James v The Queen

[2013] HCATrans 266

[2013] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M102 of 2013

B e t w e e n -

SAMUEL JAMES

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 NOVEMBER 2013, AT 9.59 AM

Copyright in the High Court of Australia

MR T. KASSIMATIS:   May it please the Court, I appear with my learned friend, MS B.J. FRANJIC, for the appellant.  (instructed by Valos Black & Associates)

MR P.B. KIDD, SC:   May it please the Court, I appear with MR B.L. SONNET for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ:   Yes, Mr Kassimatis.

MR KASSIMATIS:   If the Court pleases.  The first hurdle the appellant must overcome and it is a hurdle that the appellant submits is readily overcome is that there was on the evidence before the jury in the appellant’s trial a view of the facts sufficient to raise a viable case for the lesser alternatives of intentionally causing injury and recklessly causing injury.  A useful summary of the evidence in its entirety was provided by Justice Priest in his judgment in the court below.  That is to be found at appeal book page 647 to 543.

HAYNE J:   Sorry, what page?

MR KASSIMATIS:   Page 647, it commences.

HAYNE J:   Thank you.

MR KASSIMATIS:   In terms of the paragraphs, it commences at paragraph 126 of his Honour’s judgment and concludes at 145.  Your Honours will note in particular the appellant relies upon the summary provided by his Honour at paragraph 130, which is a summary of the cross‑examination of the witness, Monica Woods.  She had given evidence some four years after the incident in‑chief, contrary to the statement she made to police that she had in fact seen the appellant’s car not only strike Mr Sleiman, but also strike and then run over him.

She was taken to those passages in her statement.  She agreed that her memory was better near the time of the incident.  In our respectful submission, that of itself, once the jury had provided to them an evidentiary basis which rendered it less than inevitable that by reason of the collision between the car and Mr Sleiman the appellant was guilty of intentionally causing serious injury, that in turn introduced as viable alternatives the included lesser alternative offences. 

The other passage of that summary that I would ask your Honours to make a note of is paragraph 143 at appeal book 652.  Your Honours may recall a debate between his Honour Justice Whelan and his Honour Justice Priest about whether or not Mr Sleiman had adopted part of the statement he had made to police in cross‑examination, and views may differ about whether he did or he did not, but the important thing to note is that through the informant appellant’s counsel made plain the prior inconsistent statement which Mr Sleiman had claimed he could not remember, thus rendering it admissible, thus going in for the truth of its content.

So once the jury has before it a basis upon which to at least arrive at some doubt about the accuracy of Ms Woods’ evidence and has before it the evidence of the alleged victim – or the victim – that he was struck, not with a blow, not with a car travelling forward but, in fact, while the car was travelling backwards – the front of the car as it moved backwards.  That, in our respectful submission, was sufficient to raise a viable case.  That, of course, is only the first hurdle. 

FRENCH CJ:   This is the “glancing blow” theory.

MR KASSIMATIS:   Well, whether one wants to call it a glancing blow ‑ ‑ ‑

FRENCH CJ:   It is the turning of the car as it reverses.

MR KASSIMATIS:   Indeed.  It may well have been, and probably was, on that scenario, a very forceful blow.  But, in any event, that was evidence that was properly before the jury.

BELL J:   But it does point out one difficulty, does it not?  We are looking at a finding by the jury beyond reasonable doubt that the car was used as a weapon in the sense of used to intentionally inflict injury.

MR KASSIMATIS:   Yes.

BELL J:   Now, how one describes it as a glancing blow or otherwise, it is a discerning judgment when one uses a car as a weapon to intentionally inflict injury on another that the intention stops short of serious infliction of injury.

MR KASSIMATIS:   Sure.

BELL J:   The real issue here, captured by the notion of a glancing blow in reversing, was whether the jury could be satisfied beyond reasonable doubt that the intention was to use the car to inflict injury as distinct from injury being inflicted accidentally in the course of manoeuvring and ‑ ‑ ‑

MR KASSIMATIS:   Indeed, and the fact – I am sorry, your Honour.

BELL J:   The concern of the trial judge in this case when her Honour declined to leave as an alternative the intentional infliction of injury was to ensure the fair trial of your client, that issue not having been live in the trial, the real issue being accident or the intentional infliction of serious injury.

MR KASSIMATIS:   I take issue with none of that.  Perhaps we are at cross purposes, your Honour.  On the one hand, one has the live issues, the case presented by the defence at trial; on the other one has the evidentiary basis upon which it was open to the jury to come to a lesser alternative.

BELL J:   Would it have been open to your client, Mr Kidd, in the ‑ ‑ ‑ 

MR KASSIMATIS:   That is Mr Kidd.

BELL J:   I am sorry, my apologies.  Would it have been open to your client to have complained in the event that her Honour had, at that late stage in the trial, acceded to the prosecution application and left the alternative and your client been convicted of the intentional infliction of serious injury?

MR KASSIMATIS:   At first blush, one is attracted immediately to the notion that, yes, it would.  Some of the authorities might call it a breach of procedural fairness to introduce the alternatives at so late a stage in the trial but the real point, and this is the point picked up by Acting Judge Smart in the Court of Appeal in King, is that one has to look at the question of advantage or prejudice, in this case, in a very real way.  Perhaps how one best does that is to ask whether had the alternatives been left, the lesser alternatives, even at that late stage in the trial, would counsel have run the trial any differently and, with respect, he would not.  So, all that one has achieved by leaving the lesser alternatives is that the jury have had it made available to them, lesser alternatives, which may have made a difference to their verdict.

KEANE J:   But if the lesser offence had been left by the judge, contrary to the wishes of counsel for the accused, and the accused had been convicted of the lesser offence the accused would have had a ground of appeal.

MR KASSIMATIS:   Not a successful one.

KEANE J:   Why not?

MR KASSIMATIS:   Again, one would have needed to scrutinise whether the mere fact that there was a late introduction in the trial necessarily resulted in a substantial miscarriage of justice.

KEANE J:   But the fact that notwithstanding the decision made by counsel not to seek a direction in relation to the availability of the lesser verdict had been overridden by the judge would mean that the case was not run in accordance with the forensic choices of the accused.

MR KASSIMATIS:   That is true, but ‑ ‑ ‑

KEANE J:   The accused would have been deprived of the advantage which he obviously sought by not seeking such a direction.

MR KASSIMATIS:   One has to look at the question of advantage or the issue of advantage in a real, rather than conceptual analytical sense.  In order to make good that ground of appeal, were it raised, it would not have been enough, hypothetically, for defence counsel to have alleged a ground that the trial was not run in accordance with his forensic choices.  The question would have been, and must have been, whether the leaving of the alternative - and that then takes us back to the very crux of this proceeding, whether it was in fact open to her Honour not to leave the lesser alternative.
The real question is ‑ ‑ ‑

HAYNE J:   Well, that brings us back to whether it is adversarial trial or inquisition?

MR KASSIMATIS:   It is, with respect, a long bow to draw to suggest that Gilbert and Gillard are cases in support of an inquisitorial system.

HAYNE J:   No, they are rooted in the law of homicide but that is something to which we are no doubt coming.  For the moment, focusing on the subject of immediate debate, is the judge to instruct the jury about matters which have not been put in issue between the parties?

MR KASSIMATIS:   Yes, that is what we are here to decide.

HAYNE J:   Yes.

MR KASSIMATIS:   We are here to decide that in accordance with Gilbert and Gillard, if it remains good law – and it is not suggested it is not – whether there are good reasons to confine the principles that apply to those cases to the homicide context.  It is a proposition that the appellant very much relies upon, that the anomaly that exists between homicide cases and cases falling short of homicide is not an anomaly, when scrutinised, which ought to continue.

KIEFEL J:   Is it your case that a trial judge is obliged to put every conceivable defence?

MR KASSIMATIS:   No, no.

KIEFEL J:   Where is the line drawn and how is it drawn?

MR KASSIMATIS:   Realistic viable alternatives.

KIEFEL J:   Every realistic viable alternative must be put to the jury?

MR KASSIMATIS:   The short answer is yes.

KIEFEL J:   Will that not often though detract from the true defence that the defence is trying to put forward?

MR KASSIMATIS:   No, your Honour, and this is why.  It is a common feature of homicide trials - take the Victorian example at the moment - that the trial is run on the basis that the gun goes off, it is accidental or it is self‑defence.  That is how it is run and that is the focus of defence counsel’s case.  Nevertheless, the judge as a matter of law must leave to the jury, if it is properly open on the evidence, defensive homicide, before it was abolished provocation.  In my submission, that does not in the slightest detract from how the case was run.  All that does is ensure that the accused person is not disentitled from a possible verdict in circumstances where absent those alternatives it was all or nothing.

It is no different analytically.  There might be a difference conceptually, but there is no difference analytically, we say, between the case of partial and complete defences that are left to juries and the case of lesser viable alternatives that are left to juries.  Sure, when there is an element that attaches to an offence that it be established without lawful excuse as a matter of law the defence has to be left.  But as a matter of principle at common law, every viable lesser defence must be left to the jury.  This is no different, we say.

FRENCH CJ:   So a trial judge could not accede to a submission by counsel for the accused that the trial judge should not leave the lesser verdict to the jury because it might deprive his client of a fair chance of acquittal?

MR KASSIMATIS:   Indeed, and the only question that ‑ ‑ ‑

FRENCH CJ:   So the trial judge in the face of an express submission of that kind is still obliged to leave the lesser verdict to the jury.

MR KASSIMATIS:   Yes, because the forensic choice made by counsel does not necessarily amount to a fair trial on behalf of his client.  Take, for example, the case of a murder trial in which defence counsel does not want left to the jury the manslaughter alternative.  It is what happened in Gillard.  The Crown wanted to leave the lesser alternatives of manslaughter.  Counsel wanted all or nothing.  He made a decision that it was in the interests of his client not to pursue the lesser alternative.  The short answer is if it was properly open on the evidence, this Court found it ought to have been left.

BELL J:   We are not here debating murder and manslaughter, but rather whether the principles developed in the context of the law of homicide have application to other offences.

MR KASSIMATIS:   Yes, and all I am seeking to do, perhaps not as well as I could, is to, by analogy, when it is suggested that defence counsel’s decision not to have a lesser verdict left to the jury is the beginning and the end of what may or may not be in his or her client’s interests, one looks to the homicide scenario and, in our submission, draws some comfort from the fact that, at least within that context, this Court has found that the forensic choices made by counsel are not the beginning and end of what ‑ ‑ ‑

BELL J:   But that is a context informed by history and the peculiar considerations applying to the offence of homicide for which manslaughter has long been recognised to be an alternative verdict that even if the judge is not required to direct on, the judge cannot withhold from the jury’s consideration if the jury inquires about the matter.

MR KASSIMATIS:   There is, in our submission, nothing - perhaps save for the judgment of Justice Kirby - in the reasoning in Gillard, as I say, save for Justice Kirby, that suggests that it is for historical reasons.

HAYNE J:   Well, you need to look, I think, as well to Lavender 222 CLR 67, particularly at 77 to 78, paragraph 25, which is a convenient summary of the relevant history of the law of homicide and why manslaughter has always been an alternative verdict available on indictment for the felony murder.

MR KASSIMATIS:   There is no dispute about that.  I am concentrating more on the Court’s reasoning in Gillard, and in particular ‑ ‑ ‑

HAYNE J:   Well, the Court’s reasoning in Gillard was in part dictated by the holding in Gilbert, and Gillard is following what had been decided by the Court in Gilbert.

MR KASSIMATIS:   Yes.  Can I take the Court to Gilbert?

HAYNE J:   Less than unanimously, dare he add.

MR KASSIMATIS:   Your Honour did not need to tell me.  Can I take the Court to Gilbert v The Queen (2000) 201 CLR 414? I did note, however, your Honour, that they managed to bring you round by the time we got to Gillard.

HAYNE J:   Well, the doctrine of precedent has some role to play in this Court, I thought, Mr Kassimatis. 

MR KASSIMATIS:   Yes. 

HAYNE J:   I will not touch what bringing me around entails; that is a thought not to dwell on.

MR KASSIMATIS:   Only that your Honour perhaps found the reasoning persuasive.  In the judgment of the Chief Justice and Justice Gummow at paragraphs 14 to 17, your Honours will see it commences with a discussion about the days when murder attracted the death penalty, and it concludes at paragraph 17:

The death penalty has gone, but there are other, perhaps equally influential, realties.  This is an age of concern for the victims of violent crime, and their relatives.  To adapt the words of Fullagar J –

in Mraz – I interpolate –

a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them.

