task of the trial judge. Adherence to them is, of course, essential if the jury is to be adequately equipped for its task.[26]

[26]R v A J S [2005] 12 VR 563, 577 [54]–[56] (citation omitted).

In 2012, the High Court in R v Getachew[27] emphatically reaffirmed the importance of trial judges shaping their directions by reference to ‘the real issues in the trial’:

The directions to be given to a jury on a trial for rape are to be moulded in the light of the proper construction of the relevant provisions of the Crimes Act and, no less importantly, having regard to the real issues in the trial. As this Court has repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury need to know to decide those issues.[28]

[27](2012) 86 ALJR 397.

[28]Ibid 404 [29] (citation omitted). The judgment here cited a large number of previous decisions of the Court, beginning with Alford v Magee (1952) 85 CLR 437, 466 and ending with Hargraves v The Queen (2011) 85 ALJR 1254, [42].

If I may say so with respect, the trial judge in the present case discharged this obligation in exemplary fashion. As appears from the reasons of Whelan JA, her Honour was astute throughout the trial to ensure that the ‘real issues’ were identified, and she instructed the jury accordingly. Nothing occurred at any stage of this trial to suggest that there was an issue about whether the appellant had committed one or other of the lesser offences.

Of course, much of the responsibility for defining the ‘real issues’ in a criminal trial falls to defence counsel. As the Full Court said in Ratten, the right of an accused to make choices about which issues to contest is ‘fundamental to the conception of fair trial under our system of criminal justice’.[29] In short, the considerations to which I have referred — about the significance of decisions made by defence counsel, and the need to define the ‘real issues’ — are closely linked.
[29]Ratten [1974] VR 201, 214.

This nexus is helpfully illustrated by the last of the passages cited by the plurality in Patel.[30] In Tully v The Queen,[31] Callinan J (with whom on this point Heydon J agreed) said:

No matter what the proper characterisation of the evidence of the uncharged acts was here, the fact is the appellant did not object to it, and sought to make forensic capital out of the self-contradictions in it, and generally, its incredibility because of its excessiveness. Furthermore, the appellant sought no redirection as to the way in which the trial judge dealt with it. This was almost certainly because the trial judge emphasised more than once the necessity for the jury to be satisfied beyond reasonable doubt that the complainant’s evidence about the offences charged was true, and repeated the submission on the appellant’s behalf that there were inconsistencies in the evidence of the complainant. The trial judge’s directions were certainly spare, but not quite to the point of insufficiency in the circumstances. It would no doubt have been better if close attention had been paid to the nature and admissibility of the evidence of the uncharged acts, and the possibility of the desirability of different directions concerning them from those which were given. But, as the trial was conducted by the parties, and the issues joined, there was no error which could have led to a miscarriage of justice.[32]
[30]Patel (2012) 86 ALJR 954, 973 [114].
[31](2006) 230 CLR 234.
[32]Ibid 280 [149] (emphasis added).

WHELAN JA:

I have read the reasons of Priest JA in draft. I agree with him that ground 3 is without substance and I have nothing to add. I am unable to agree with him in relation to grounds 1 and 2.

Priest JA has said something about the course of the trial and has summarised

the evidence. In order to deal with the two grounds upon which I find I am unable to agree with him, it is necessary that I review the course of the trial in relation to each of them. There are also some aspects of the evidence which I need to add to the summary Priest JA has set out.

I will review the course of the trial in relation to the issue of alternative ‘injury’ verdicts, set out the additional matters in the evidence to which I wish to refer, and then deal with ground 1. I will then set out the course of the trial in relation to the consciousness of guilt issues and deal with ground 2.

Course of the trial – ‘injury’ alternatives – what was in issue and what was open

The prosecution case was that Mr James had deliberately driven his car into Mr Sleiman. The injuries which Mr Sleiman suffered were serious on any view.[33]
[33]The appellant’s summary of relevant facts describes at [4.5] the injuries suffered by Mr Sleiman as follows:
He suffered haematomas of the right chin and left eye socket; a small subdural haematoma and post traumatic amnesia; abrasions and bruising; fractures of the tip of his back and skull, three neck bones on the left side, his left collarbone, his pelvis bilaterally, his lower back, his left pubic bone, his hip joints, bilaterally, seven of his twelve right ribs and eight of his twelve left ribs, a compound fracture of his left ankle and foot; surgical emphysema; bilateral haemopneumothoraces; two open penetrating wounds to his abdomen; abrasions to his left elbow and knee; a swollen right ankle; and a grade four (out of five) laceration to his left kidney. [He] underwent a number of surgical procedures and his wounds were sutured. He also developed complications, including chronic inflammation of the gall bladder which necessitated a drainage tube. He developed a bacterial infection and wound breakdowns in his left ankle, requiring multiple surgical washouts. His neck fractures required him to wear a neck brace for six weeks. He developed avascular necrosis of his ankle bone, so that parts of the bone died. He spent five weeks in hospital and a further three months in rehabilitation. He has since been wheelchair bound ever since the incident. He hoped to walk again and continued to have physiotherapy treatment.

Mr James was initially arraigned before Lasry J on a presentment containing one count of the offence of intentionally causing serious injury and an alternative count of recklessly causing serious injury. The trial before Lasry J began in January 2010 but the jury was discharged before verdict.

On 29 August 2011 Mr James was arraigned on the same presentment before Williams J. At the outset Williams J advised counsel that she proposed to give the jury two sheets of paper with the elements of the two offences on the presentment set out. She observed that Lasry J had only given the jury a sheet with the elements of the offence of intentionally causing serious injury but that she proposed to give the jury the elements of the alternative count as well. Counsel agreed with that course. In the course of that discussion counsel for Mr James said: ‘Serious injury is conceded your Honour’. Counsel subsequently advised her Honour that they were happy with the elements as she had set them out on the sheets which were to be given to the jury.

The sheets upon which the elements were set out do not seem to have been retained on the file. It is clear from the transcript that the elements of each count were briefly listed in a way identical to, or very close to, what is set out in the Victorian Criminal Charge Book.[34] The elements for the offence of intentionally causing serious injury are set out and numbered as follows:
[34]See Victorian Criminal Charge Book at [7.4.1.1.5].

1. that the complainant suffered a serious injury; and

2. that the accused caused the complainant’s serious injury; and

3. that the accused intended to cause serious injury to the complainant; and

4. that the accused acted without lawful justification or excuse.

On the alternative count of recklessly causing serious injury only the third element is different. On the alternative count the prosecution must prove that at the time the accused did the acts that caused the serious injury he was aware that those acts would probably result in the complainant being seriously injured.

In the course of the trial the matters in issue were canvassed by counsel both before the jury and in their absence. Sometimes reference was made to the alternative reckless count on the presentment and sometimes it was not. No-one ever lost sight of that alternative, but it was not seen as necessary to make reference to it whenever the third element was the subject of discussion.

After the Crown opening, defence counsel outlined to the jury what the defence perceived to be the issues in the case.

Defence counsel told the jury that there were ‘three real issues’. The first of those issues concerned the credit of Mr Sleiman. Counsel said that Mr Sleiman had lied when he told Police that he had taken a knife to his meeting with Mr James because he used it ‘for cutting fruit’. Counsel contrasted Mr Sleiman’s credit with that of Mr James who had answered police questions without a lawyer, when told he did not have to, and who had told the police that Mr Sleiman ‘ … came at me with a knife’.

The second matter addressed by counsel was that the jury should be careful not to allow sympathy for Mr Sleiman to confuse the issue. Counsel said:

… do not confuse the fact that he was seriously injured with there must be fault elsewhere. If he’d succeeded in stabbing my client, Mr Sleiman would be down the back and my client would be either in Springvale Cemetery or in the witness box.

The third issue which counsel put to the jury concerned the disputed debt and related again to Mr Sleiman’s credit.

Counsel then made reference to Mr Sleiman’s prior convictions and said:

You start trying to stab someone through a car with a knife, you’re taking your chances, and my client is entitled to do what he needs to do to get away from a situation that could have ended in his death.

The way defence counsel put the matter to the jury was that Mr James reacted to an attack upon him with a knife by Mr Sleiman and that he was entitled to ‘do what he needed to do to get away’. In his record of interview Mr James had said that Mr Sleiman came to the door of his vehicle with a knife, a big knife, and that he drove off trying to avoid him. He had said he ‘just avoided him and kept going’. He had maintained that he did not know that he had hit Mr Sleiman or injured him.

After defence counsel had told the jury what he said the issues were, the trial judge sought to clarify the issues with him in the absence of the jury. Defence counsel then said:

The two issues are intent, in that the jury will need to be satisfied he had an intention in relation to his actions, and obviously the intention to cause serious injury, but also they will then need, if they get to that stage, which is obviously the first step, and if they didn’t get to that stage the verdicts would be not guilty. They will then need to be satisfied beyond reasonable doubt there was no lawful excuse in relation to those actions, if they’re satisfied that the requisite intent was formed to do the actions and to cause a serious injury.

Her Honour then distributed the sheets containing the elements of the offences to the jury. She told them:

You are the judges of the facts in this case and you have to decide at the end of the case whether the prosecution has satisfied you beyond reasonable doubt of the crime in question, the elements of the crime in question. So you have to decide that.
But there’s no issue between the parties about the first two elements of those crimes. You will see that they’re both the same. That Mr Sleiman has been seriously injured and that his serious injury was caused by Mr James. There is no dispute between the parties about those two elements.
There are issues, though, as to whether Mr James caused that serious injury intentionally or whether he caused it recklessly and as to whether you should be satisfied that he wasn’t acting in self defence. They’re the matters in dispute between the parties.