FRENCH CJ:   So you say that elevates Gilbert out of the context of the particular history of murder and manslaughter.

MR KASSIMATIS:   Well, that passage is support for that proposition.  It is a useful passage in this case where the victim suffered very bad serious injuries of the kind that might enliven in the jury’s mind, collective mind, a difficult choice in the absence of lesser alternatives about whether to convict or acquit.  We say, very simply, that there is no, or at the very least there is insufficient basis in principle, notwithstanding the historical development of the law of homicide, to continue the distinction between cases where murder is raised and manslaughter is left as an alternative and cases other than homicide.  We say that if the principle is good for one it should be good for all.

To take your Honour Justice Kiefel’s question earlier, the question about, if I can paraphrase, in some of the authorities they refer to a veritable cascade of lesser alternatives which suggests that were the law to develop in the way that we submit to this Court it ought, trials would become unworkable, there will be decisions about what alternatives to leave and what not to leave.  In the vast bulk of cases what alternatives are viable and available on the evidence is obvious.  This is one of them.  The question that ought to have been asked been asked, was it open on the evidence to leave the lesser alternatives, the answer would have been yes.

HAYNE J:   What is the statutory route for the lesser offence being available, alternative verdict?

MR KASSIMATIS:   Your Honour means that the ‑ ‑ ‑

HAYNE J:   The indictment charges the serious form.

MR KASSIMATIS:   It is the Crimes Act, I believe, your Honour.

HAYNE J:   Which provision?  It would help me if I could identify the particular provision.  If it is not to hand come back to it, Mr Kassimatis.

MR KASSIMATIS: Certainly, I will. Certainly, section 239(1) of the Criminal Procedure Act deals with included alternatives.

HAYNE J:   Is this such a case?

MR KASSIMATIS:   Yes.

HAYNE J:   I see.

MR KASSIMATIS:   The intentional and the reckless cause injury alternatives in this case are included alternatives of the more serious offences.  So the power to bring in the verdict arises in 239(1) subject to section 240.

HAYNE J:   Now, the premise for the engagement of 239(1) of the Criminal Procedure Act 2009, see subsection (1), is the jury finding “the accused not guilty of the offence charged”?

MR KASSIMATIS:   Yes.  All that is taken to mean is that if it were open to the jury to find on the lesser alternative a guilty verdict, having excluded the more serious verdict, then the section empowers the jury to do so.

HAYNE J:   The point that I presently pause on is that in homicide the central question is malice and, according to the outcome of that issue, murder or manslaughter, but the felony charged historically as murder was one where the focus was on malice, malice aforethought, you needed no statute to permit the alternative verdict.  In particular there is not, or is there, this same premise for the engagement of the availability of the alternative, namely, finding not guilty of the other offence or is it simply that the jury is charged with the task of determining whether malice aforethought is proved?

MR KASSIMATIS:   Our position is that at common law a jury, provided that there is a sound evidentiary basis, is permitted to bring in a guilty verdict for lesser included offences.

HAYNE J:   At common law?

MR KASSIMATIS:   At common law.

HAYNE J:   You may be right but I need to be shown some authority about that at some point.

MR KASSIMATIS: Yes, your Honour. What we say is that section 239(1) codifies the position which obtained at common law. Indeed, I do not recall – I might be too young – a similar provision being in the Crimes Act before the introduction of the Criminal Procedure Act 2009. Certainly, there are some alternatives which are not included alternatives, for example, intentionally causing serious injury and recklessly causing serious injury where one is not a lesser alternative, an included alternative, of the former. That necessitates an operation of statute to render one an alternative of the other.

BELL J:   If one goes to appeal book 658, paragraph 158, in the judgment of Justice Priest, his Honour there refers to what is called the “‘red pencil’ test” with respect to the determination of whether one offence is available as an alternative to another and in that context his reference is to R v Lillis [1972] 2 QB 236. Now, the test there stated was based on the United Kingdom provision, broadly similar to that now found in the Criminal Procedure Act (Vic).

MR KASSIMATIS:   Yes.

BELL J:   So one still need perhaps some development of the idea that at common law the jury had that power.

MR KASSIMATIS:   I will endeavour to do what I can.  In any event, we say, whether it was available at common law or not - and I cannot think of an authority I have read which does not take for granted that lesser included alternatives are available at law.  That said, each of them may have been relying upon a particular statutory provision.  In any event, it was within her Honour’s power in this case to have left the lesser alternatives and they ought to have been, in our submission, left.  I must say it was the “red pencil” test I was thinking about when I submitted that at common law the power existed, but perhaps I will have to look a little more closely at that.

BELL J:   The challenge in Lillis was to the decision of the trial judge to instruct the jury on the availability of the alternative of which the accused was convicted.  His complaint was that he had been indicted and the issue before the jury had been the count charged in the indictment and that it was that unfairness had been worked by that decision.

MR KASSIMATIS:   It is the scenario Justice Keane put to me earlier.

BELL J:   Indeed.  So just coming back to the point of principle that informs your argument, looking if one does at a level of abstraction that what the law seeks to provide a fair trial to an accused and recognising the tension that inevitably exists, if a trial is run on one basis about a determination at the conclusion of the trial to leave an alternative that has not been in practical terms an issue, recognising that is one tension and on the other hand, you say there is an unfairness in depriving the jury of information respecting all conceivable alternatives available on the evidence ‑ ‑ ‑

MR KASSIMATIS:   Yes.

BELL J:   ‑ ‑ ‑ why is the approach of the Victorian Court of Appeal not a very good resolution to those competing tensions?  The court does not deny that in some circumstances the failure to leave the lesser alternative may be a substantial miscarriage of justice, but it says one looks to the conduct of the trial to determine whether in a given case that is so.  As a point of principle what is wrong with that?

MR KASSIMATIS:   It goes further.  It says one looks at the decisions made or the desires expressed by defence counsel at the trial.  Now, that might be splitting hairs but we say that is a step too far for two reasons.  One is we submit the actuality of that course is the potential to visit upon the accused person an unfairness.  The second is, perhaps more importantly, we say it is inconsistent with Gilbert and Gillard. 

FRENCH CJ:   Your proposition is an unqualified obligation on the trial judge to leave the included alternative to the jury, provided there is some evidence upon which they might reach that lesser verdict.

MR KASSIMATIS:   Our position is an unqualified application of the principles that obtain in Pemble, restated in Gilbert and Gillard, to the non‑homicide context.

FRENCH CJ:   I was just looking for your translation of it, in your own words.  Is what I put to you an inadequate statement then?

MR KASSIMATIS:   With some refinement, if I may, with respect.  If there exists an evidentiary basis for which it may be said that lesser included alternatives are real, are viable, not conceivably open but are real, are viable, and the jury could safely act upon them, then they ought to be left to the jury.

GAGELER J:   There is a statement of principle by Lord Bingham that is extracted in the judgment of Justice Priest at page 671.  Would your formulation depart from that in any significant way?

MR KASSIMATIS:   I am sorry, your Honour.

GAGELER J:   Would your formulation of principle depart from that in any significant way?

MR KASSIMATIS:   No.  With respect, we wholeheartedly adopt Lord Bingham’s - that part of Lord Bingham’s speech.

GAGELER J:   Would you also accept the qualification that appears in the second of the quoted paragraphs at 671?

MR KASSIMATIS:   Thank you, your Honour.

GAGELER J:   About line 40.

MR KASSIMATIS:   Yes.  Let one assume, for the sake of argument, that as a matter of law Gilbert and Gillard ought to apply to cases outside the homicide context.  In our submission, the corollary of acceptance of that proposition is that the failure to leave the lesser alternatives in this case amounted to a substantial miscarriage of justice.  To the extent that my learned friends rely upon the jury’s failure to convict on the reckless alternative, the reckless alternative that was on the indictment, the short answer to that is Gillard is good law for the proposition that once it is accepted that the lesser alternative ought to have been left, decisions about what may or may not have happened based on the jury’s actual verdict are not to the point.

BELL J:   Coming back to the quotation at paragraph 188, appeal book 671, of Lord Bingham in Coutts, a good deal turns on what his Lordship had in mind in the words “alternative verdicts obviously raised by the evidence”.

MR KASSIMATIS:   Yes.

BELL J:   One looks here to the infliction of what were plainly serious injuries by a motor vehicle, the essential issue being in the way the trial was conducted whether that had been intentional or accidental in the context of your client endeavouring to get away from a man who had been menacing him.  It was necessary in the way the matter was run to leave recklessness as an alternative state of mind.  There is, one might have thought, some importance in leaving to the jury – I withdraw that.  The matter that I am raising with you really comes back to this question of whether or not the alternative of the intentional infliction of something less than serious injury was an alternative verdict obviously raised by the evidence.

MR KASSIMATIS:   We say that “obviously” or “obvious” is a synonym for viable, realistically open, real, not remote.

KEANE J:   As opposed to readily apparent?

MR KASSIMATIS:   “Readily apparent”.  I do not have a particular problem ‑ ‑ ‑

KEANE J:   You are happy to accept “readily apparent”?

MR KASSIMATIS:   How does one accept “readily apparent”?

KEANE J:   No, I am saying:  you are happy to accept “readily apparent”?

MR KASSIMATIS:   Insofar as there is no substantive distinction to be drawn between those phrases the issues of nomenclature, with respect, do not get us very far.

BELL J:   Some might think there no small difference between “readily apparent”, “obvious” and “viable”.

MR KASSIMATIS:   Well, insofar as there might be, we say that plainly there was the alternative open.  Once Monica Woods’ evidence could be looked at and scrutinised sufficiently so as to raise a reasonable doubt about the evidence she had given in‑chief, and there was plainly an evidentiary basis for that, then, yes, because then we say the alternative was obvious, the alternative was readily apparent.

BELL J:   The alternative that a person drove a car intending thereby to occasion injury to a person at whom the car was aimed, but forming the discriminating intention not to occasion serious injury?

MR KASSIMATIS:   In the context of retreating from a menacing act, yes.

BELL J:   But retreating from the menacing act really is a distraction in this context.  One is looking at the satisfaction beyond reasonable doubt of an intention to occasion injury by driving a car into a human being.

MR KASSIMATIS:   Yes.  On the scenario advanced by Mr Sleiman in his statement to police the accused could well have struck him deliberately while reversing his car intending to cause injury, but not intending to cause him serious injury, and once one is able to accept on the evidence of Ms Woods that the car was not driven over him, or at least he did not apprehend or appreciate that he had driven the car over him then, yes, we say it was obvious, we say it was readily apparent.

BELL J:   I am sorry, Mr Kassimatis, I just do not understand the significance that you put in your last submission on the circumstance that the jury may have had a doubt about whether he deliberately reversed back over him or went forward over him.  I mean, the starting point for this debate, Mr Kassimatis, is an intention to inflict injury by driving a car into a person.

MR KASSIMATIS:   Or recklessly cause injury.

BELL J:   No, the starting point for this argument, recklessness was left, is we must accept intentional infliction to cause injury to a person by driving a car into that person.

MR KASSIMATIS:   Yes, and one of the scenarios upon which that may have arisen on the evidence was the reversing of the car in circumstances where the accused man knew that he would strike KS and in so doing intended to injure him but fall short of intending to injure him seriously.  If that evidence could be said to be available to the jury in a real sense, then our submission to the Court is that it was readily available, even obvious. 

FRENCH CJ:   What is the underlying concern here?  Is the concern that the verdict that was returned may not have been a true verdict in the sense that the jury may not have been satisfied beyond reasonable doubt that there was an intention to inflict serious injury, or is the concern that the appellant has lost the opportunity for a lesser verdict notwithstanding the jury’s satisfaction of an intention to cause serious injury?

MR KASSIMATIS:   Both.

FRENCH CJ:   So you say the possibility that the verdict that has been delivered is, in a broad sense, perverse or that you have lost the opportunity of a perverse verdict?

MR KASSIMATIS:   No, in the sense that, applying Gillard, had the lesser alternatives been left, they may have made a difference to the jury’s verdict.  That is, just as was the case for Gillard, the fact that the jury true to their oath returned the verdict of guilty on the primary offence was not sufficient to decide the outcome of the appeal.  It almost was in Gilbert, but it was not in Gillard.  By that point it was accepted by this Court that the availability to the jury of the lesser alternative may have impacted upon their decision to return a guilty verdict on the primary charge. 

So, in short, there is no comfort to be drawn as a matter of law, we say, there is no comfort to be drawn from the fact that the jury actually returned a verdict of guilty unintentionally causing serious injury and there is no comfort to be drawn that they did not come to a middle ground, namely the verdict of guilty on the recklessly causing serious injury because neither of those two outcomes affects the problem which is that if they had available to them more options it may have impacted upon their decision making.

We say, with respect, that once one looks at the conceptual basis for leaving to juries any defence which is properly raised on the evidence and the conceptual basis for the proposition that lesser alternatives if available on the evidence ought to be left to juries, the two are relatively indistinguishable, ergo, if the decision in the first transcends the forensic choices of counsel our submission is the availability of lesser alternative offences likewise transcends the forensic choices of counsel. 

In the case of defences the law is developed to a point where there is authority for the proposition that however slight the evidentiary basis might be it ought to be left.  If by any possibility the jury could entertain a reasonable doubt, based on the defence, it ought to be left.  We do not go that far in the case of alternative defences.  We say that if the lesser offences are properly open in the sense that they are viable, readily apparent, then the obligation on the trial judge is to make available those lesser verdicts to the jury just as the obligation on the trial judge would be to make available to the jury lesser offences.  Whereupon on one view of the facts it would be open to a jury to find an accused person guilty of a lesser offence it should be left. 

Another limb of the argument is if the decision about whether to leave lesser alternative offences can properly be categorised or accurately categorised as a decision about a matter of law, and we say it is a matter of law, then counsel cannot concede that question to the detriment of his or her client and we put before the Court R v Stokes & Difford and the passage of Justice Hunt.

BELL J:   What is the passage in R v Stokes & Difford that you are relying on?

MR KASSIMATIS:   Yes, certainly, your Honour.  R v Stokes & Difford (1990) 51 A Crim R 25 at page 32:

The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case –

Then Pemble is cited and a number of other cases -

The judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be made by the accused in relation to some other issue –

Now, that perhaps falls well short of the “readily apparent” characterisation that your Honour Justice Keane put to me earlier, however artificial.  The language is redolent of Chief Justice Dixon’s dicta in Parker v The Queen, that is, by any possibility, if the jury is able to find in the facts a basis for the lesser verdict it ought to be left.  That was a defence.

BELL J:   Parker, again, is in the context of homicide.

MR KASSIMATIS:   Yes, sure. 

HAYNE J:   The difficulty into which we get is identified by the Chief Judge in Stokes, is it not, where in the paragraph at the foot of 32, he points out that the irony of the conclusion that the judge erred was, as his Honour said, “even greater” because if the direction had been given, it would have been likely to weaken the defendant’s case.

MR KASSIMATIS:   It depends upon what one means about “weakening the defence case”.

HAYNE J:   Well, in that case, intoxication – give an intoxication direction as it then stood – and point out to the jury that it is likely to disinhibit ‑ ‑ ‑

MR KASSIMATIS:   Yes, yes, yes.

HAYNE J:   ‑ ‑ ‑ the accused.  Not particularly helpful when the accused is denying the event occurred. 

MR KASSIMATIS:   But that is not this case.

HAYNE J:   I understand that.

MR KASSIMATIS:   It strengthens our position, with respect, that we can take that analysis and apply it mutatis mutandis to this case.  It might be said by some at first blush that leaving the alternatives at this point – and just so the appellant’s case is clear what ought to have happened in this trial is that the lesser alternatives ought to have been before the jury from the outset.  But even if they had been introduced as late as when the prosecutor invited the judge to do so, one can readily see why it might be thought that could be disadvantageous to the accused person, given the wishes of his counsel.  But, properly scrutinised, properly looked at, it would have made no difference to the way the trial was run and it would have only availed the jury of the availability of lesser alternative verdicts rather than give them the choice of all or nothing.

HAYNE J:   A lesser alternative verdict would be available only if they concluded that the charge as laid was not proved.  The case as joined at trial was, jury should not be satisfied beyond reasonable doubt that the accused intended to cause harm, rather than there having been an accident.  So if, on the issues as joined at trial, the jury had formed the conclusion “not satisfied beyond reasonable doubt” the collision was intended rather than accidental.

MR KASSIMATIS:   Then he would have been acquitted, but he would have been acquitted of the alternatives.

HAYNE J:   Yes, and what is the hypothesis then on which you ever get to the lesser included?

MR KASSIMATIS:   It is the answer to Justice Bell’s question earlier.  The hypothesis is simply that by an act of the driving of the vehicle backwards, the accused knowingly, on one view of the facts, struck the victim and therefore intended to cause him injury, but did not intend to cause him serious injury.

BELL J:   But there is a slide there.  You go from “knowingly” to “and thereby intended”.  What one is looking at with the alternative is the formation of an intention to injure.

MR KASSIMATIS:   Sure, but as your Honour was at pains to put to me earlier, we are talking about the weapon in this case being a car.

BELL J:   But the intention to use the car in order to inflict injury, Mr Kassimatis.

MR KASSIMATIS:   If one was to do so using, as his Honour the learned Chief Justice said to me earlier, a glancing blow, then yes, that might be an injury short of serious injury.

BELL J:   So the case that was obvious and that was not left was of what I would characterise as a “discriminating” intention to use the car as a weapon in order to inflict injury, but in such a way as to not inflict the serious injury which otherwise might follow from driving a car into a human being.

MR KASSIMATIS:   To characterise it factually, or in the context of the evidence, it was the case which obviously arose out of the statement made by the victim to police.

KIEFEL J:   Did not the evidence of Dr Cunningham put paid to the notion that there could have been a glancing blow, that is, by reference to the nature of the injuries?

MR KASSIMATIS:   Relying on one witness’ evidence to put paid to another witness’ evidence is, with respect, a matter quintessentially for the jury.

KIEFEL J:   Medical forensic evidence is sometimes quite powerful.

MR KASSIMATIS:   I think Dr Cunningham said it was unlikely that it was a glancing blow.

FRENCH CJ:   This case could have been dealt with by a judge alone?

MR KASSIMATIS:   Not in Victoria.

FRENCH CJ:   That could not happen?  It has to be a jury trial?

MR KASSIMATIS:   I think we are the only State.

FRENCH CJ:   Is that right?

MR KASSIMATIS:   In the case of MBX, which is a decision of the Queensland Court of Appeal recent enough to have considered James v The Queen from the Victorian Court of Appeal, Justice Applegarth commences at paragraph [21] ‑ ‑ ‑

FRENCH CJ:   Page 6, I think.

MR KASSIMATIS:   Thank you, your Honour – commences at [21] a review of the relevant authorities, commencing with Rehavi in Queensland, then looking at the New South Wales cases, and ultimately arriving at James v The Queen, and his Honour, commencing at paragraph [44] on page 12, sets out the facts in James and then in paragraph [45] sets out Justice Priest’s position and then says at paragraph [46]:

There are three reasons why I do not accept the view of Priest JA that a trial judge is obliged to put lesser alternatives, notwithstanding the “calculated abstention” of defence counsel from requesting that they be put.  The first is that the authorities of this Court identify the forensic choices made by defence counsel as a relevant factor.

Well, that ought not trouble this Court, with respect.  The second is the decisions in the Victorian Court of Appeal including R v Nous, and the majority in James do the same, and again, that is what this Court is asked to decide.  The third is that the views of Justice Priest are convincingly countered by the reasons of his Honour Justice Maxwell, the President, in R v James. 

Now, we say that when looked at with a discerning eye and a focus on principle the relevant passages to which Justice Maxwell makes reference do not provide a ready – or at least an answer to the matters raised by Justice Priest.  Justice Maxwell’s judgment commences at appeal book 612, and at 613, line 10, paragraph 5 his Honour the President cites a number of passages from decisions of this Court.  He says:

A convenient starting‑point is the recent decision of the High Court in Patel v The Queen . . . In the joint judgment, French CJ, Hayne, Kiefel and Bell JJ said:

Although the law recognises the possibility that justice may demand exceptions –

Then he continues on italicised at the last portion of that paragraph.  If it were within our power to do so, we would italicise the first and second lines of that paragraph.  We submit that this is an exception of the kind contemplated and we say it is an exception as a matter of law because under Gillard and Gilbert the leaving of the lesser offences is an exception recognised by law to transcend the forensic choices of counsel.

KIEFEL J:   Do you go so far as to say that the decision of counsel here, the tactical choice made, was not a rational tactical decision?

MR KASSIMATIS:   No.  There is nothing to suggest it.

KIEFEL J:   I notice that Justice Applegarth, paragraph 50 in MBX, after reciting the “interests of justice” considerations, comes to the conclusion which I think is consistent with that of Justice McPherson in Willersdorf that a forensic decision will weigh heavily against any decision that the accused was deprived of a chance of acquittal.

MR KASSIMATIS:   That is what we are inviting this Court to depart from, within the confined category of ‑ ‑ ‑

KIEFEL J:   Speaking for myself, I am just finding it a little difficult to know why, on what basis one can say that a rational decision made on the basis of the evidence, which you accept, by counsel is not a very important factor to take into account?

MR KASSIMATIS:   Because by analogy and for the very reasons that it is not taken into account when deciding whether to leave defences or whether to leave alternative verdicts in the murder context, we say the same reasoning applies to the leaving of alternatives outside the homicide context. 

KIEFEL J:   You give no weight to the historical background to the homicide law?

MR KASSIMATIS:   I say that insofar as history avails one of a basis for distinction, it has been overcome.  The reasons that today dictate that lesser offences short of homicide are left to juries are not historically based, they are predicated on principle.

HAYNE J:   And predicated, I think, on statute.  I only got back as far as the 1958 Crimes Act as enacted.  I think that the foundation for the alternative verdict in trial for feloniously wounding or causing GBH was statutory, section 423 of the Act as enacted.

MR KASSIMATIS:   That is the basis for leaving the alternative, but the analytical process one has to get to is that once available on the evidence forensic choices do not matter.

KIEFEL J:   In Willersdorf [2001] QCA 183 at paragraph [19], Justice McPherson, who is well known as a legal historian, said that:

For historical reasons, a person [on] trial for murder has sometimes been given an opportunity to receive a merciful verdict of manslaughter even when strict logic might suggest that such a verdict is not really open.  I do not think that the same attitude should necessarily be taken in relation to the entire criminal calendar of offences.  In my view murder‑manslaughter cases are somewhat special in this regard although the difference may perhaps be more a matter of practice than of principle.

MR KASSIMATIS:   We say the historical basis for the distinction is insufficiently live now to form a proper basis for distinction between homicide and other cases.

HAYNE J:   Well, that historical distinction finds statutory reflection in the 1958 Act again as the consolidated Act, and I think it goes back immediately behind that to the 1957 Act, that in section 6(3) puts the point about homicide as:

Nothing in this Act shall affect the power of the jury upon a charge of murder of a child to return a verdict of manslaughter, or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth.

MR KASSIMATIS:   But that was not a statute before the court, I presume, in neither Gilbert nor Gillard.

HAYNE J:   No, but if you go to Lavender, the judgment to which Chief Justice Gleeson was party, as also Gilbert in which Chief Justice was party, the identification of homicide historically as being an offence where the verdict returned focused on the issue of malice aforethought whether on the charge of homicide usually pleaded as charge of murder, a verdict of guilty of murder or guilty of manslaughter was returned, not as alternatives but as ‑ ‑ ‑

MR KASSIMATIS:   But as a matter of historical reality ‑ ‑ ‑

HAYNE J:   ‑ ‑ ‑ as the verdict on the issue joined on the indictment.

MR KASSIMATIS:   There are two things to say about that; one is, we have already said it, is the passage in Gilbert by Justice Gleeson and Justice Gummow.  Two, this Court is being invited to do away with the practical implication of an historical difference between the murder/manslaughter case and other cases.  Three, we say there is support to be found for doing away with that distinction in the manner in which defences, both partial and complete, are left to juries in criminal trials across the entire criminal calendar and we say conceptually there is no difference, just as a jury is entitled, upon the evidence, to find within the facts it, as the jury finds, the existence of a defence, it should be entitled to find the existence of an alternative verdict, provided there is a sound basis in the evidence for the verdict.