There was continuing debate throughout the course of the trial between counsel for the prosecution and counsel for the defence in relation to a number of matters. One of them was tension and ambiguity which the prosecution suggested existed as a result of the defence position that any contact between Mr James’ car and Mr Sleiman was accidental and, at the same time, that Mr James had acted in self-defence. In this context, and more generally, the trial judge and defence counsel discussed the issue of intention on a number of occasions.

Defence counsel accepted that Mr James intended to drive the car in the way that he did, but did not accept that he deliberately hit Mr Sleiman. At one point the following interchange occurred between the judge and defence counsel:

HER HONOUR: Just hold on. You are going to go to the jury and say, ‘Yes, we intended the act but no, we didn’t intend to cause serious injury’, because that’s where the intention comes in.
[DEFENCE COUNSEL]: What I’m going to be saying to the jury is, ‘I say that you should accept that [the victim] had a knife in his hand, that he was being threatening about it, that the evidence from Monica Woods of him driving backwards and forwards and him not leaving the area of the car like he appeared to be glued there, I’m paraphrasing now, is consistent with what we say. It’s jerky motions with the car going backwards and forwards a metre which clearly couldn’t hit anyone in the context of what she’s described. He clearly has hit him. He’s left the car park in an extraordinary manner of driving over the hedges. Now, do you think that when events happen in such sudden unexpected repetitively because, my friend will hear the truth, to suggest that you’re going to meet someone in the circumstances we’ve heard about.

Her Honour interrupted counsel at that point suggesting that he was not really addressing the issue of how the question of intention was to be put.

Defence counsel then said: ‘There is no doubt that he intended the acts he did in relation to whatever actions he took on the steering wheel of that car’.

He then went on:

The first step is if they’re not satisfied – and this is what I said the other day, if they’re not satisfied beyond reasonable doubt of intention, and when I use the word ‘intention’ in this context I mean the intention to cause serious injury or recklessly cause serious injury, not the conscious, deliberate and voluntary doing of actual actions, but the intention to cause those things, they will return a verdict of not guilty. They may well be of the view that in the circumstances there was – they don’t accept the explanation, but are of the view that in the circumstances as they find them he was entitled to move the car as he did to defend himself …

There was never any doubt that the prosecution needed to prove an intention to cause serious injury, or that that element was in issue in the trial. But the issue in controversy as to intention did not concern the severity of the injury intended; rather, it concerned whether any injury was intended. The issue was whether the impact between the vehicle and Mr Sleiman was deliberate or not. As noted earlier, the appellant’s account at interview was that he had been taking evasive action and had not even been aware of making contact with Mr Sleiman.

The appellant’s written case on the application for leave to appeal correctly describes what the issues were in the trial. The written case reads [at para 6.6]:

The defence case was, after all, two-fold. Primarily, it was submitted that the applicant had, without knowledge or accidentally, struck KS and caused his injuries. Alternatively, it was submitted that he, under threat from KS and a knife, caused KS’s injuries in self defence.

It was never suggested, in the course of the many interchanges between counsel and the trial judge as to the third element, that it might be open to conclude that Mr James had struck Mr Sleiman deliberately, causing the serious injuries which he did suffer, but with an intention of causing injury rather than serious injury.

In his final address to the jury when dealing with the issue of intention, defence counsel emphasised that they must differentiate between intention, in the sense of intentionally performing the manoeuvres which Mr James did in his car, and intention in the sense of intending to cause injury ‘of any description without lawful excuse’.

After defence counsel’s closing address the judge confirmed with him that the issue in relation to intention was: ‘Whether there was an intention to hit Mr Sleiman, that is drive at him deliberately or accidentally …’. In the course of a long discussion with the judge about the issue, defence counsel repeatedly confirmed that the only issue as to the third element was whether the impact was deliberate or accidental.

Her Honour commenced charging late in the afternoon on the sixth day of hearing.

Her Honour dealt with the elements of the two offences on the presentment by reference to the sheets which she had handed out at the outset and which counsel had approved. She told the jury that it was not disputed that Mr James had caused Mr Sleiman serious injury and that Mr James admitted striking Mr Sleiman with his car and causing that serious injury. She told them: ‘But he argues that he didn’t hit him with his vehicle intending to cause him a serious injury’. She then went on to tell them that if they found that he did hit Mr Sleiman intending serious injury then they would need to consider self-defence.

Before adjourning that afternoon, she encapsulated the issues for the jury in the following terms:

So, you can see that there are a number of facts about which you must be satisfied beyond reasonable doubt before you could find Samuel James guilty of the principal offence of intentionally causing serious injury and I will just recap them.
First, that he deliberately hit Sam Sleiman with his vehicle and didn’t hit him by accident. Secondly, that Samuel James intended to cause Sam Sleiman serious injury when he hit him deliberately and that he did not act in self defence when he intentionally caused that serious injury.

When dealing with the elements of the offences on the presentment that afternoon her Honour did not give the jury the standard directions about what constitutes a ‘serious’ injury and the direction that an intention to only injure would not satisfy the third element. She addressed the jury as if the only issue on the third element was whether the impact was deliberate or not. As I have explained, this reflected the interchanges with counsel throughout the trial. There were no exceptions to what her Honour said that afternoon.

Her Honour charged throughout the following day, the seventh day of hearing, dealing with other matters, including the consciousness of guilt issues to which I will turn below. Her Honour had effectively completed her charge at the end of that day, leaving just a few more formal matters to be addressed the following morning.

On the morning of the eighth day of hearing, before the jury came in, the following interchange occurred:

HER HONOUR: I realised last night that I had not told the jury, despite the agreement between the parties that Mr Sleiman suffered serious injury, that it’s up to them and I’ve not told them what a serious injury is and I think I should do that.
[PROSECUTOR]: Yes, your Honour.
HER HONOUR: I also realised that I’d not told them that it would not be sufficient for the intent to be to injure. There must be an intention to seriously injure although it doesn’t need to be an intention to inflict that injury.
COUNSEL: Yes.
[PROSECUTOR]: I agree with that, your Honour, and then the combination of injuries.
HER HONOUR: Yes, and then the combination of injuries. Yes, I’ll read the serious injury description in full and the same with the intention, which I hadn’t done.

When the jury entered the court her Honour then gave them the standard directions from the charge book in relation to ‘serious’ injury. Amongst other things, in accordance with those standard directions, she told them:

So this element will not be satisfied if he only intended to injure Mr Sleiman, but happened to seriously injure him. He has to have intended to seriously injure him.

The jury retired to consider their verdict very soon after that further direction.

Approximately an hour and a half after the jury had retired, they returned with three questions. The third question was as follows: ‘Need further clarification between the third elements of each charge, that is, difference between intent and being aware that his acts would probably cause serious injury’.

The trial judge discussed that question with counsel. The issue which had been often canvassed during the trial - as to the difference between intending to manoeuvre the car in a particular way and intending to cause the serious injuries -was again addressed. The following interchange occurred in that context:

HER HONOUR: What does that mean? ‘Intention to propel the vehicle as he did’, that means drive as he did, drive forwards as he did, at the speed he did, in the direction he did.
[DEFENCE COUNSEL]: Yes. That is different to the intention which needs to be inferred that he did those acts with the intention of striking Mr Sleiman.
HER HONOUR: No, not with the intention of striking, with the intention of causing him really serious injury.
[DEFENCE COUNSEL]: Yes, but it must follow in the context of this case that he intended to strike him, in the context of this case, and he had when he intended to strike him the intention to cause serious injury.
HER HONOUR: Yes.

In this passage defence counsel expressly articulated something which had been tacitly accepted throughout the trial. This was that if Mr James had hit Mr Sleiman deliberately it must follow that he intended serious injury.

Shortly afterwards defence counsel articulated the issue as follows:

The issue is not did he intend to drive his car, did he intend to drive his car into Mr Sleiman? That’s the issue.

A little later her Honour said:

It’s the act of driving in the circumstances that causes the injury, isn’t it? It’s the driving, it’s the driving he does, that causes the injury because driving as he does, he hits Mr Sleiman and there are two things; he can either intend, if you like to hit him and cause him really serious injury, which is the principal charge, that’s what is said the jury should infer, that he’s got a man in front of him and he intentionally drives the car forward in those circumstances. Well, the prosecution says he’s got to have intended to cause him really serious injury.
MR SHIELDS: I agree with that.

Here defence counsel explicitly accepted (again) what in my view had been implicit throughout the course of the trial. If the impact was deliberate, the requisite intention must follow, in this case.

Defence counsel in this case is an experienced criminal barrister. He has conducted many criminal trials. It is apparent from his conduct of this trial, in relation to the many disputed issues which arose, that he does not concede issues lightly. It seems to me that when the jury retired the possibility that Mr James had struck Mr Sleiman with his vehicle deliberately but without the requisite intention had never occurred to anyone involved in the trial as a realistic possibility.