At paragraph 8 of his Honour’s judgment at 614, his Honour makes reference to Nudd and towards the end of that paragraph his Honour cites the passage from this Court:

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 –

Now, that is it.  That is the crux of this proceeding, in our respectful submission, that the case before the Court today falls into the category of carefully controlled qualifications.  Alternatively, that it should fall within the category of carefully controlled qualifications, just as it does in the homicide context and just as those qualifications obtain to leave in partial or whole defences.  If this Court finds that there remains in existence a sound basis for distinguishing homicide from other cases, the appellant all but fails.  We rely upon the line of authority that has been taken up by New South Wales, South Australia and the United Kingdom.

BELL J:   When you say the United Kingdom, you refer to ‑ ‑ ‑

MR KASSIMATIS:   Lord Bingham ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ Lord Bingham in Coutts.

MR KASSIMATIS:   Yes.

BELL J:   Well, Coutts, of course, was a homicide case.

MR KASSIMATIS:   It was.  But, with respect, the dicta is – there is express reference to a distinction between indictable offences and summary offences.  Implicit in that is a recognition, plainly, that his Lordship in his speech was talking about all indictable offences as opposed to summary offences, not the murder/manslaughter context.

BELL J:   Is there a particular passage in his Honour’s reasons that you rely on in that respect?

MR KASSIMATIS:   Yes, your Honour. 

BELL J:   This is Coutts [2006] 1 WLR 2154.

MR KASSIMATIS:   Unfortunately, I have the All England Reports, your Honour.  Do the Weekly Law Reports have paragraph numbers?

BELL J:   Yes.

MR KASSIMATIS:   Paragraph 85.  No, my mistake, I beg your pardon.  Commencing at paragraph 22, his Lordship makes reference to Gillard.  Then at paragraph 23 of his Lordship’s speech he states:

The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment –

that is, in any trial of indictment –

the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support.  I would not extend the rule to summary proceedings –

BELL J:   Yes, I understand.

KIEFEL J:   For the record, Mr Kassimatis, I should correct the reference to Willersdorf.  It was Justice Thomas’ judgment that I was reading from with which Justice McPherson agreed.

MR KASSIMATIS:   Yes, that is right.

KIEFEL J:   Nonetheless, important for that.

MR KASSIMATIS:   I am sure his Honour knows his history too.

KIEFEL J:   Yes.

MR KASSIMATIS:   Can I take the Court, if I may, to R v King (2004) 59 NSWLR 515? That was a murder/manslaughter scenario ‑ no, I beg your pardon.

HAYNE J:   Robbery, armed robbery.

MR KASSIMATIS:   Yes.  It was an armed robbery on a newsagency using a screwdriver.  The issue in the trial was whether there was a threat made and whether the accused man was holding a screwdriver.  At paragraphs 109 to 113 in the judgment of Acting Judge Smart your Honours will see commencing at 109 there is a reference to Gilbert, and then having referenced Gilbert at 110 his Honour applying Gilbert and Gillard sets out a series of propositions which his Honour says are distilled from the relevant authorities.  We, with respect, commend that analysis to this Court.

HAYNE J:   Is the headnote accurate where it puts the point as being whether:

on the view of the facts for which the defence contends an accused could be found guilty of robbery –

not armed robbery?

MR KASSIMATIS:   Yes.  To use your Honour’s own language, I think, in Gillard it is on one view of the facts and perhaps it could be put a view of the facts most favourable to the accused.

HAYNE J:   The point I am trying to draw out is whether it is relevant or important to notice whether the facts which would found conviction of the lesser offence are facts which are even positively asserted by the accused.  There is a burden of proof issue masked by that.

MR KASSIMATIS:   The short answer is no.

HAYNE J:   Right.

MR KASSIMATIS:   The version of facts question is distinct from what the defence case was, how it was put, what evidence the accused might have given, what evidence might have been called upon his or her behalf.

HAYNE J:   You get into burden of proof issues if you start to flip it to what the defendant asserts.

MR KASSIMATIS:   Indeed.  On the evidence at trial I would add most favourably to the accused but that is to put a spin on it that perhaps is not there.  At paragraph 12 – this is directed to your Honour Justice Keane and I think to your Honour Justice Bell and to your Honour Justice Kiefel’s questions about what, if anything, can be made of the fact that had the alternatives been introduced late in the piece during the trial there might have been a foundation for the ground of appeal asserting that there was an unfairness visited upon the accused.  What his Honour says about that is “Sometimes the ‑ ‑ ‑

BELL J:   I am sorry, what paragraph is this?

MR KASSIMATIS:   Paragraph 112 on page 335.

BELL J:   Thank you.

MR KASSIMATIS:  

Sometimes, the argument is advanced that the accused has obtained an advantage where the lesser offence is not left to the jury but that argument is unsound.  Where it is apparent that the accused has been guilty of serious criminal conduct a jury would expect to convict an accused of an offence which reflects such conduct.  The true issue is, of course, whether the guilt of the accused of the serious offence charged has been proved beyond reasonable doubt.

The next passage goes to your Honour Justice Gageler’s question to me earlier –

However, a jury may be reluctant in the circumstances mentioned to acquit an accused or to find him guilty of a comparatively minor offence even if the proofs of one element of the serious major offence are a little less than compelling.

When adverting to the question of “advantage” a realistic view has to be taken of what the evidence establishes.  Theoretical advantages are of little use and can be disregarded.

With respect, without being pejorative about it, the assumption that just because counsel made a particular forensic choice it was almost certainly or even probably in the interests of his or her client is a general proposition which is only as good as the circumstances in which it is exercised.

KEANE J:   No one is suggesting that there was not a realistic view ‑ that the view of counsel for your client in this case was not a realistic one.

MR KASSIMATIS:   Indeed.

KEANE J:   So that that would seem to immediately distinguish the case ‑ ‑ ‑

MR KASSIMATIS:   I do not know about that.

KEANE J:   ‑ ‑ ‑ by reference to what Justice Smart says in paragraph 113.

MR KASSIMATIS:   In my respectful submission, what is being put there is just because one characterises a particular forensic decision as reasonable it does not follow that it was or is to the advantage of the accused person, and when one looks to advantage or looks to whether fairness or an unfairness has been visited upon an accused, one looks at the evidence and whether the late introduction of the alternative offences would have in any way disturbed the running of the trial.

KIEFEL J:   But this is with the advantage of hindsight and when it has gone against the accused.  The proper question, is it not, is whether it would appear to the trial judge to be necessary to take a particular action and to leave the alternative offence given the evidence and decisions which may rationally be taken about the conduct of the defence.

MR KASSIMATIS:   The problem with that is that her Honour was, of course, acting upon the law as it is in Victoria at the moment.  Her Honour may have had a very different view if she were applying Gilbert and Gillard to the facts that are raised in Mr James’ case.  The next case we rely upon is R v Tilley (2009) 105 SASR 306, the joint judgment of Justices Bleby, Gray and Layton. The appellant in that case was found guilty of aggravated threatening life, and the aggravating feature was a threat to use a Stanley knife or a box cutter after a motor vehicle collision.

The appellant denied the threat and denied being in possession of any knife.  His account was that he was holding his mobile phone and his keys.  Neither counsel raised the alternative of threat to kill simpliciter during the course of the trial, so the trial was run on an “all or nothing” basis.  The trial judge gave no direction on the lesser alternative, and notwithstanding that, and notwithstanding the forensic choices of counsel at trial, the Court of Criminal Appeal found that the trial miscarried.  Commencing at paragraph 51, which is at page 130, their Honours undertake an analysis of Gilbert, Gillard and then ‑ ‑ ‑

FRENCH CJ:   I think that is page 318.

MR KASSIMATIS:   Thank you, your Honour.  I beg your pardon, I have opened the wrong case, 318.  Yes, thank you, your Honour.  Commencing with Pemble and the often cited passage by Chief Justice Barwick, then to Coutts and the speech of Lord Bingham, then at paragraph 55, the paragraph commences:

The circumstances in which –

Paragraph 56, there is a passage from R v Benbolt.  Then at 59, their Honours look at the New South Wales authorities.  Over the page onto 321, they set out and approve of the conclusion reached by Acting Judge Smart, and the analysis culminates in paragraph 60 which is as follows, and this is perhaps, your Honour Justice Hayne, where I sourced earlier my submission that the power to leave the alternatives was one recognised at common law:

In short, at common law, taking into account s 57(3) of the Juries Act, 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.

With respect, those phrases, in my respectful submission, should not be viewed as anything other than synonyms for readily apparent – perhaps obvious is a little higher up the chain.

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.

BELL J:   What does that mean in context?  It would seem that in that concluding sentence of paragraph 60 ‑ ‑ ‑

MR KASSIMATIS:   I can offer ‑ ‑ ‑

BELL J:   Yes?

MR KASSIMATIS:   If by leaving an alternative lesser verdict an accused person ends up being convicted of a lesser offence which is either perverse or unsafe that would be a miscarriage of justice.

BELL J:   Well, can you just analyse that a little more closely?  Is that not recognising that in some circumstances to leave an alternative that exists as a rational possibility on the evidence, but that has not been the way the trial has been conducted, may be to work an unfairness to the accused?

MR KASSIMATIS:   That would be inconsistent with the reference to “whatever the decisions or the conduct of counsel”.  Your Honour’s interpretation ‑ ‑ ‑

BELL J:   I am trying to understand how one marries up the two, Mr Kassimatis.  Their Honours are contemplating here that there may be circumstances in which the judge will occasion a miscarriage of justice by leaving an alternative that in law is open.  Now, that proposition seems to me to not sit easily with other passages in ‑ ‑ ‑

MR KASSIMATIS:   In my respectful submission, that is a reference to a situation perhaps where the evidentiary basis for the reasonably open alternative falls short of sufficient evidence to ensure that the verdict is safe.

GAGELER J:   Is it not more likely to be a reference back to the same qualification given by Lord Bingham in Coutts that I drew your attention to previously?  At paragraph 52 of the judgment in Tilley the same passage in Coutts is set out, and Lord Bingham’s qualification really appears to go to circumstances in which raising the alternative verdict at the heel of the hunt would give rise to a problem of procedural fairness given the way in which the trial was being conducted.

MR KASSIMATIS:   Yes, I accept that, with respect.  But the question of procedural fairness must be one about which, once raised, the defence can properly make out.  Let one assume that at the invitation of the prosecutor in this trial – and let us assume that the law was as it is in New South Wales or in South Australia and at the invitation of the prosecutor the judge invited counsel to make submissions about it whether there was on the evidence a viable case for the lesser alternatives.  It turned out that there was, and counsel said, well, hang on ‑ defence counsel said, I am being deprived of procedural fairness because this has been introduced too late.  The onus would need to be on counsel to show how he would have run his trial differently.

BELL J:   But does not that leave it to counsel to be deciding whether, to use Lord Bingham’s expression, he will choose to roll the dice in one way?  If one chooses to conduct a trial along a particular line with a view to an “all or nothing” verdict from the jury, why, if your proposition is right, does one withhold the alternative verdict because it would be unfair in the circumstances of that trial given the forensic choices that have been made, even though as a matter of law it is open, and yet in a case where, as here, you would say, well, there would be no respect in which the trial would have been run differently, so there is no difficulty in applying the principle for which you contend.  Do you see the difference I am teasing out, Mr Kassimatis?

MR KASSIMATIS:   I do, and it is ‑ ‑ ‑

BELL J:   What is a matter of principle, if it is right that the forensic choices should not influence the availability of the alternative?

MR KASSIMATIS:   I think there is a distinction perhaps to be drawn between the forensic choices which are made in the running of a trial and the question raised by your Honour Justice Gageler, which is albeit that the law recognises on one view of the law that forensic choices do not matter if the introduction of the alternatives create a real unfairness because in truth the running of the trial creates a situation where there is a breach of procedural fairness, then in those circumstances – and they would be relatively rare, I submit – there would be a basis not to leave the alternative verdicts.  But by and large, the general proposition to which your Honour put to me a moment ago, and to which Lord Bingham makes reference and to which apparently the South Australian Court of Criminal Appeal makes reference, the broad proposition is that forensic choices do not matter, just like they do not matter when deciding whether defences are left.