The answer which the judge gave to the jury’s third question was, in substance, a repetition of the directions she had given previously in relation to the third element of the two offences. She repeated the directions which she had previously given, after her charge had all but concluded, which included the direction that the third element would not be satisfied if Mr James only intended to injure Mr Sleiman but happened to seriously injure him.

It was after that answer that the prosecutor raised the question of whether the jury should be directed as to the possibility of finding an intention to, or foreseeing the probability of, injury as opposed to serious injury. Priest JA has set out the relevant interchange between the prosecutor and the trial judge.

It seems to me the issue was raised somewhat diffidently by the prosecutor, and I think it is fair to say that her Honour’s reaction to it was to reject it out of hand. She did so not only because it was being raised so late but also because ‘the case hasn’t been framed in that way’ and because ‘to introduce that at this stage would deprive the accused man of the possibility of an acquittal’.

Defence counsel said nothing while this interchange was taking place, and the prosecutor did not persist, saying ‘I say no more’.

Additional aspects of the evidence

There are some aspects of the evidence which I think need to be added to the summary Priest JA has given. They are:

1. Mr Sleiman when giving his evidence said that, prior to Mr James’ vehicle arriving at the car park, he was having an angry and animated argument with him over his mobile phone. Whilst Ms Woods in her evidence was unable to say whether Mr Sleiman had a phone, Mr Sleiman’s evidence did put in context the evidence she gave about Mr Sleiman yelling and behaving erratically in the car park before Mr James arrived.

2. It is true that Ms Woods did not include in her statement, or in the evidence she gave at the committal, her evidence that she saw Mr James run over Mr Sleiman after the initial impact. I would only add that in her evidence she was adamant that that was her memory as she stood in the witness box, and she also said that as time went by she had thought about it and remembered more things.

3. Finally, in relation to the evidence of Dr Cunningham, I would observe, firstly, that she said it was ‘highly’ unlikely that the injuries sustained were a result of a glancing blow. Secondly, the evidence Dr Cunningham gave about three ‘scenarios’ which might account for the injuries she saw needs to be put in its context. She was asked whether the injuries were the result of one impact or several impacts. She explained that there were injuries she described as ‘primary’ and injuries which she then referred to as being ‘further injuries’ or ‘subsequent injuries’. She made it clear that she was not suggesting that she was able to categorise all the particular injuries into these components. It was in that context that she gave evidence of various scenarios which might explain the multiplicity of injuries. Each of those scenarios involved at least two occasions of trauma. There was an initial or primary impact causing injuries, followed by further injuries as a consequence of being thrown over the bonnet, or impacted by the car whilst on the ground, or impact with the ground after a primary impact from the car. This evidence was unchallenged. The injuries sustained were extensive and life threatening. I do not think it is difficult to see why the trial proceeded on the basis that if the impact was deliberate the requisite state of mind would be established.

Ground 1 – failure to leave the lesser alternatives

I agree with Priest JA that it is plain that defence counsel, for forensic reasons, deliberately decided not to ask the judge to direct the jury about the lesser alternatives, being intentionally causing injury or recklessly causing injury. But it seems to me that it went further than that. During the course of the trial the ‘injury’ alternatives were never perceived by any party as being realistically open, so much so that the trial judge initially gave no direction at all about the ‘serious’ component of third element of the charged offences, without any exception being taken by counsel. Defence counsel expressly stated when addressing the trial judge on the jury question, that, in the circumstances of this case, if it was found that Mr James had deliberately struck Mr Sleiman with his car then he had had the requisite intention.

I wish to emphasise that I see no shortcoming, or failure to protect his client’s interests, in defence counsel’s approach.

The issue then becomes what is the trial judge’s legal obligation in relation to lesser alternatives in these circumstances.

In R v Kane[35] this Court divided on the issue of whether the alternatives of intentionally and recklessly causing injury ought to have been left in a trial where the accused had been presented on counts of intentionally causing serious injury and recklessly causing serious injury. The particular injuries in that case were a stab wound inflicted with a pair of scissors and other injuries inflicted after the victim’s head had been pounded against a door handle. The Crown opened the case on the basis that the serious injury was either the stab wound alone or a combination of all of the injuries including the stab wound. In the course of the trial the Crown changed its position contending that the accused could be convicted on the basis of the injuries other than the stab wound.
[35](2001) 3 VR 542 (‘Kane’).

In Kane the majority held that the lesser alternatives should have been left. Ormiston JA dissented. He reviewed the authorities in detail and concluded that there is no basis in principle for insisting that lesser alternative charges be left in every case, except in cases where the charge is murder and the alternative is manslaughter. Ormiston JA considered that the issue of whether lesser alternatives should be left otherwise depended upon all the circumstances of the particular case including the attitude of defence counsel. He said:[36]

This long excursus has been intended to show that, except in cases of homicide, there is no basis in principle for asserting that suspicion of the deliberations of the jury justifies an insistence on all alternative charges being left and explained to a jury; nor can such a ‘principle’ satisfactorily form a basis for holding that, where that is not done, the verdict on the primary charge must be overturned without question. That does not preclude the Court taking a different view if circumstances justify it. Clearly it would be different if the accused or counsel has raised the issue or has sought that any alternative charge be left for the jury’s consideration.

[36]Ibid 572-3, [63].

Callaway JA, with whom Batt JA agreed, determined that the change in the Crown case, in the particular circumstances there, meant that a direction about the lesser alternatives had been required. But Callaway JA said that … ‘[t]he position would have been different if the choice had remained between the stab wound on its own and all the injuries including the stab wound.’[37] Callaway JA went on to explain that there was a view of the evidence which would have led to a conclusion that the accused was not responsible for the stab wound. He pointed out that the other injuries could amount to serious injury, but, in the way the case was conducted, it was not accepted that they would do so.[38] He then observed:[39]

In the form in which the case was ultimately left to the jury it was not, or was no longer, an ‘all or nothing’ case. It stood in contrast with one where the injury on which the Crown relies is a serious injury on any view.

[37]Ibid 586, [108].

[38]Ibid [109].

[39]Ibid [110].

In a postscript to his judgment, written in response to Ormiston JA’s judgment, Callaway JA said:[40]

… I do not consider that every alternative verdict must be left to a jury. The answer to the question whether any such verdict should be left depends on all the circumstances, including the dictates of public interest, fairness to the accused, the course of the trial and the scope for forensic judgment on the part of counsel. The test is what justice requires in the particular case.

[40]Ibid 588, [116]. (Emphasis is in the judgment.)

In R v Saad[41] Nettle JA, with whom Chernov JA and Harper AJA agreed, reviewed the relevant authorities including Gilbert v The Queen,[42] Kane and in particular Ormiston JA’s dissenting judgment, and Gillard v The Queen,[43] and concluded that in relation to offences other than murder (and in relation to murder where the relevant lesser alternative is not an ‘included’ offence), the question of whether a lesser alternative is to be left to the jury is to be decided in accordance with what was said to be the general principle identified in Kane, being what justice requires in the particular circumstances of the case. That, in turn, depends on all the circumstances of the case, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope for forensic judgment on the part of the accused’s counsel. His Honour went on:[44]

Above all, however, one must keep in mind the course of the trial. Other things being equal the effect of forensic judgment on the part of counsel is likely to be one of the most important considerations for, notably, that was the basis on which Callinan J distinguished Ross in Gilbert. As his Honour put it, counsel in Ross had made an informed decision to abstain from seeking an alternative verdict of manslaughter. It has since been held in Gillard that counsel’s calculated abstention from seeking that manslaughter be left as an alternative to murder is no longer a basis for the judge not to leave it as an alternative verdict. But for the reasons already given, I take Gilbert and Gillard to be confined to cases in which the offence charged is murder and the ground of appeal is the judge’s failure to leave to the jury an available alternative verdict of manslaughter. As I see it, calculated abstention from raising any other possible alternative verdict remains a very relevant consideration in other cases.

[41][2005] VSCA 249 (‘Saad’).

[42](2001) CLR 414.

[43](2003) 139 A Crim R 100.

[44][2005] VSCA 249, [102].

Nettle JA’s analysis of Gilbert was adopted and approved by this Court in R v Bui.[45]
[45][2005] VSCA 300, [76].

In R v Christy[46] this Court referred to Nettle JA’s analysis of Gilbert and Gillard in Saad, indicating that it was unnecessary to enter substantially upon the debate as to the reach of the principles there. But having quoted what Nettle JA had said in Saad about the forensic judgment of counsel being likely to be one of the most important considerations, Kaye AJA, with whom Maxwell P and Kellam JA agreed, said:[47]

It follows from the foregoing authorities that the critical question in this appeal is whether the decision of the trial judge to remove the charge of common assault from the jury’s consideration might have deprived the applicant of a fair trial. That question needs to be addressed in the context of the issues which were at large in the trial, and in the context of the course which the trial took.

[46](2007) 16 VR 647.

[47]Ibid 655, [37].

Nettle JA’s analysis in Saad was expressly adopted by this Court in R v D D.[48]
[48](2007) 19 VR 143, 153–5, [35]–[40].

If there remained any continuing uncertainty as to the importance in this context of the course of the trial and the attitude of defence counsel, in my view it was removed by the decision of this Court in R v Nous.[49] After reviewing the authorities, the Court held:[50]
[49][2010] VSCA 42.
[50]Ibid [48]–[50].