All that matters is whether the facts raise a viable case, subject to – and it may not be a very good answer – those rare cases where one turns to look at whether to leave the lesser alternatives because they are readily available on the facts, there is, by reason of the way the trial has been conducted, a procedural defect.

HAYNE J:   Do not the facts of Tilley illustrate that, however expressed, the effect of the rule that you would have us establish or apply would be that subject to exceptions, which may be rare, all included offences must be the subject of separate direction in every trial?

MR KASSIMATIS:   If they are properly founded on the evidence.

HAYNE J:   That is why I say the facts in Tilley may be useful as illustration of the point.  The contest in Tilley was:  Crown case, the accused threatened the other driver and did so whilst holding a Stanley knife against the accused’s throat and gesturing as if to cut his throat.

MR KASSIMATIS:   Yes.

HAYNE J:   Defence case was, yes, there was an accident – I never threatened anyone.

MR KASSIMATIS:   “I certainly was not holding a Stanley knife.”

HAYNE J:   “I was not holding a Stanley knife.  Yes, I own one but I did not have it with me.”  Now, the outcome in Tilley was, according to the Court of Appeal in the Full Court in South Australia, mistrial – retry – at which the jury have to be instructed that they are to consider threat alone as well, also, as aggravated threat.

MR KASSIMATIS:   Yes.

HAYNE J:   Now, that is why I say it seems to me – and correct me if I am wrong – that the rule that you would have us either make or apply is that all included offences must generally be left to the jury separately.

MR KASSIMATIS:   Two things if I may.  Generally, yes, but subject to them being, that is, the lesser offences, being available.

HAYNE J:   But if they are included offences will they not be available unless a no case is established?  The lesser included - if you have a case to go to the jury, will not the lesser included always be available?

MR KASSIMATIS:   I would not mind a couple of minutes to think about that, but I will do so when I am sitting down.  I am not sure that they would be.  This is a good example.  My learned friends would have it that the facts in this case did not raise the lesser alternatives.  Perhaps the answer to your Honour’s question is in the two qualifications which Justice Priest was able to distil from the authorities. 

FRENCH CJ:   He found a “lingering doubt”, I think, did he not, about the state of the authorities?

MR KASSIMATIS:   Commencing at page 681 of the appeal books – yes, paragraph 207 on appeal book 682, the paragraph commencing “Beyond those matters of general principle”.  At paragraph 205 his Honour sets out his concluded view and says that it is “subject to two qualifications”.  Then at appeal book 682, line 44, it commences:

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 –

One can readily see how that – and that may well provide an example to your Honour Justice Bell’s question of me earlier.  Assume for the sake of argument that a trial is run where the only issue is the identity of the perpetrator, and the whole trial is run on whether the accused was there or not.  Then the introduction of lesser alternatives result in a position being taken by defence counsel that, well, hang on, if I knew that these lesser offences were going to be left to the jury, I might have conducted my cross‑examination differently.

BELL J:   Can you explain just what you have in mind?  I am having difficulty understanding that.  If the issue is “I was not there” ‑ ‑ ‑

MR KASSIMATIS:   Well, that is true.  On one view it ought not matter, but if there were lesser alternatives left to a jury and defence counsel could have in cross‑examination, without forgoing attachment to the primary defence, which is that “It was not me”, could have dealt with it, that might be a situation that results in a procedural defect.

BELL J:   But if the principle is that ‑ ‑ ‑

MR KASSIMATIS:   Forensic choice does not matter.

BELL J:   Yes.

MR KASSIMATIS:   Yes, and that is the principle.

BELL J:   Then it is difficult to see the reason for the qualification.

MR KASSIMATIS:   For the qualification.  The second qualification might be an answer to your Honour Justice Hayne’s question, secondly ‑ ‑ ‑

HAYNE J:   The “trivial” alternative.

MR KASSIMATIS:   

where the principal offence is serious, and the alternative offence (though theoretically open) is trivial and distant from the real issue –

it need not be left.  So, perhaps it might be said in this case that common law assault could not be left.  Insofar as it may trouble this Court to develop the principle in a direction that makes the lesser viable alternatives available, to the extent that the Court might be troubled by distracting juries or the veritable cascade of lesser offences, the answer to that question is in the manner in which criminal trials are run every day.  The vast majority of trials will be like this one.  They will be like Tilley, they will be like King.  Armed robbery where there is a robbery alternative, intentionally cause serious injury where there is an intentionally cause injury alternative. 

There are much more complex issues that arise when one looks at the partial defences and complete defences that are left to juries and yet the law mandates that that be so.  If the forensic choices of counsel do not matter in the context of the manner in which we run trials when a defence is reasonably open on the evidence and it does not matter within the context of a murder trial then rhetorically we ask, why should it matter for offences other than murder?

HAYNE J:   Because they are not the issues in the case.  Now, that answer is either good or bad, but that is the answer that is made, is it not, that on murder the issues in the case include the question of malice.  The issues in the case as issue is joined, say, at this trial, did not include this issue of the lesser offence.

MR KASSIMATIS:   But when we leave defences to juries often the defence is never joined between the parties, but we leave that, even if there is a scintilla of evidence in support of the defence, even if the defence has not been relied upon, even if the defence counsel is jumping up and down begging the judge not to leave it, this Court ‑ ‑ ‑

BELL J:   That is certainly true in relation to trials for murder.  Apart from Stokes & Difford can you point to other authority?  I mean, in Stokes & Difford, for example, reference is made as authority for that proposition to which you took us to a Victorian decision in ‑ ‑ ‑

MR KASSIMATIS:   R v Kear.

BELL J:   To the Victorian decision in Lawson v Forsythe [1986] VR 515, but again, that is in the context of leaving self‑defence in murder. Stokes & Difford is the only case you have really taken us to where there has been some explication of this principle in a context other than a homicide case.

MR KASSIMATIS:   Certainly his Honour Justice Priest refers to a number of cases.  The one that springs immediately to memory is R v Kear where the defence was left even though the Court of Appeal concluded that it was positively inconsistent with the manner in which the trial was run.  There is, and because it is recent, Blackwell v The Queen also, which is reported at (2011) 81 NSWLR 119. It is a case which did not really grapple with whether Gilbert and Gillard applied – that is, the facts in the case did not really necessitate grappling with the issue of whether Gilbert and Gillard applied outside the homicide context.

Between paragraphs 49 and 58 the majority, Judge of Appeal Beazley and Justice James, certainly discuss Gilbert and Gillard without countermanding from that position.  Moreover, Justice Hall at paragraph 165 – his Honour dissented on the facts in that case, but his setting out of the propositions in paragraph 165, that is done with approval of what was said in King.  Your Honour Justice Bell asked me about cases other than Difford.  At appeal book 661, commencing at line 10 ‑ ‑ ‑

BELL J:   Yes, the discussion of Kear.

MR KASSIMATIS:   Of Kear, yes, and his Honour thoroughly goes through the judgments, and there is a reference to Stokes & Difford.  Just in case it is said that I am not grasping the nettle, perhaps I can make myself more clear than I have endeavoured to.  This Court is being invited to extend the principles in Gilbert and Gillard to all indictable trials and it does so because, in our respectful submission, whatever historical basis there is for the distinction between murder and lesser offences either no longer is sufficiently apposite, or should no longer be sufficiently apposite.

Two, notwithstanding, that defences are left to juries in a different conceptual context, when one looks to the jury’s task when a defence is left and the jury’s task when a lesser alternative is left, in the former whether on the evidence one cannot find in favour of the accused a defence sufficient to render the verdict either guilty of a lesser offence or acquittal altogether.  In the latter case, the alternative case, whether upon their existing or viable case for the lesser alternative, the jury is able to acquit of the primary charge and find guilt of the secondary charge.  We say, although conceptually there might be a difference because lawful excuse is usually an element of criminal offences, analytically they are identical, and if they are not identical they are insufficiently distinguishable.

Thirdly, we say, that the preponderance of authority from New South Wales, from South Australia and from Coutts is a line of authority that is consistent, and better consistent, with this Court’s approach in Gilbert and Gillard than the Victorian position is.  Additionally, we rely upon – excuse me.  There must, at some point – there must arise a question of doctrine and we say that the manner in which New South Wales and South Australia have developed the law relating to alternatives represents a sounder basis in doctrine.

If the appellant is right in his submission to this Court that there was available, on the evidence, a viable case for each of the two lesser alternatives – and let one assume that he is right about that – and if, by proper application of principle, Gilbert and Gillard is found to apply to non‑homicide cases, then the effect of the decisions in Gilbert and Gillard and the effect of this Court’s decision in Baini v The Queen, construing section 276(1) of the Criminal Procedure Act 2009 is the same. That is, if it was open on the facts to have left the lesser alternative, the fact that the jury convicted – true to their oath – on the primary charge, is no answer to the charge that there has occurred a substantial miscarriage of justice. That is, Gilbert and Gillard is good law for the proposition that if the lesser alternatives ought to have been left, then the verdict was not inevitable, and that is redolent of the language that this Court took up in Baini.

BELL J:   Coming back to questions of principle, the proposition for which you contend accepts that as a consequence it will be necessary for the trial judge from time to time to give directions in law to the jury respecting either defences or included lesser offences that create an air of unreality having regard to the issues that were live at the trial?

MR KASSIMATIS:   No.

BELL J:   Well, I am sorry, I thought you were relying on ‑ ‑ ‑

MR KASSIMATIS:   We certainly rely upon the application of the principles that apply to defences in the alternative scenario, but we do not go so far as to say that lesser offences that create a sense of unreality be left.  In fact, we say the opposite.  We rely – and we put the case no further than his Honour Justice Priest did in the court below ‑ that is, if there is an air of unreality about the lesser offences, if they are trivial compared to a lesser offence which is very serious, then that is good reason not to leave them.  So we do not need to go as far as the jurisprudence that exists on one view in the defence cases, and we do not.

BELL J:   Well, just looking at the way you do present it, it would have been necessary for the judge not only to direct the jury on proof of the offence of intentionally causing serious injury, proof of the elements of recklessly causing serious injury, proof of the elements of intentionally causing injury and proof of recklessly causing injury simpliciter.

MR KASSIMATIS:   Yes, and that would have been done in ‑ ‑ ‑

BELL J:   It would have been no small lesson on the criminal law.

MR KASSIMATIS:   Four lines, it would have been four lines.  If you are not satisfied that he intended to cause serious injury and you are satisfied only that he was intending to cause injury, you can find him guilty of a lesser offence.  The judge went almost that far when she said to them, if you find that he intended only to cause injury and not serious injury, then you must acquit.  If she went to that trouble she could have just as easily gone to the trouble of saying, if you are not satisfied that he intended to cause serious injury, you have the lesser alternative of injury.

BELL J:   And then the explication of the difference between the offence of recklessly occasioning serious injury and recklessly occasioning injury simpliciter.

MR KASSIMATIS:   But, again, recklessness was before the jury.  All they had to have had pointed out to them was that in the case of the lesser alternatives the foresight of probability was of injury rather than serious injury.

KEANE J:   Reckless as to serious injury but not reckless as to injury.

MR KASSIMATIS:   Well, the primary issue is ‑ ‑ ‑

KEANE J:   It is starting to sound a bit like an air of unreality, I think.

MR KASSIMATIS:   Well, there might not have been a case on the facts for reckless cause injury.  It may well have stopped at intentionally cause injury or reckless cause serious injury.  They may have been the two alternatives.  There is nothing about the intentional injury alternative in this case, we submit, that has attached to it an air of unreality because the factual basis for it was in the victim’s statement.

BELL J:   But you have to contend that it was an error not to leave recklessly causing injury simpliciter?

MR KASSIMATIS:   No, I do not, with respect.

BELL J:   Why was that not open for the same reason that you contend that the lesser alternative on intention was, advertence to the possibility of injury but not more?

MR KASSIMATIS:   It probably was but if one were to pause and scrutinise the evidence it may be that that falls into the category about which, as Justice Keane says, there was an air of unreality.  But certainly, given the nature of the car, the fact that the car was used as a weapon, there is nothing unreal about the lesser intentional related alternative.  Unless the Court has any matters.

FRENCH CJ:   Thank you, Mr Kassimatis.

MR KASSIMATIS:   If the Court pleases.

FRENCH CJ:   Mr Kidd.

MR KIDD:   The thrust of my friend’s submission today is that the lesser alternative of intentionally causing injury was obviously raised, was apparent on the evidence, was a real issue, was a rational and viable alternative.  He was represented by an experienced trial counsel and in the course of significant and lengthy discussion with her Honour the trial judge his counsel said this after the charge had commenced - this is at appeal book 571 - perhaps I will read – his counsel is discussing with her Honour what the intention is which is in issue in the trial.  So, appeal book 571, start from line 15:

MR SHEALES:   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.

Of course, it is only serious injury, I interpose:

MR SHEALES:   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.

MR SHEALES:   Yes.

So, the experienced trial counsel was acknowledging what had probably been implicit throughout the running of the trial, that if his client intentionally or deliberately struck the victim, it followed in the context of this case that he must have possessed an intention to cause serious injury.  Further - the discussion continues for several pages and I just want to read one more excerpt and this one commences at the bottom of appeal book 573, line 28.  Her Honour says:

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 –

and I interpose again to say that of course it is serious injury –

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 SHEALES:   I agree with that.

Now, Justice Whelan, in his judgment in the Court of Appeal, having analysed the interchange between defence counsel and her Honour in great detail, concluded, having immediately referred to the passages that I have just taken the Court to, and this is at appeal book 629 at paragraph 62. 

Here defence counsel explicitly accepted (again) –

this is referring to the last passage I took your Honours to –

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.

His Honour goes on to say, and we say this is important, at paragraph 63

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.

Now, we submit that one only needs to refer – and I am going to refer your Honours to three pages of transcript of the evidence which we submit makes it abundantly clear why it was that experienced trial counsel accepted immediately that if this striking was deliberate his client was fixed with an intention to cause serious injury. 

Can I take your Honours to appeal book 113, to the evidence of Monica Woods?  Before I read this evidence I want to recognise that Monica Woods was challenged on an aspect of her evidence.  She gave evidence of two impacts.  There was the first and the initial impact and then there was a running over whilst the victim was on the ground.  I am going to take your Honours to the evidence she gave about the first impact.  This is at appeal book 113.  Mr Horgan, line 9:

You take it from there.  You have got Mr Sleiman?‑‑‑Yes, so he was standing in front of the ute.

Not to the side, not behind, but in front of the ute.

Seeming not to be able to move for some reason you cannot determine?‑‑‑Yes.

Right, go on?‑‑‑And then the ute was, you know, revving the engine and then all of [a] sudden I did see his body get flown a few metres in the air and then the ute’s driven over the top of, on the top of Mr Sleiman and then he’s driven off and turned left on to Rosamond Road.

Can you just show us the course the ute took?‑‑‑So the ute was, it was here, he was backing and forward, backwards and forwards, and then he’s, Mr Sleiman was just maybe a metre in front of the car and then he’s hit him, Mr Sleiman’s flown in the air and then he’s driven over the top of him, gone on to the nature – the naturestrip or footpath.

Now, she was challenged about the running over, the subsequent running over once the victim was on the nature strip.  She gave evidence that after the initial hit he was on the nature strip and he then ran over him.  As my friend pointed out today, and it appears in the written submissions, and we accept it, she had made some prior inconsistent statements with respect to that. 

If I could just paraphrase, in her original statement she talked about the vehicle having initially struck the victim, then the vehicle drove nearby the victim as if the vehicle was alongside the victim, and at the committal hearing she confirmed her evidence that on her account she only saw the vehicle strike the victim once.  But what we say is important is that her account of the initial impact, which was undoubtedly significant, was a frontal impact, that account was never challenged.

I am going to take your Honours to one and a half pages of transcript involving the forensic physician, Dr Cunningham, at appeal book 153.  It commences at line 26:

And what was your opinion?---So, in addressing a number of the questions put to me, my opinion was that Mr Sleiman sustained significant injuries that were potentially life-threatening and he had a combination of bony fractures and internal organ injuries that involved multiple areas of his body, so his head, his chest, his abdomen, his pelvic region and his lower limbs.  And these injuries suggested that they were the result of direct and forceful blunt trauma and in vehicular trauma this would be either the front or the rear of the vehicle impacting with the subject with considerable force in that direction of travel and one of the opinions was that the proposed scenario of the glancing blow resulting in these injuries would be highly unlikely.

Line 9 –

That was your opinion, highly unlikely?---That’s correct ‑

Then from line 10 through to line 29, the doctor postulates the various scenarios that might account for the impact, and she says this –

It’s not possible to differentiate between the type and the overall number of impacts but, what I was able to propose was that there are several scenarios that could be attributed to the injuries in vehicular trauma, so it might be that the subject impacted with the car receiving primary injuries and then was thrown over the bonnet of the car and in that mechanism of trauma received secondary injuries or that the subject received primary injuries from impacting with the car and then received further injuries from one or more further impacts with the car.  Alternatively, the subject may have impacted with the car receiving primary injuries and then received further injuries from one or more impacts while being, lying on the ground, so these would be crush type injuries or the subject was impacted with the car receiving primary injuries and then received further injuries from being thrown to the ground from that initial impact with the car, so then the subsequent injuries would be fall type injuries.

She was not challenged about any of that evidence that I have read to you.  Her evidence that a glancing blow was highly unlikely, not challenged.  No expert was called on behalf of the defence.  The various scenarios postulated by the doctor, which essentially amount to this, two blows – the initial impact of the car, maybe a subsequent impact with the car; the initial impact with the car, maybe being run over by the car; the initial impact of the car and falling on the ground.  Whatever scenario it was, it was two blows.  She was not challenged about any of that evidence.

The cross-examination was designed to establish that the scenario that the two blows comprise, one, the initial impact, and two, the body falling on the ground, was as reasonable as the other scenarios because, of course, the defence case was that the victim was not run over once he was on the ground, and the defence wanted to advance the scenario that he was only struck once by the car, and the second blow could be accounted for by the victim falling on the ground.

The doctor acceded to that proposition, that that scenario was equally likely or equally possible, so the evidence in‑chief of the doctor was never challenged.  Now, if I may – and I am sorry if I am going to take the Court’s time up a little bit with this, but I would like to take the Court to what the defence case was and I am going to run the Court through maybe – I think I have got about seven or eight questions and answers given in the record of interview.  This is at appeal book 361.

FRENCH CJ:   What is the proposition to which you are taking us?

MR KIDD:   The proposition is this, your Honour; that the defence case was that the appellant never intended to strike the victim, that the appellant sought to avoid hitting the victim, that the appellant believed that he did not, in fact, hit the victim.

FRENCH CJ:   That is not in contention here.

MR KIDD:   It is not in contention.

FRENCH CJ:   The principle that is being put against you is that regardless of what the defence case was the judge had an obligation to leave the verdict.

MR KIDD:   I appreciate that, your Honour, but the point that I am making here is that when one looks to see whether or not this was obviously raised, whether it was an apparent defence, one needs to go to (a) the evidence, and (b) what the issue in the trial was.  I have taken your Honours to the evidence.  The evidence itself we contend – and I will come to the glancing blow prior statement of the victim in a minute ‑ but if one looks at the evidence of the impartial eye witness, the expert evidence, that does not bespeak of the possibility of anything less than intention to cause serious injury.

We then look to the defence.  The defence which was based upon the record of interview from beginning to end does not allow for the possibility of anything less than intention to cause serious injury.  Why?  Because the defence was, I did not intend to contact him at all.  He did not advance in the record of interview, actually I saw him coming at me and I wanted to in a very minor and controlled manner nudge him on the side of the car or open my door but my foot slipped and I accidentally – I obviously hit him with much greater force than I anticipated.  That was never a scenario or thesis offered in evidence by the record of interview conducted with the appellant.

Nor, should I add, was that a thesis advanced at the trial by defence counsel.  It was not advanced in any way, whether through cross‑examination of any of the witnesses or through final address.  Right to the end of the case, the defence position was what was contained in the record of interview.  He was speaking the truth.  He sought to avoid him, which is the antithesis of any kind of intention to strike him.  There was, in that sense, no middle ground.

FRENCH CJ:   Well, it was all or nothing.

MR KIDD:   It was an all or nothing.  That is the way the case was conducted and, we submit, that defence counsel conducted the case in that manner because that was the only real option available to him.  He had with him his client’s record of interview which did not allow for that middle ground.  He had in the depositions, and as the trial emerged, evidence of a very significant frontal impact which he never challenged.  So, we submit, this was not a case where defence counsel made an unrealistic choice, if you like, to roll the dice for an all or nothing.  We say he made a realistic decision that that is the only practicable option in terms of the running of the trial.

I would like to take you to the – in that context – the statement that the defence rely upon, which was the prior statement of Mr Sleiman, which was put to him.  This occurs at appeal book 96 through to, effectively, 99.  Having put the statement to him, the defence then ask this question – the defence counsel asked this question at appeal book 96, line 29:

Can I suggest to you that what you say in your statement is a little bit closer to the truth, in that he whacked the car in reverse, trying to reverse away from you because you were trying to stab him through the window?---Excuse the language, sir.  You’re a bigger liar that he is.

What we say about that is this, that at no stage during the course of the trial did the defence rely upon that prior statement of Mr Sleiman to support a thesis that he may have intentionally struck the victim but with something less than an intention to cause serious injury.  Rather, defence counsel sought to get mileage out of that prior statement to support his client’s defence containing the record of interview.  Namely, that his client, at the relevant time, was reversing away from you because he was trying to stab you through the window.

So not only does the evidence, we say, not yield this particular thesis, but if one looks at the conduct of the defence case throughout, it never enlivened it, if it could possibly have been enlivened.  It was never put to Monica Woods, for example, that given that her evidence was that the victim was in front of the vehicle immediately prior to impact.  The import of her evidence was a frontal assault.  It was never put to her that he was driving away from Mr Sleiman when the impact occurred, or that he was reversing, or that it was a glancing blow.

One matter that needs to be also borne in mind when considering whether or not this scenario was realistic in the circumstances of this case is that the Crown obviously had to prove not only serious injury, which was not disputed, it had to prove an intention to cause serious injury, but it needs to be borne in mind that the threshold for serious injury is a relatively modest one.  It is not really serious injury which one has with murder.

The authorities in Victoria, and I have referred to them in our outline, and one of them was R v Welsh & Flynn - it is an unreported decision of 1987 Victorian Supreme Court at 451, that case involved cuts, a swollen inner lip, bruising of both eyes, bruising to the left forearm and a broken tooth and the court considered that the combination of those injuries was sufficient to make out serious injury.

In R v Ferrari [2002] VSCA 186, which we also refer to, the injuries there involve two black eyes with grazes around the top of the head and face. That was sufficient to constitute serious injury in combination. Serious injury was never needed to be anything even approaching permanent injury or life threatening or even prolonged.

Then I come to some comments that your Honour Justice Bell has made today and perhaps this is more of a common sense submission, or a submission made having regard to common sense, and no doubt defence counsel approached it in this way, that the weapon that was being used was a motor vehicle and it was being used against an unprotected pedestrian.

If he did intend, and we need to proceed on this supposition that he did intend to cause some injury and did intend to strike him, then it is difficult to imagine a scenario where someone is using a car as a weapon with the intention of striking someone to cause them some injury where they have anything less than an intent to cause serious injury or at least foresight as to the probability of serious injury. 

One might imagine a scenario executed in a very calm and reasoned and planned manner, driving at negligible speed, but that was not this case.  On the appellant’s account, when he struck the victim he was driving in circumstances of heightened anxiety, fleeing from what he perceived to be a potentially murderous attack.  It is simply fanciful to suggest that if he did intend to strike him that he intended anything less than serious injury.

Had the alternatives been left we submit that it would have been to the detriment or disadvantage of the defence.  It would have detracted from his “all or nothing” defence because no doubt a jury would have reasoned, well, that is just absurd that if he is using the vehicle for striking, particularly in this emergency‑type situation, that he only intended to cause him mere injury would have underlined the credit of his entire defence.

That is even more so when he is advancing self‑defence as a secondary defence which he says he had to act in a particular way because he felt threatened and the jury no doubt would reason, well, if he was reacting in that way under that threat it is simply inherently improbable that he would have given some sort of nuanced consideration or discrimination, to use your Honour Justice Bell’s words, as to how he should hit this person in order to result in minimal impact only.