The following factors bear upon whether, in the interests of justice, in cases other than murder/manslaughter, a lesser alternative offence should be left to the jury:
(1)the presence of evidence which raises the alternative offence as a real and not remote or artificial possibility;
(2)reliance by a party upon such evidence in the course of the trial as evidence which is inconsistent with proof of one or more of the elements of the more serious offence;
(3)a real chance that the jury may convict the accused of the lesser offence; and
(4)a request by a party that the lesser alternative offence be left to the jury.
…

A failure by counsel at trial to request that the alternative lesser offence be left to the jury will generally assume great significance on an appeal if complaint is made for the first time that the lesser alternative offence was not left to the jury.

In Victoria (in cases other than murder at least) the test to be applied in determining whether lesser alternatives are to be left is what justice requires in the particular circumstances of the case. In that context the position taken by defence counsel at trial may be a significant factor. This has been the accepted situation in Victoria for some years as a consequence of a series of decisions by this Court.[51] The circumstances in which this Court may properly depart from its own prior decisions, other than when constituted by a bench of five, are exceptional.[52] I do not consider that such exceptional circumstances exist here.
[51]Bourke’s Criminal Law at 7505.5 adopts and quotes the analysis in Saad and Nous. The bench notes in the Victorian Criminal Charge Book adopt the same approach, and did so at the time of this trial.
[52]Avco Financial Services v Abschinski [1994] 2 VR 659, 667-9 (Southwell J).

Turning then to the question of whether justice required, in the particular circumstances of this case, that the lesser alternatives be left, it seems to me that the relevant considerations are the following:

(1)This was a case of the kind to which Callaway JA had referred in Kane where the injury was serious on any view.
(2)There was little evidence which raised the lesser alternatives as a real and not remote or artificial possibility. The lesser alternatives were not realistically open on the basis of the evidence given in the trial by Mr Sleiman or by Monica Woods, or in the evidence constituted by Mr James’ record of interview. Mr James in his record of interview had said that he had tried to avoid Mr Sleiman, that he had avoided him, and that he had left the car park not knowing that he had been injured at all. In my view, this was what Callaway JA had called in Kane an ‘all or nothing’ case.
(3)The only evidence which might have supported a conclusion that the striking was deliberate but that there had not been an intention to seriously injure (or foresight of that probability) was the evidence constituted by the references to Mr Sleiman’s police statement where he had apparently said that Mr James had hit him while reversing and swinging the wheel. Mr Sleiman did not, in my view, adopt that evidence when it was put to him in cross-examination. On the basis of this evidence it was theoretically possible that a conclusion could have been reached that there was an intention to injure whilst having a reasonable doubt about an intention to seriously injure but in the circumstances of this case that was remote. Amongst other things, it seems to me that that conclusion would have required the rejection of Dr Cunningham’s uncontested evidence as to the scenarios which would account for the injuries.

(4)It was never put to the jury by any party at the trial that there was evidence which could, or should, lead to a conclusion that the accused might be not guilty of the charged offences but be guilty of the lesser alternatives.
(5)Defence counsel’s attitude went beyond calculated abstention from raising the lesser alternatives. There was certainly that; but in addition defence counsel tacitly adopted the trial judge’s emphatic rejection of the possibility in response to the prosecutor’s diffident raising of the issue after the jury question had been answered. More importantly, defence counsel throughout the trial had implicitly accepted that, if Mr James had struck Mr Sleiman deliberately, the requisite state of mind in terms of serious injury must follow, and he twice expressly adopted that position when addressing the jury question.

In my view, this ground should be rejected. There was little evidence which raised the lesser alternative offences as real possibilities. No party relied upon that evidence to suggest that conviction on the lesser alternatives was open. This was an ‘all or nothing’ case involving injuries which were serious on any view. The attitude of defence counsel was clear and unequivocal. This Court should be loath to substitute its own retrospective judgment based on the transcript for that of the experienced counsel who conducted the trial.

Review of the trial – consciousness of guilt

At the conclusion of the trial, the only matters put to the jury as consciousness of guilt were certain aspects of certain lies alleged by the prosecution. But when the trial began there were a range of matters which potentially raised issues of consciousness of guilt.

The consciousness of guilt issue was first raised on the third day of the hearing. Her Honour referred to the fact that lies and post-offence conduct had been mentioned. The prosecutor then began outlining proposed reliance on post-offence conduct. This conduct was the subject of submissions throughout the course of the trial thereafter. In substance, the Crown wished to rely on Mr James’ failure to continue to pursue the debt which he alleged Mr Sleiman had owed him after the incident as being evidence of consciousness of guilt. It was also said that there had been flight of a kind, in that Mr James had failed to return home for several days after the alleged incident. After the initial exchange, her Honour foreshadowed the need to address the consciousness of guilt issues the following day.

On the following day (fourth day of hearing), the issue was addressed again. Defence counsel referred to the prosecution’s reliance upon alleged lies in the record of interview. The prosecutor told the Court that he would provide the Court and the defence with a note or summary of how the consciousness of guilt issues were put.

On the following day (the fifth day of hearing), there was a delay in the next witness and, while waiting, the issues concerning consciousness of guilt were addressed again. The prosecution had delivered a document headed ‘Post-offence Conduct Relied On By The Crown’. That document was placed on the Court file. There were three items in that document. The third one concerned the alleged failure to follow up the debt. The other two items, under each of which were detailed references to the record of interview and to the evidence, were:

(1)The accused asserts in the record of interview that his motor vehicle did not strike Sleiman injuring him; that he ‘avoided him’. It is open to the jury to conclude this assertion is a lie.
(2)The accused asserts in the record of interview that he had no idea he had injured Sleiman. It is open to the jury to conclude this assertion is a lie.

In the document the Crown provided, the particular words used in particular answers in the record of interview were extracted so as to confine the lies relied upon to two specific assertions – that the appellant had avoided Mr Sleiman and that he had no idea he had injured Mr Sleiman.

Most of the early submissions on the document concerned the post-offence conduct in item 3. The defence submitted the prosecution could not rely upon that conduct as consciousness of guilt. The prosecutor eventually gave up on item 3.

As to the alleged lies, and in particular the evidence which would prove the two assertions relied upon to be lies, the prosecutor said the following:

Yes, there’s two – the Crown would rely on, to prove the falsity of the propositions, the Crown relies on the evidence of Monica Woods and also the medical evidence and you argue, the argument will be, it’s a matter of drawing an inference, that you could not have caused those injuries by avoiding, what ever that might mean – I mean, subject to debate too I suppose – but we’re talking about what the jury is capable of finding. You couldn’t cause those injuries without – by avoiding, which is the lie, the victim. So we say it rests on, it rests a bit on I suppose Khadr Sleiman’s evidence but it mostly rests on the observations made by Monica Woods and the medical evidence to demonstrate the untruths.

Defence counsel initially objected to reliance upon the specified lies as consciousness of guilt. Submissions were made in relation to the answers given in the record of interview and defence counsel particularly relied upon the divergences between Mr Sleiman’s evidence and Monica Woods’ evidence, submitting that the Crown ought to be required to say which version they were going to submit that the jury should adopt.

Most of the submissions at this point were directed towards clarifying the aspects of what Mr James had said in his record of interview which were relied upon as being consciousness of guilt lies. Those aspects were that he had avoided Mr Sleiman and that he was unaware he was injured. That having been identified as the ambit of what was to be put, defence counsel then said (somewhat in frustration perhaps):

Alright. Your Honour, I’m not objecting to any of this any further so I withdraw my objections, so which ever ones Mr Horgan identifies I have no objection to an Edwards direction attaching and it should be a full Edwards direction.

Defence counsel did reserve his position to this extent. He said that he might need to re-address the issue after he had heard the prosecutor’s final address.

In his final address the prosecutor submitted that Mr James had given a ‘demonstrably false account’ of what had happened that night. He dealt with the consciousness of guilt lies very briefly at the end of his address. He said that there were two specific things Mr James had said which the trial judge would tell them they could use in a particular way as consciousness of guilt.

Defence counsel put to the jury that what Mr James had said in his record of interview was the truth.

On the day after the addresses (the sixth day of hearing), the trial judge gave counsel a draft of what she proposed to say about consciousness of guilt. She also gave counsel a new draft of what she proposed to say about self defence. She had provided an earlier draft on self defence to counsel. Defence counsel began making submissions by reference to those drafts.

Defence counsel submitted that, as he understood it, the inference which the prosecution said could be drawn from the consciousness of guilt lies concerned intention and that the consciousness of guilt lies were not relied upon as negating self defence. Defence counsel said that, when he had conceded that the lies could be relied upon as consciousness of guilt, he had done it on the basis that it went only to intention and not rebutting self defence. Defence counsel said:

I conceded the application on the basis upon which it was being advanced to your Honour, which was, it tended to incriminate him in relation to his driving and his intention to strike and his intention to cause serious injury. But not in relation to rebutting self defence. That’s what I conceded. That was the application before your Honour.

Counsel then began working through the trial judge’s draft of what she proposed to say in relation to consciousness of guilt.

The first matter which was dealt with was that defence counsel did not wish the directions to be confined to the specific aspects of the answers upon which the prosecution relied. He wanted larger sections of the record of interview read so as to give context to what was said. Defence counsel also wanted an explanation to be given by the trial judge in relation to one of the questions, and he wanted her to say that the consciousness of guilt issue did not relate to the issue of self defence. Finally, counsel suggested certain inclusions in the portion of the draft charge dealing with other possibilities or explanations for the alleged lies.