Now, if I could just turn to the law, we submit that there is obviously some tension between the principles that have been discussed today.  There is obviously the Gilbert and Gillard line of authority involving homicide cases and there is also the line of authority where defences are required to be left, even particularly with something like self‑defence or provocation, even if the evidence is slight, but on the other hand, the development of modern criminal law places great weight on a number of propositions which we say need to be given weight when considering what test ought to be applied when dealing with the leaving of lesser alternatives.

Those propositions are that it is the parties who determine the issues in a particular trial.  If the trial is properly conducted, if it is properly conducted, then the issues will be properly defined and there is no suggestion that this trial was not properly conducted.  Judges should direct juries only on the live issues in the trial which have been identified by the parties.  Juries are assumed to follow directions and to the extent that any exceptions are made for that they need to be confined as a matter of policy because to not confine them is to undermine the entire jury system once we start to accept in a broad range of circumstances that juries may not obey directions.

This is very significant when we are coming to this particular question as to the leaving of alternatives because the rationale for Gilbert and Gillard and the leaving of alternatives in non‑homicide cases, whichever test is applied, is different from the rationale which requires that defences need to be left.  The rationale for defences being left is that the defences qualify the elements the Crown has to prove and the Crown must negate defences and it needs to do so beyond a reasonable doubt.

BELL J:   But it only need negate a defence that is properly available on the evidence.

MR KIDD:   Yes, that is true, your Honour, but there are authorities, for example, with self‑defence where the evidential threshold is quite low but the reason for that is that it qualifies the offence, it is a lawful excuse, and the Crown bears the burden.  But the rationale for the leaving of alternatives is quite different.  The rationale is simply this, that if a jury is faced with someone who is undoubtedly and plainly involved in serious or scandalous criminal conduct and they are given one option, then they may well be driven to infer the requisite intent for that one option rather than see the person walk away scot‑free.

That is the risk of compromise.  It is the fact.  They do not have that middle course, when in circumstances the facts bespeak of their unquestionable involvement in criminal conduct.  That is one of the reasons why Gillard and Gilbert exist with respect to murder and manslaughter because in many of those cases Gilbert and Gillard are good examples which involve complicity, and indeed, Gilbert and Gillard themselves were the non‑actors but they were unquestionably involved in discreditable and disgraceful conduct. 

There was always pressure on a jury in those circumstances not to acquit, even if they have concerns about whether or not the elements for the charged offence are laid out.  It is in those circumstances where they might disobey their oath and convict to ensure that the person gets punished, at least for something.  That is the underlying rationale for when alternative offences need to be left. 

So the question that often has to be asked when looking at these types of cases is whether when one looks at the evidence, the way in which the trial has been conducted by the parties, whether it is obvious and plain or there is a strong case that the offender was involved in some serious wrongdoing but not the one charged, for example, where they make inroads in challenging one of the more serious elements which makes out the greater offence but might leave a strong case for a lesser offence but the lesser offence is not left to the jury. 

Armed robbery and robbery is a good example.  They may say, “I did not commit armed robbery, I did not commit robbery”, but if the trial is conducted on the basis and there is a significant attack on whether or not he or she held a weapon, and it might have also been attacked on the basis that there were no threats or force used in any event, it was just theft, but if it is a two‑tier attack and the first tier is – and it is a significant attack – that there was no weapon, in those circumstances often there is going to be a risk that a jury will reason, “Well, we have real doubt about whether he was armed”, but he certainly committed robbery but robbery is not on the presentment.  He was clearly involved in discreditable criminal conduct.  We cannot let this person escape all punishment, and it is in those circumstances they are pressured into inferring intent when they ordinarily would not.

Then, when one transfers that rationale to this particular case, it did not exist.  On the evidence it was an all or nothing.  There was no nuanced or discriminating assessment made by the evidence or the way in which the case was conducted which allowed for any lesser intent than intent to cause serious injury or nothing because his defence was, “I seek absolution.  I am not guilty or any criminal conduct here”; certainly no criminal conduct involving malice, malice foresight or violent intent.  Maybe, maybe, he was guilty of some driving offence but that is trivial compared to what he was charged with.  His defence was “accident”. 

So there was no risk here of the jury reasoning, well, he was definitely involved in intentionally striking this man with the vehicle but we cannot quite be satisfied, or we have entertained some doubt about whether that intent rose to the level of serious injury, but we are prepared in the circumstances to infer intent, rather than see him escape punishment altogether.  That was not this case.

GAGELER J:   If it were this case, do you accept that the Gilbert/Gillard approach would be applicable?

MR KIDD:   No, but I would accept that if it were this case, then that would be clearly a relevant factor that would be weighed into the mix as to whether or not the interests of justice demanded that the alternative be left.  We submit that the correct approach is the approach adopted in Victoria in Saad and Nous, which takes account of all those factors.  It takes account of the evidence whether a real issue is being raised, with respect to that alternative.  It also takes account of other factors such as whether the defence has relied upon that evidence.  It also takes account of factors such as the forensic decision‑making of trial counsel at the end of the trial, whether or not they seek the alternative to be left or explicitly eschewed it being left.

Ultimately, it is a decision that needs to be made on a case by case basis, and we say that is what recommends the Victorian approach.  The Victorian approach is not absolute.  The Victorian approach does not suggest that where it is reasonably or practically raised that defence counsel’s position at the end of the trial, that it should not be left, is decisive.  The Victorian approach simply is it is to be taken into account, and an overall assessment needs to be made as to whether or not the interests of justice demanded that it be left.  It has never been the position in Victoria that a tactical call made at the end of the trial is decisive.  It will weigh heavily, especially if it is an experienced trial counsel.  It recognises that even if it was a real issue or a live issue that there may be circumstances where experienced trial counsel makes a judgment call that it should not be left, because in the circumstances of the case, the prospects of a full acquittal are seen to be pretty good.

One falls back to those cardinal principles which I opened with, one of which is that trial counsel’s conduct binds the client, subject to certain exceptions, but if one does not see certain exceptions such as incompetency, if the trial issues appear to have been properly conducted, and on the state of the overall evidence and the way in which the trial was conducted it was open to conclude that defence counsel’s decision not to have the lesser alternative left was a rational and reasonable conclusion, then there is no reason to upset the verdict.

BELL J:   The distinction, as I understand it, that Mr Kassimatis relies on is this.  In relation to defences that are open on the evidence, albeit not relied upon or even positively disavowed, and lesser included offences, it is the responsibility of the trial judge at the end of the trial to survey what, as a matter of law, is open, and then to inform the jury of the legal consequences of that range of matters, and in that sense the conduct of trial counsel plays no role, that is as distinct from those areas where trial counsel’s conduct binds the client by a decision not to run character, not to call a particular witness, not to cross‑examine on an topic, something of that character.  Now, that is an understandable distinction to draw.  An issue that it brings into sharp focus is how one reconciles that with Alford v Magee and the notion that the trial judge’s directions on the law are to reflect the real issues in the trial, and that, it seems to me, is where there is a tension.

MR KIDD:   Yes.  Your Honour, we, just as our friends did, accept that there is that tension.

HAYNE J:   Well, is there?  The tension arises if you begin by considering the law.  The primary duty of a trial judge is not only to direct the jury on so much of the law as they need to know to decide the real issues in the case, but the duty of the trial judge is to determine what are the real issues in the case ‑ see Alford v Magee ‑ and the real issues in the case begin factually, do they not?

MR KIDD:   They do. 

HAYNE J:   Thus, at the end of the day, the trial judge has to tell the jury, if you find – as the Crown alleges – beyond reasonable doubt the following facts are established, you must return a verdict of guilt.  If you are not persuaded beyond reasonable doubt of any of those matters, you must return a verdict of not guilty.  The area of present concern is identified by referring to the common case.  If, as the defendant contends, you should not be persuaded beyond reasonable doubt that the accused was holding a screwdriver when demanding money from the person behind the counter, then you cannot be persuaded beyond reasonable doubt of robbery under arms.  You can be persuaded, perhaps, of robbery.  Now, the debate which the appellant wants to agitate is that regardless of factual contentions at trial, in every case there should be a disquisition by the trial judge on all available lesser included offences.

MR KIDD:   Your Honour, if I could answer that by taking your Honours to the decision of R v Nous (2010) 26 VR 96, at 48 and 49 there an analysis was conducted of the Victorian approach, taking into account the decision of Justice Nettle in Saad, and the principles are collated at paragraph 48 which reads:

The following factors bear upon whether, in the interests of justice –

and that is the touchstone test –

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.

While the last of these factors may inform the trial judge’s analysis of the real issues, the absence of such a request will rarely be decisive to the trial judge’s decision.  The responsibility for deciding what are the real issues to be left to the jury resides with the trial judge and not with counsel.  Where the trial judge is of the opinion that there is a real issue as to whether the prosecution has established an element of the more serious offence and, after discussion with counsel, considers that there is a real possibility that the jury could find the accused guilty of the lesser alternative offence, that offence should 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.  Counsel’s duty was to assist the trial judge in discharging the obligation to give the jury such instructions as to the law as are necessary to enable the jury to decide the issues in the case.  The forensic decision to leave the jury with the stark choice between conviction on the more serious offence and complete acquittal will weigh heavily against any submission that the accused was deprived of a chance of acquittal of the more serious offence –

We submit that that approach accommodates the various factors that are at play here.  One is that ultimately it is the trial judge’s responsibility to identify the issues, but the position taken by defence counsel is a matter of influence and is a factor to be weighed into the balance.  That way, that sits comfortably on the one hand with the proposition that it always at the end of the day is the trial judge’s responsibility.  It also sits comfortably with the cardinal principles in the development of the modern criminal law that trial counsel makes forensic decisions and binds his client by them.

FRENCH CJ:   That might be a convenient moment, Mr Kidd.  Can you give us a rough estimate of how long you might be?

MR KIDD:   I will not be long, your Honour.  I will probably be only another 15 or 20 minutes.

FRENCH CJ:   All right.  We will come back at two o’clock.

MR KIDD:   Yes, thank you, your Honour.

FRENCH CJ:   Adjourn till 2.00 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

FRENCH CJ:   Yes, Mr Kidd.

MR KIDD:   Thank you, your Honour.  I just wanted to take the Court to the position in Queensland.  My friend has already referred your Honours to the decision of R v Willersdorf [2001] QCA 183 and then there is also the decision of R v MBX [2013] QCA 214 and it is our submission that the position in Queensland substantially mirrors the position in Victoria.

Now, in Willersdorf, in short in that case, the complainant’s allegation was that after some initial consensual foreplay she asked the appellant to leave.  On her account, against her will, she was then tied up at knifepoint, threatened and subjected to non‑consensual sexual assaults.  He stole money and items and damaged some of her property.  The appellant’s version was that all activity was consensual and that she agreed to being tied up and to having her property taken and damaged and removed as a ruse, if you like, because of a concern that she had of her boyfriend’s impending return.

He was charged and convicted with a number of offences, though not the sexual ones I might add, but he was convicted of robbery with personal violence.  The complaint on appeal was that robbery simpliciter should have been left.  The court held that robbery simpliciter was simply not realistically possible and that was because it just was not possible in the circumstances of the case that his threats, once one accepted the complainant’s account of events, that his threats were unaccompanied by actual personal violence.  Trial counsel had not sought the lesser alternative to be left. 

Now, in Willersdorf, I just wanted to take your Honours to paragraph [20].  Justice Thomas used the phrase whether the “alternative verdict fairly arises for consideration on the whole of the evidence”.  It is in paragraph [20], page 6, it is about line 6:

I conclude that whenever –

Actually I will go back.

Consistently with the authorities including Rehavi, I conclude that whenever an alternative verdict fairly arises for consideration on the whole of the evidence then failure to leave it to the jury prima facie deprives the accused of a chance of acquittal of the principal offence.  A tactical request from defence counsel is a matter that must be taken into account in the overall assessment of miscarriage of justice, but it is not conclusive.  The ultimate duty to ensure fairness rests with the trial judge, and this is not always achieved by acquiescing in the request of defence counsel.

His Honour, further down at paragraph [22] says this:

In the present case the only true alternatives were robbery with personal violence or stealing simpliciter.  These were the alternatives which his Honour left to the jury.  Not only was the present point not raised below, the alternatives of robbery with personal violence or stealing were those for which defence counsel specifically applied.