Counsel for the Crown argued against the suggestion that the consciousness of guilt lies were not relevant to negating self defence.

The trial judge in her charge did everything defence counsel submitted that she should, except for the express direction which defence counsel wanted about self defence. That issue was dealt with in the charge in a way I will explain.

The trial judge began charging later that day. What she said to the jury about consciousness of guilt closely followed the standard charge in the charge book. As to the lies relied upon, the judge said:

In this case it is only from the alleged lies identified by Mr Horgan about Mr James avoiding Mr Sleiman and about Mr Sleiman not being injured to his knowledge, that you could conclude he was admitting that responsibility.

The trial judge went through each of the lies relied upon, not just reading the particular part of the answer where the two specified alleged lies appeared, but reading the whole of the answer and sometimes other answers as well, in accordance with the submission which had been made to her by defence counsel. In each case, however, she then specified that the only lie relied upon in this context was either avoidance or lack of knowledge of injuries to Mr Sleiman.

When directing the jury as to the way in which they could use the alleged lies she told them that they could use them to prove the acts necessary for the offence and the necessary mental element. She did not tell them that they could rely on the lies as consciousness of guilt in order to negative self defence.

She told the jury the evidence which the prosecution said revealed the two specific assertions to be lies was the evidence of Monica Woods and the medical evidence. She emphasised that no other lies could be used in this way and that other lies were relevant only to credibility.

No exceptions were taken to what her Honour said that afternoon.

The following morning (seventh day of hearing), her Honour raised the possibility that there might be a risk of the jury using consciousness of guilt reasoning in relation to the post-offence conduct and she raised the issue of whether a warning ought to be given. Her Honour decided that she would go away and prepare a draft of what she might say and then return. She did so. The prosecution resisted the suggestion that the trial judge ought to give the jury directions limiting the use which they could make of the evidence of post-offence conduct. Counsel for the defence supported such a direction being given.

After addressing the post-offence conduct, defence counsel referred again to the issue of the alleged consciousness of guilt lies and self defence, and the following interchange occurred:

[DEFENCE COUNSEL]: There’s one further matter which sort of got lost this morning, but I would ask your Honour to make clear to the jury that the consciousness of guilt lies as advanced, and obviously not in those terms, by the Crown go to connect Mr James with the aspects of the crimes as alleged in relation to intent to strike him and intention to cause serious injury.
HER HONOUR: That’s what I told them yesterday. You’ve got the transcript.

Defence counsel said he did not have the transcript and the judge referred him to the fact that he had had a draft of what her Honour proposed to say, and which she believed she had said, in relation to consciousness of guilt. Counsel then said he would look at the transcript and if he had any further concern he would raise it. Nothing further was raised.

The trial judge gave a direction in relation to the post-offence conduct, as defence counsel had submitted that she should. No exceptions were taken.

Ground 2 – consciousness of guilt

I agree with what Priest JA has said about ground 2(a). I would only add that, as a practical matter, it is sometimes impossible to satisfactorily identify and analyse consciousness of guilt issues until the evidence has been heard. Certainly, these issues must be dealt with before final addresses, as this Court explained in R v Ciantar.[53]
[53](2006) 16 VR 26, 51 [82].

What the trial judge directed the jury about consciousness of guilt accorded with the submissions made by defence counsel on every issue. Defence counsel conceded that the particular lies relied upon were capable of constituting consciousness of guilt admissions, other than in relation to negativing self defence. Defence counsel successfully argued that the alleged lies were not capable of negativing self defence in the circumstances here. He submitted that the judge should not confine her directions to the very narrow statements relied upon by the prosecution but that she should set out their full context in the course of the charge. She did so. The judge made it clear to the jury that nothing else could be relied upon in this way, either lies or post-offence conduct.

Defence counsel pursued the consciousness of guilt issues with vigour and persistence and, so far as I can see, complete success.

I do not agree that the consciousness of guilt lies in this case involved ‘circular reasoning’. Circular reasoning in this sense refers to a position where a jury cannot determine that the statements relied on are lies without determining the issue of guilt itself.

In this case the prosecution submitted that much of what Mr James had said in his record of interview was false, but the only lies they relied upon as implied admissions were the statements Mr James had made that he had avoided Mr Sleiman and the statements Mr James had made that he did not know he had injured him. The judge made this clear in her charge. She told them that in terms, and she

repeated it on every occasion when she dealt with the relevant parts of the record of interview.

The jury were able to determine that these particular statements were lies without having first determined what was ultimately at issue in this case. Relevantly, the issue was intention (or knowledge of the probable consequences). As far as these specific lies were concerned, the issue was not whether Monica Woods’ evidence should be accepted in full to the criminal standard but rather whether, having regard to her evidence and the medical evidence, the jury could be satisfied to the criminal standard that Mr James had not avoided Mr Sleiman and that he had not been ignorant of the fact that he had injured him. Those conclusions could have been reached without the jury having to have reached the conclusion that Mr James had deliberately driven into Mr Sleiman intending to cause serious injury (or being aware of that probability). It seems to me that it was open to the jury to conclude that, whatever view one took of the detail of what happened in the car park and of Monica Woods’ evidence in general, it was clear that Mr James did not avoid Mr Sleiman and that he must have known that he had hit him and injured him.

In my view this ground should also be rejected.

I would dismiss the appeal.

I have read in draft the reasons of Maxwell P and I agree with the additional considerations he has set out concerning the significance of decisions by counsel at trial.

PRIEST JA:

Introduction

This appeal against conviction should, in my opinion, be allowed. My reasons follow.

Presentment and grounds of appeal

A Presentment filed against the appellant in the Supreme Court contained two counts. The first was a count of intentionally causing serious injury[54] to Khadr Sleiman (‘KS’); and the second, a count of recklessly causing serious injury[55] to KS. Following a trial occupying eight days, on 8 September 2011 the appellant was convicted on the count of intentionally causing serious injury. He was sentenced on 22 November 2011 to be imprisoned for eight (8) years and six (6) months, with a non-parole period of six (6) years and six (6) months.
[54]Crimes Act 1958, s 16.
[55]Crimes Act 1958, s 17.

On 8 November 2012 a judge of this Court granted the appellant leave to appeal against conviction on the following grounds:

1. A substantial miscarriage of justice was occasioned by the failure to leave to the jury for their consideration the alternatives of:
(a)causing injury intentionally (alternative to causing serious injury intentionally); and
(b)causing injury recklessly (alternative to causing serious injury recklessly).

2. A substantial miscarriage of justice was occasioned by:
(a)the prosecutor’s failure to open or identify in his address those lies which he asserted amounted, if accepted, to implied admissions; and
(b)the trial judge’s having directed the jury that the following alleged lies, as particularised, were capable of evidencing on the part of the appellant a consciousness of his own guilt.

PARTICULARS:
(i) ‘…I just avoided him and kept going’.
(ii)‘No, after he pulled the knife at me, no, I don’t [know what happened to KS]’.
(iii)In answer to an assertion by the informant that he possessed statements attesting that the appellant had driven over the KS: ‘No…If I drove straight over him I would have stopped … I was avoiding him’.

(iv) ‘If I did run over him I would have stopped straight away’.
(v)In answer to the suggestion that the KS had suffered numerous serious injury: ‘What can I say to that? I’m not aware of it’.
(vi)When put to the appellant that he might have been in possession of a handgun: ‘If I had a handgun, why would I avoid him?’.
(vii)‘Yeah…like I said, I didn’t have a handgun … I completely avoided him’.

3.A substantial miscarriage of justice was occasioned by a failure on the part of the trial judge to direct the jury in terms sufficient to prevent its impermissible use of evidence that the appellant was a person of bad character who might have possessed a handgun. In particular, the trial judge erred by failing adequately or properly to direct that:
(a)by the end of the trial, it formed no part of the prosecution case that the appellant had possessed a handgun; and
(b)the jury were not to speculate about the appellant’s character and not to reason that he was the kind of person likely to have committed either of the offences with which he was charged.

Overview

On 26 April 2007 the appellant struck KS with the vehicle he was driving. The defence accepted that as a result KS suffered serious injury.

The prosecution case was that the appellant struck KS with his vehicle with the intention of causing him serious injury; or, alternatively, that the appellant was reckless as to causing KS serious injury. Principally, the prosecution relied upon the evidence of an eye witness, Monica Woods, and the available medical evidence.

It was the defence case that the appellant did not intend to cause KS serious injury by striking him with his vehicle. Alternatively, it was claimed that the appellant acted in self-defence, because he was fearful that KS wanted to try and stab him with a knife. It was put that, at the time of his interview by police, there was no evidence that the appellant knew that KS had been injured. Although the appellant intended to drive the vehicle in the way in which he did, he was under enormous stress and was conscious of avoiding the knife. The defence emphasised that the sequence of events happened very quickly. Moreover, KS had a number of prior convictions for violent offences. The defence argued that KS was a man of bad character, and had demonstrated that he had a tendency to grossly overreact under pressure and behave violently. In the lead up to him being struck his behaviour was irrational.

As will become clear, I agree with the thrust of the first, second and third of the enumerated propositions above, but not the fourth. Even paying due regard to the development of the law concerning the leaving of the alternative of manslaughter on a charge of murder, I can see no reason in logic or principle why the reasoning in Gilbert and Gillard should not apply more widely to charges other than murder. If the evidence raises an alternative verdict as a realistic possibility, so that the jury might convict on it in preference to a more serious principal offence, the interests of justice– subject to qualifications I will discuss – generally dictate that an alternative verdict should be left. In the same way that an accused person cannot be disentitled, by the conduct of his or her counsel, from having a defence left which might result in acquittal or conviction for a lesser offence, an accused person cannot become disentitled from possible conviction for a lesser alternative by the tactics of counsel.

Intermediate appellate Courts in other Australian jurisdictions have also recently grappled with this issue. I think that some of the reasoning to be drawn from those cases has much to commend it.

In R v King[133] the appellant was convicted of armed robbery. It was claimed that he had committed an armed robbery of a shop assistant in a news agency while armed with a screw driver with which he threatened her. The claim that the appellant had a screw driver, or threatened the shop assistant, was the subject of challenge, including in the appellant’s sworn evidence in which he asserted that he was not armed, did not offer any threats to the shop assistant and simply had committed a unarmed ‘snatch and grab’. An alternative verdict of robbery was not left to the jury. The NSW Court of Criminal Appeal (Grove J and Smart AJ; Davidson AJ dissenting) held that a miscarriage of justice had resulted from the alternative verdict of robbery not having been left. Grove J considered that the High Court’s decisions in Gilbert and Gillard ‘clearly establish that where there is on the evidence a viable case of an available verdict of guilty of a lesser offence than that charged, failure to give an appropriate direction can amount to an error of law’.[134] Smart AJ agreed that ‘[t]he principle stated in Gillard is not limited to instances of murder and manslaughter, but applies where a serious offence is charged and there is a lesser alternative offence, the conviction for which would be a viable outcome on the evidence, that is, the evidence is such that a conviction for the lesser alternative offence would represent a rational result’.[135] However, the principle does not operate so as to dictate that a lesser alternative be left ‘where there is no dispute that the full offence charged was committed and the issue is whether the Crown has proved that the defendant committed it’; or ‘where the principal offence is grave and the alternative alleged is comparatively trifling and remote from the real point of the case’.[136] Of significance, Smart AJ thought that a trial judge should leave a lesser offence ‘where conviction on that is a viable outcome even if the accused does not seek that where it is in the interests of justice and in the interests of the accused to do so’; and that ‘[t]his transcends adversarial and tactical considerations’.[137] The state of the evidence is important. Smart AJ emphasised that the lesser alternative should not be left ‘if the evidence in support of it is flimsy or the prospect of a conviction on the lesser offence rather than the major offence is fanciful’.[138]
[133](2004) 59 NSWLR 515.
[134]Ibid 516 [5].
[135]Ibid 534 [110].
[136]Ibid.
[137]Ibid 535 [110].
[138]Ibid 535 [111].

A similar case was Tilley,[139] in which the appellant had been convicted of the offence of aggravated threatening life contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA). The aggravating feature alleged was that the appellant had threatened to use an offensive weapon, a Stanley knife, when he threatened to kill the victim. It was alleged by the prosecution at trial that, following a motor vehicle collision, the appellant left his vehicle and threatened to kill the other driver while producing the knife and gesturing with it against his own throat. At trial the appellant admitted the collision, but denied the threat to kill and possession of a knife, claiming that he was holding a mobile telephone and keys. By a majority, the jury convicted. Neither counsel at trial submitted that the basic offence of threat to kill should be left to the jury, and the judge did not direct on it. The Court (Bleby, Gray and Layton JJ) held that the trial had miscarried as a result of the failure to leave the lesser alternative offence. Following an extensive review of authority, the Court said:[140]

In short, at common law … the following propositions emerge from the case law. Merely because an alternative verdict may theoretically be open or possible in the broadest sense, this is not enough to require an alternative verdict to be left. It must be a ‘reasonably open’ or ‘fairly and practically open’ or a ‘viable rational result’ on the evidence before the jury. The duty to put an alternative verdict lies with the trial judge, regardless of whether or not the prosecution or defence raise the issue. Thirdly, the putting of an alternative verdict to the jury must not result in a miscarriage of justice.

[139]R v Tilley (2009) 105 SASR 306.

[140]Ibid 322 [60].

The NSW Court of Criminal Appeal revisited the issue of alternative verdicts in Blackwell,[141] although the difficulty in that case was not so much that no lesser alternative was left, but rather that an incorrect statutory alternative was. It was held (Beazley JA and James J; Hall J dissenting) that the leaving of the wrong alternative was a denial of procedural fairness, resulting in a miscarriage of justice.[142] However, although the application of Gilbert and Gillard to cases on non-murder/manslaughter was discussed, as I understand the judgments of the majority, it was not an issue that was finally determined.[143]
[141]Blackwell v R (2011) 81 NSWLR 119.
[142]Ibid 131 [65], 135 [84], 141 [21].
[143]Ibid 129–30 [49]–[58], 135 [83].

From this review of authority there appears to be lingering doubt as to the circumstances in which a lesser alternative verdict must be left in cases of non-murder where on the evidence manslaughter is a viable alternative. Since the issue is distinctly presented for determination in this case by the first ground, I think that it is necessary that I should express a concluded view. In my opinion, in cases of non-murder, if a lesser alternative verdict is realistically open[144] on the evidence, then – no matter the forensic decisions of counsel – a trial judge is required to leave the lesser alternative, subject to two qualifications.
[144]One finds this notion expressed in a variety of ways in the cases – ‘reasonably open’, ‘fairly and practically open’, ‘viable rational result’, ‘if the evidence in support of it is flimsy or the prospects of a conviction on the lesser offence rather than the major offence is fanciful’, and so on.

In my opinion the confluence of several aspects of general principle point strongly to that conclusion. The general matters of principle include the following:

(1)Every person charged with a crime has the right to a fair trial (or, at least, a right not to be tried unfairly) according to law.
(2)As a central feature of a fair trial, Pemble requires that the jury receive adequate instruction as to the applicable law, and on the possible use of the relevant facts on any aspect upon which the jury could, in the particular circumstances of the case upon the material before them, find or base a verdict in whole or in part.
(3)Another aspect of a fair trial according to law is that a trial judge must give any direction necessary in the circumstances of the case to avoid a perceptible risk of a miscarriage of justice.
(4)Although an accused person generally is bound by the conduct of his or her trial by counsel, counsel cannot wrongly concede a matter of law to the detriment of his or her client.
(5)Moreover, a trial judge must leave to a jury any defence fairly open on the evidence – whether the defence might result in complete acquittal or conviction for a lesser offence – no matter disavowal of the defence by counsel, and no matter that it might be inconsistent with the manner in which the trial has been conducted.

Beyond those matters of general principle, intermediate appellate courts in other states – in particular, in King and Tilley – have applied the principles derived from Gilbert and Gillard more widely than to cases of murder. Additionally, on one view, s 239 of the Criminal Procedure Act 2009 gives the jury an unqualified right to find an accused guilty of a lesser offence if ‘the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court’. Presumably the jury is only capable of exercising that right if properly instructed by the trial judge. Thus, as earlier observed, in my opinion if a lesser alternative verdict realistically is open on the evidence, a trial judge is required to leave the lesser alternative, subject to two qualifications. A lesser alternative verdict need not be left, first, where there is no dispute that the full offence charged was committed, the only controversy being whether the accused was the one who committed it; and secondly, where the principal offence is serious, and the alternative offence (though theoretically open) is trivial and distant from the real issues in the case.[145]
[145]See also R v Coutts [2006] 1 WLR 2154, [2006] 4 All ER 353, (WLR) 2167, (All ER) 367–8 [24] (Lord Bingham), extracted above, [188].

From my perspective, the only matter of real difficulty is whether counsel can give away the right that his or her client might otherwise enjoy to have a lesser alternative verdict left to the jury. Based on general principle, which I have attempted to distil, I think counsel is incapable of doing so. (This assumes, of course, that the alternative is realistically open, and is subject to the qualifications I have adverted to.)

As I have earlier attempted to demonstrate, I think it plain that a verdict on a lesser alternative was realistically open on the evidence in this case (and the qualifications militating against leaving a lesser alternative were not present). Lesser alternatives not having been left, it follows that there has been a miscarriage of justice. The central question in this case, therefore, is whether there has been a ‘substantial miscarriage of justice’.

For almost a century, until the enactment of the Criminal Procedure Act 2009, the laws governing criminal appeals in Victoria, in conformity with other Australian States and Territories, were based on the common form criminal appeal statutes.[146] A core feature of the common form statutes is the proviso which, following the High Court’s decision in Weiss,[147] proved to be a source of some difficulty for appellate courts. The Criminal Procedure Act introduced a new regime. Section 274 of the Act gives a right to appeal, by leave, against conviction. The manner in which the appeal is to be determined is governed by s 276, which provides:
[146]The most recent manifestation was found in s 568(1) of the Crimes Act 1958.
[147]Weiss v The Queen (2005) 224 CLR 300.

276. Determination of appeal against conviction
(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that –
(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.[148]

[148]Emphasis added.

The effect of s 276 is that the Court must allow the appeal against conviction if the appellant satisfies the Court that ‘as a result of an error or an irregularity in, or in relation to, the trial’, or ‘for any other reason’, there has been a ‘substantial miscarriage of justice’.

Decisions of this Court early in the life of the new appellate regime suggested that resolution of appeals under s 276 was to be approached in much the same way as the former proviso to s 568(1) of the Crimes Act 1958, as interpreted by Weiss, was previously approached.[149] By virtue of the recent decision of the High Court in Baini,[150] however, it is to be hoped that the ghosts of the former proviso to s 568(1) now have been irredeemably exorcised.
[149]Sibanda v R (2011) 213 A Crim R 303, 305 [5] (Nettle JA), 314 [64]–[65] (Sifris AJA).
[150]Baini v The Queen (2012) 293 ALR 472.

Baini provides authoritative guidance as to the manner in which the powers in s 276 are to be exercised. The majority[151] emphasised that whether there had been a ‘substantial miscarriage of justice’ required consideration of the text of s 276.[152] The point was made that s 276 deals exhaustively with an appeal under s 274; so that this Court has no discretion to refuse to allow an appeal if one of the grounds of appeal is established; and likewise no discretion to allow an appeal even if none of the identified grounds of appeal is established.[153] Attention was drawn to the ‘important’ consideration that two of the limbs of s 276 – s 276(1)(b) and s 276(1)(c) – require demonstration of a ‘substantial miscarriage of justice’, but the first limb, s 276 (1)(a), does not.[154] The majority also provided guidance as to what the expression ‘substantial miscarriage of justice’ as used in ss 276(1)(b) and 276(1) (c) conveys.
[151]French CJ, Hayne, Crennan, Keifel and Bell JJ jointly; Gageler J in dissent.
[152]293 ALR 472, 475 [14].
[153]Ibid 476 [17].
[154]Ibid 476 [19].

Section 276 recognises that miscarriages of justice may occur in many circumstances and take many forms.[155] For the purposes of s 276(1)(b) and s 276(1)(c) no single universally applicable formula can be given for what is a ‘substantial miscarriage of justice’.[156] (It will be remembered that s 276(1)(a) refers to cases where the verdict of the jury is unreasonable and cannot be supported having regard to the evidence.[157]) However, a ‘substantial miscarriage of justice’ cannot be confined to those cases where the Court is satisfied that it was not open to the jury to convict the appellant. Paragraphs (b) and (c) of 276(1) ‘must be read as dealing with more than the case where the Court of Appeal is satisfied that the evidence which was properly before the jury did not permit the conclusion that guilt was established beyond reasonable doubt because that sort of case is dealt with by s 276(1)(a)’.[158] Thus a ‘substantial miscarriage of justice’ embraces not only those cases which involve ‘inaccuracy of result’, but also cases of ‘departure from process’, even if it can be shown that the impugned verdict was open (or it cannot be concluded whether it was open).[159]
[155]Ibid 478 [25].
[156]Ibid 478 [26].
[157]This includes those cases where the verdict is unsafe and unsatisfactory in the sense described in M v The Queen (1994) 181 CLR 487 and the cases following it.
[158]293 ALR 472, 478 [27].
[159]Ibid 478‑9 [27].

The majority of the Court in Baini also made it clear that, although demonstration that there has been ‘a substantial miscarriage of justice’ may be affected by the strength of the prosecution case at trial; and that, in some cases, it may be possible the Court to conclude that there has not been a substantial miscarriage of justice because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the appellant was guilty of the crime alleged; several points needed to be made about that possibility.[160] First, given the natural limitations that attend the appellate task, an appellate court will often not be in a position to decide whether the appellant must have been convicted if the error, irregularity or cause of complaint had not occurred.[161] Secondly, if an appellate Court decides that conviction was inevitable, that will not necessarily conclude the issue whether there has been a substantial miscarriage of justice, but it is a matter to be taken into account in determining that issue.[162] Thirdly, the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open (whether the verdict was open being the question presented by s 276(1)(a)). If it is said that a guilty verdict was inevitable (i.e. that a verdict of acquittal was not open), the Court must decide that question on the written record of the trial with its attendant ‘natural limitations’. The fact that the jury returned a verdict of guilty may, in an appropriate case, influence the answer to the question. But, at least in cases where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the appellate court ‘could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt’. If the result of the trial may have been different had the error not been made – because the state of the evidence before the jury would have been different – then there has been a substantial miscarriage of justice. [163]
[160]Ibid 478‑9 [28].
[161]Ibid 479 [29].
[162]Ibid 479 [30].
[163]Ibid 479 [32].

Ultimately, the majority observed:[164]

This understanding of s 276 accommodates fundamental tenets of the criminal justice system in Australia. It recognises that the prescribed mode of trial was trial by jury. It does so by encompassing, within the expression ‘substantial miscarriage of justice’, not only an error which possibly affected the result of the trial but also some departures from trial processes (sufficiently described for present purposes as ‘serious departures), whether or not the impact of the departure in issue can be determined. It also recognises that an accused’s guilt must be established by the prosecution at trial beyond reasonable doubt. It is not to be established by speculation about what a jury, this jury, or a reasonable jury might have done but for the error. Nothing short of satisfaction beyond reasonable doubt will do, and an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a ‘substantial miscarriage of justice’ if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a substantial miscarriage of justice ...

[164]Ibid 480 [33] (emphasis added).

Looking at the conviction in this case in that light, since, as I have already said, I regard the lesser alternative offences of causing simple injury open, I find myself unable to say that conviction on the count of causing serious injury intentionally was inevitable. Presented with a choice, the jury might have failed to convict on the charge on which it did.

In summary, I think lesser alternative verdicts of causing injury were realistically open on the evidence, and should have been left despite defence counsel’s eschewal of that course. Failure to leave the alternatives was an error which resulted in a substantial miscarriage of justice, since it cannot be said that conviction on the first count on the Presentment was inevitable had it not been for the error.

I should add that, were I to be wrong in the views I have expressed as to the forensic decisions of counsel, and his disavowal of the lesser alternatives was indeed a relevant factor to weigh in the balance in deciding whether there had been a substantial miscarriage of justice, I would still allow the appeal. One of the principal bases upon which the appellant sought to resist conviction on the charged offences was his lack of intention to cause serious injury. Faced with a choice between a complete acquittal, or conviction for either of the lesser offences, the jury might well have regarded the alternative of convicting on a lesser offence as more appropriate. In the circumstances of this case, the interests of justice required that the lesser alternatives be left, despite the attitude of counsel.

In my opinion, ground 1 should succeed and the conviction should be quashed. I turn to consider the second ground.

Lies going to consciousness of guilt should not have been left to the jury

In my view, ground 2 should also be upheld.

In opening, the prosecutor asserted that various answers given by the appellant in his record of interview with police were lies. He did not elaborate as to whether they were lies going to consciousness of guilt or mere credit lies.

Unhappily, the status of the alleged lies was left to languish until it arose for discussion towards the end of the prosecution case, part way through the evidence of Detective Maher. Prompted by the discussion, the prosecutor produced a document, ‘Post-offence conduct relied on by the Crown’, which included the alleged lies embraced by the second ground of appeal.

The timing of the prosecutor’s identification of the supposed lies going to consciousness of guilt is to be discouraged. Some years before the trial in this case, in Ciantar,[165] a five member bench of this Court had made it plain that the prosecution ordinarily should identify lies relied upon as going to consciousness of guilt prior to evidence commencing.[166] The Court said:[167]

Preferably, therefore, before the commencement of evidence, and in any event before the commencement of final addresses, the Crown should be required to identify to the judge, in the absence of the jury, particulars of the following:
(a) any evidence of post-offence conduct on which the Crown seeks to rely as evidence of consciousness of guilt;
(b) to what issue the evidence of post-offence conduct as evidence of consciousness of guilt relates; and
(c) for the purposes of each such issue, the evidence in the case of any acts, facts and circumstances (in addition to the post-offence conduct itself) which is said to show that the post-offence conduct demonstrates consciousness of guilt as to that issue.

[165]R v Ciantar (2006) 16 VR 26 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).

[166]I note that cl. 23 of the Jury Directions Bill 2012, now before Parliament, if passed into law, will require the prosecution, at least 28 days before trial, to give notice to the accused of an intention to rely on ‘incriminating conduct’ (which includes lies).

[167]Ibid 51 [82].

Although it would have been preferable for the status of the alleged lies to have been determined well in advance of when it was, no miscarriage of justice flows merely from the timing of the discussion. Lies having been opened by the prosecutor, without elaboration as to whether they went to consciousness of guilt or to credit, it should have been obvious to defence counsel that it was necessary for the prosecution to be made to nail its colours to the mast. Despite having an obligation (as did the prosecutor) to ensure that the trial did not miscarry, defence counsel did not ventilate his concerns about the status of the lies until relatively late in the trial. It would have been open to him to have done so. In any event, the status of the lies was thoroughly ventilated before final addresses. Thus, I do not think, as ground 2(a) asserts, that a miscarriage of justice was occasioned by ‘the prosecutor’s failure to open or identify in his address those lies [which amounted to] implied admissions’.

There is more substance in the complaint embodied in the balance of ground 2 that the identified lies were not capable of amounting to implied admissions, involving (so it was argued) circular reasoning.

The substance of the answers from the record of interview relied upon as implied admissions of guilt were to the effect that the appellant did not strike KS with his vehicle; was not aware that he had struck and injured KS; and that he had tried to avoid KS.

In her charge, the trial judge first instructed the jury that, if satisfied that the appellant had lied, they could use that fact in assessing his credibility. No complaint was made on the appeal about her Honour’s directions on this aspect and, in any event, I read them as being consistent with what is required by Zoneff.[168]
[168]Zoneff v The Queen (2000) 200 CLR 234.

The trial judge then directed the jury that the second way in which a lie can be used is as ‘an unspoken or implied admission by the accused person that they are responsible for a particular crime’. She instructed the jury they could only use a lie that way if satisfied, first, ‘that he told a deliberate lie’; and, secondly, ‘that the only reasonable explanation for him telling that lie was because he believed he had committed a particular crime and he believed that if he told the truth he would be implicated in that crime’. The judge also directed the jury that finding that an accused person had lied ‘is not the same as finding him guilty of that crime’; and that just ‘because he believed the truth would implicate him in a particular crime, that does not mean [the jury] must necessarily find him guilty of that crime’. So far as they went, these directions are unexceptionable,[169] and properly were not the subject of complaint.
[169]Edwards v R (1993) 178 CLR 193, 208, 209, 210–11.

Her Honour also directed the jury that lies ‘would be just one piece of evidence’ that the jury could use in determining whether or not the prosecution had proved ‘the four elements beyond reasonable doubt in relation to the principal crime or the alternative crime’. Taking this passage alone, the jury might have understood that they could use the evidence as bearing upon the four elements of the offences charged as she had described them to the jury: first, that KS suffered serious injury (about which there was no dispute); secondly, that the appellant caused the serious injury (again, this not being in dispute); thirdly, that the appellant had the intention to cause KS a serious injury (or, with respect to the second count, was reckless in the relevant sense); and fourthly, that the appellant acted without lawful justification or excuse, in that he did not act in self‑defence.

The fact of serious injury and its causation having been conceded, however, in my view the alleged lies could only have borne upon the intention to cause serious injury (or the appellant’s foresight of the probability of serious injury being caused), and self-defence. So much finds support from Ciantar, where it was observed:[170]

[I]n a case where only one charged offence is to be left to jury, the Crown may seek to rely on post-offence conduct as evidence of consciousness of guilt for the purposes of one or a number of issues, thus:
(a) the Crown may seek to rely on the post-offence conduct as evidence of        consciousness of guilt of the actus reus; or
(b) the Crown may seek to rely on the post-offence conduct as evidence of        consciousness of guilt to prove intent or mens rea; or
(c) the Crown may seek to rely on the post-offence conduct to negative         possible defences or justifications (for example, self-defence, defensive     homicide, manslaughter, self-defence, duress or sudden extraordinary        emergency); or
(d) the Crown may seek to rely on the post-offence conduct for a        combination of two or more of the foregoing purposes.

[170]R v Ciantar (2006) 16 VR 26, 51 [81].

Ultimately I think that the trial judge left lies to the jury as going to both causation and intention. Thus she instructed the jury: [171]

So the direction that I give you is that you can use those lies to prove that [the appellant] committed the acts of causing serious injury to [KS] that are required for each of those offences, the acts; you can use those lies to prove … the acts for the offences and to prove the necessary mental element … for each crime; in other words, that [the appellant] had the appropriate intention to cause serious injury to [KS] when he committed the principal offence or that he knew his act of hitting [KS] with the ute would probably cause him serious injury if you are dealing with the alternative offence.
The evidence of Ms Woods about how she saw the man in front of the ute and then thrown in the air, and the movements of the vehicle and him being run over, and the medical evidence about the seriousness of [KS’s] injuries is the evidence relied upon by the prosecution as evidence which shows that [the appellant] has lied and therefore implicitly admitted his actions causing serious injury to [KS] and his intention or alternatively his knowledge of the probability of serious injury being caused.

[171]Emphasis added.

There was no dispute at trial that the appellant had in fact caused serious injury to KS. The main issues in the trial were his state of mind at the time serious injury was caused and the possibility of self-defence. Utilising the supposed lies as to causation would have been otiose, since causation was not in issue. Further, using the alleged lies as to the intention to cause serious injury, or as to the foresight of the probability of serious injury being caused, required acceptance by the jury of Monica Woods’ evidence to the criminal standard. Before the jury could conclude beyond reasonable doubt that the appellant had lied about the several matters alleged, the jury would have had to have accepted her evidence, whilst at the same time rejecting other evidence which bore on the circumstances of KS being struck by the appellant’s vehicle. As previously discussed, the jury might have had a reasonable doubt that KS was struck anything other than a glancing blow (or that the appellant’s appreciation was that he had struck other than a glancing blow). In my view, the jury would have been entitled to conclude that KS was accurate when he told the police that the appellant ‘had put the car into reverse and swung the steering wheel so that the front of his car hit me as it reversed’.

Thus there is much to be said for the proposition that the finding that the appellant lied may have involved circular reasoning. As Edwards[172] establishes, consciousness of guilt lies may be used as a complete admission of guilt;[173] as corroboration;[174] or as circumstantial evidence.[175] It is to be remembered that the lies relied upon were, in effect, that the appellant told the police that he did not strike KS with his vehicle; was not aware that he had struck and injured KS; and that he had tried to avoid KS. Monica Woods’ evidence was the key to finding that those assertions were lies, on the basis that, if her evidence were accepted, the appellant had not tried to avoid KS and could not have failed to appreciate that he had struck him. Self evidently, Monica Woods could not corroborate her own evidence; and, in context, I fail to see how it might have contributed to a circumstantial case. Indeed, to find an intention to cause serious injury established (or, for that matter, recklessness), and therefore to conclude that the appellant had lied, the jury would have had to have accepted Monica Woods’ evidence, and to have rejected other evidence in the case. However, the jury could not have used the alleged lies in order to aid in acceptance of her evidence, since to reason that way would have been ‘bootstraps’.[176]
[172]Edwards v R (1993) 178 CLR 193.
[173]Ibid 210.
[174]Ibid 210.
[175]Ibid 210.
[176]R v Laz [1998] 1 VR 453, 466; R v Russo (2004) 11 VR 1, 8 [19]–[20].

In my opinion, there was a real risk that the jury may have been led into illegitimate bootstraps reasoning by the prosecution’s reliance on the supposed lies as going to consciousness of guilt, and their being left to the jury as such. I think, therefore, that ground 2 is made out.

I add this. The prosecution having sought to rely on the appellant’s statements to the police as alleged lies, in my opinion it should have done no more than to rely on them as going only to credit. It is as well to repeat the observations of Winneke P in Russo[177] (citing Edwards):[178]

It must be constantly borne in mind that very few ‘lies’ told by an accused person will amount to implied admissions of guilt; and that those that are must be clearly demonstrated to be untrue and material. Most lies told by an accused person will merely affect his credit, or the credibility of the case which he is advancing.
[177]R v Russo (2004) 11 VR 1, 3–4 [6].
[178]Edwards v R (1993) 178 CLR 193, 209.

Error concerning bad character evidence is not established

Ground 3 is without substance.

Although he did not altogether abandon this ground, counsel for the appellant accepted that on its own it could not bring down the conviction. He was correct in that assessment.

In opening the case the prosecutor told the jury that the reason that the complainant had armed himself with a knife was that previously he had seen the appellant armed with a gun.

A substantial attack was mounted on KS’s credit in the course of cross-examination, including the accuracy of the suggestion that he had seen the appellant at the scene armed with a gun.

Moreover, Detective Maher was cross-examined to demonstrate that the source of the assertions put to the appellant in the record of interview that the appellant was armed with a gun was KS, and that this source was of dubious reliability. Thus, Detective Maher agreed that KS made the allegation to police about the gun at a time when he was in hospital and ‘still very dazed and disorganised in his thoughts’; and that he had been uncertain as to whether the appellant had merely made a gun gesture of some kind or had actually held a pistol.

By the time of his final address, the prosecutor had apparently abandoned any reliance on the claim that the appellant had possessed a gun at the scene. His silence on the matter would have been eloquent, and could only have redounded to the appellant’s benefit. Further, in his final address, defence counsel impugned the fairness of the questions concerning the gun given their source, and he sought to gain forensic benefit from it.

It is unrealistic to think that the jury would not have had an appreciation that the source of the allegation of the appellant’s possession of a gun was KS, and that the defence challenged the credibility and reliability of that source. Given that to be so, I see no need for any direction or warning to the jury not to speculate about the appellant’s character or that he was the kind of person likely to have committed the offences with which he was charged. Indeed, some may think that such a direction might have worked to the detriment of the appellant, by raising the very spectre sought to be avoided.

I am fortified in my view that no direction was necessary by the fact that very experienced defence counsel, imbued with the atmosphere of the trial, sought no direction of the kind contended for in the ground of appeal.

For these reasons, I would not uphold ground 3.

Conclusion

Both ground 1 and ground 2 should succeed. I would allow the appeal, quash the conviction and sentence, and order a retrial.

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16 Causing serious injury intentionally

A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence.
Penalty: Level 3 imprisonment (20 years maximum).

18 Causing injury intentionally or recklessly

A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence.
Penalty: If the injury was caused intentionally –
level 5 imprisonment (10 years maximum);
If the injury was caused recklessly –
level 6 imprisonment (5 years maximum).

[2013] VSCA 55

19 March 2013