So defence counsel made a specific decision as to what was to be left and what was not to be left.  We submit that the approach taken by Justice Thomas is consistent with the Victorian approach.  One has regard to a reasonably high threshold, whether it fairly and practically arises on the whole of the evidence, and if it does, and all things being equal, that would point to a miscarriage of justice if the alternative is not left.  But a tactical request from defence counsel is nevertheless a matter that can be taken into account, while it is not conclusive, because the reality is in some circumstances it is at least arguably in the interests of a defendant that he proceed to the jury on an “all or nothing” basis, but each case needs to be considered on its own merits.

A similar approach was adopted in R v MBX which examined this case in James, and my friend has already taken you to a number of those passages and I will not repeat those passages.  In that particular case, at paragraph [10], page 4, it is noted by Justice Applegarth that:

After seeking instructions, the experienced defence counsel who appeared for the appellant at his trial advised the trial judge that the defence position was that only rape should be left to the jury.  Defence counsel noted that he had not cross‑examined the child on the attempt aspect or the penetration aspect.  It was “really whether the act happened or not.”

Now, that particular case involved – the complaint being that the judge erred in not directing the jury that attempted rape or indecent assault took place, or indecent treatment.  It was suggested on appeal that it was open on the evidence as an alternative verdict to the rape because in the trial there was evidence that there had been no bleeding from the anus and it was suggested on the appeal that that afforded a factual basis for perhaps an unsuccessful penetration and if it was an unsuccessful penetration then that may have founded a basis for attempted rape or an indecent assault offence.

Ultimately, Justice Applegarth rejected that and placed some weight on the fact that experienced defence counsel explicitly said that only rape should be left, because that is the way in which he had conducted the case, and he had never actually cross‑examined the complainant about the possibility of unsuccessful attempts at penetration.  Throughout the report, his Honour, at paragraph [36], endorses the Queensland approach:

The Queensland authorities cast the duty to leave an alternative verdict to a jury if it “fairly” arises for consideration on the whole of the evidence.

He surveys the various authorities of different jurisdictions, and at paragraph [48] he refers to the test stated in Willersdorf, to which I have just taken your Honours.  He makes this point:

The test stated in R v Willersdorf and other Queensland authorities of asking whether an alternative verdict “fairly arises for consideration on the whole of the evidence”, may be thought to comprehend the four factors identified in Nous.

They are the four factors to which I took your Honours immediately before the luncheon break, which include not just an assessment of the evidence, the conduct of the defence case, whether they relied upon the evidence said to support the lesser alternative verdict and it also allows for forensic decision making.  His Honour nevertheless goes on to note, consistently with Willersdorf, in paragraph [49] midway through the paragraph, that the –

alternative, lesser offence that is fairly open on the evidence, may oblige a judge to leave that alternative verdict despite a request by defence counsel that it not be left –

and his Honour goes on at paragraph [50] in the second sentence to state –

Still, a forensic decision to leave the jury with “a stark choice between conviction on the more serious offence and complete acquittal will weigh heavily against any submission that the accused was deprived of a chance of acquittal of the more serious offence because the opportunity of a conviction on the lesser offence was not left to the jury.”

Then, if I can now take your Honour to a decision of this Court, R v Keenan (2009) 236 CLR 397 to which reference has been made in the written submissions. In brief, it is a long judgment and the judgment really focused on an issue of common purpose under the Code in Queensland, and the issue concerning the leaving of the lesser verdict was, we would accept, not the main issue of the case.

In brief the facts were that there was a beating involving grievous bodily harm.  It was said that the respondent had been involved in beating a man named Coffey and he had said to his niece that he was going to beat Coffey’s head in, or words to that effect.  The Crown relied upon the respondent’s assertion to the niece that he intended to beat Coffey’s skull in to support the case of grievous bodily harm with intent. 

It was said on appeal that grievous bodily harm simpliciter should have been left and your Honour Justice Kiefel, who dealt with this issue of the alternative charge, and this is at paragraphs 137 to 139, concluded that the justice of the case did not require that the alternative be left.  In paragraph 137, your Honour Justice Kiefel distinguished Rehavi.  In the third sentence it is said:

In that case the evidence of an intention to assault was equivocal –

that is in the case of Rehavi –

but the lesser charge was not put to the jury.  The Court considered that there was a real risk that the jury, being persuaded that the appellant had inflicted serious injury, would infer intent rather than acquit him.

If I could just interpose there, we point to that in support of the thrust of the argument that I made before lunch, that the rationale behind the principle of leaving alternative offences is the risk that juries may be compromised into convicting rather than allowing someone to escape punishment altogether.  Going on at paragraph 138, it reads:

A trial judge’s duty to ensure a fair trial does not mean that the lesser charge must be left to a jury in every case.  It is a question of what justice to the accused requires.  Putting the lesser charge to a jury might jeopardise the accused’s chance of a complete acquittal in some cases.

That is where we submit a forensic position taken by the accused at the end of a trial can have some relevance.  It will not necessarily answer the complaint of a miscarriage but it must be weighed into the mix.  At paragraph 139, Justice Kiefel goes on:

It could not be said that the evidence of intention was weak in the present case, having regard to the threats made by the respondent.  The defence strategy was to suggest to the respondent’s niece that they were not said in such a way, or in a context, which conveyed that they were made seriously.  If the jury had accepted this explanation, the respondent may have been acquitted altogether, whereas he may well have been convicted of the lesser charge.  The fact that the respondent’s counsel did not seek to have the lesser charge put to the jury, confirms that a forensic advantage was sought by its omission.  No miscarriage of justice can be said to have resulted.

At footnote (176) paragraph [20] from Willersdorf is cited which is the paragraph that I read to your Honours a few moments ago concerning that question as to whether or not it “fairly arises for consideration on the whole of the evidence” in the case and that is the paragraph which also talks about forensic decision making by counsel being a relevant factor, though not a decisive one.

We submit that there is no reason to – I should add that the other members of the court concurred with her Honour.  Her Honour was the only one that dealt explicitly with this particular issue as to the leaving of the alternative verdicts.  We submit that the approach taken in Keenan is consistent with the approach taken by the Queensland authorities and also by the Victorian authorities and it is our submission that there would be no reason for this Court to depart from that approach.

Finally, can I say this by way of some concluding remarks, in the course of the submissions by my friend today there is an underlying submission that there is a significant difference in the approaches taken by some of the jurisdictions, in particular South Australia and New South Wales on the one hand and arguably the United Kingdom with Coutts and on the other hand the approach taken by the Victorian line of authority in the Queensland case and we would also contend Keenan in this Court.

It is our submission that the difference is not as stark as is made out.  Cases like King and Tilley, had they occurred in Victoria it is very likely that the result would be exactly the same.  When one reads King and Tilley those cases involved findings by the court that the alternatives were directly and obviously raised and were significant issues in the trial and at the risk of compromise, we submit, in each of those cases were significant so it is very likely that the outcome would have been the same whatever course defence counsel might have taken at the end of those cases.  Unless your Honours have any questions, they complete my submissions.

FRENCH CJ:   Yes, thank you.  Yes, in reply.

MR KASSIMATIS:   Insofar as my learned friends rely upon the manner in which the trial was run, that is forensically, in order to make out the submission or the assertion that there was not a viable case on the facts it is submitted the submissions and contentions made by my learned friends are not to the point.  How the trial was run and what issues counsel chose to make live is a very different question altogether to what offences were realistically or rationally open on the evidence.

So it matters not what defence counsel thought when asked about the state of the evidence, just as it perhaps matters not what the prosecutor thought when, at appeal book 586 and 587, following a direction by her Honour to the jury, a redirection about the difference between “specific intent” and “recklessness”, the prosecutor said:

Your Honour, the other thing is, because there has now been a further direction on this particular point, and we have now spoken about – Your Honour’s taken the jury directly to foreseeing the probability of serious injury and intentionally causing serious injury, it’s a bit late in the day, but of course there is the alternative that the jury is always capable of finding in charges of this sort, of foreseeing, intending injury as an alternative to intending serious injury.

Her Honour says, no, look at his ankle, it is obviously a serious injury.  Prosecutor draws the distinction, which is the distinction which the appellant relies upon:

No, no, I do not mean that, Your Honour, but as we have been speaking of the two intentions, the first intention is to cause the act, the second intention is to cause the serious injury.  Your Honour has highlighted that he must intend to cause the serious injury.  If they thought he was intending to cause injury, but didn’t think he was intending to cause serious injury ‑ ‑ ‑

and then it goes on.  It is, with respect, in our submission, uncontroversial that an invitation made by the prosecutor to the judge in those circumstances was done bona fide, that is, the invitation was made upon the basis that there was available to the judge a proper evidentiary foundation for the invitation to be accepted.

HAYNE J:   Can you articulate briefly how the judge might have put that to the jury in the form, presumably, if you find that the accused was driving the vehicle that struck the victim and that as a result the victim suffered injury which you may conclude was serious injury, but you are not satisfied beyond reasonable doubt, what?

MR KASSIMATIS:   That he intended to cause serious injury.  You have available to you the alternative that notwithstanding the fact that he suffered actually – actually suffered serious injury, he intended only injury.

HAYNE J:   Well, tying it rather more closely to the facts, but you were not satisfied that he deliberately drove the car at the victim?

MR KASSIMATIS:   No.

HAYNE J:   A bit hard?

MR KASSIMATIS:   On one view of the facts, if you are not satisfied that there was a deliberate front‑on collision between the car and the victim and you accepted on the facts that the victim was at the driver’s window, perhaps attacking the appellant with a knife, perhaps not, and accepted that he in fact did intentionally strike the victim while reversing his car backwards, you may not be satisfied that he intended to cause serious injury, but satisfied that he intended to cause injury.

HAYNE J:   So the proposition you would have to put to the jury is that if you find that he intended to use his car to strike the victim, he may nonetheless not be shown beyond reasonable doubt to have intended to cause serious injury.

MR KASSIMATIS:   Outside of the context of a front‑on collision, yes.

HAYNE J:   So he intends what, the “glancing blow” thesis, is it?

MR KASSIMATIS:   Yes.

HAYNE J:   But intendedly glancingly hitting him?

MR KASSIMATIS:   Intending in the sense that he manoeuvres the car in such a way as to know that he will strike the victim, but in doing so, intends no more than to injure him by making his way out of there.

BELL J:   But the intent is an intent to injure.  Put everything else to one side ‑ ‑ ‑

MR KASSIMATIS:   But it needs to be in context, with respect.

BELL J:   No doubt in context with the facts, Mr Kassimatis, but one is looking at an intention to cause a result.  We are not dealing with whether or not his conduct was voluntary in driving the vehicle ‑ ‑ ‑

MR KASSIMATIS:   No, but we are talking about, with respect, whether you can attach culpability to his deliberate actions.  His deliberate action may be no more than the deliberate use of the car to manoeuvre in such a way with knowledge that it will strike the accused.  The jury may then find within that factual matrix an intention to cause injury or recklessness as to injury.

BELL J:   The jury could not find him guilty on the lesser included offence unless satisfied beyond reasonable doubt – not just that his conduct in driving the vehicle involved deliberate action on his part, but that he intended, by that action, to produce a result, that result being to injure Mr Sleiman, albeit, they were not satisfied the intention was to cause serious injury.

MR KASSIMATIS:   Is it not the same, your Honour – I ask, rhetorically – I am not here for the Court to answer my interrogatories – but is it not the same, does it not amount to the same to say that he deliberately drove his car in a manner that established beyond reasonable doubt, knowledge on his part that by doing so, he would cause injury.

BELL J:   Intent to injure involves a specific intent.  It is not the specific intent to cause serious injury but it is, nonetheless, an intent to injure, is it not?

MR KASSIMATIS:   My respectful submission is that to drive your car deliberately in such a way and by thereby knowing that in doing so you will cause injury that is enough to form the specific intent.  On the hypothesis that defence counsel at trial cross‑examined into the evidentiary matrix, there was an hypothesis that involved the deliberate driving of the car which the jury could have used to attach actual knowledge to the appellant that he would strike the car and cause him injury, if that was available to them and they were able to thereby infer an intention to cause injury then that was a proper basis for the jury to have done so.

BELL J:   The same process of inferential reasoning is available on either factual scenario.  It is whether you infer from the conduct that there was an intention, as distinct from recklessness, to produce a result.  Using a motor vehicle to strike another human being, the difference is between injury and serious injury, which in the way Mr Kidd has put it, is something not as serious as really serious injury or grievous bodily harm.  You accept that?

MR KASSIMATIS:   Yes.  But, my learned friend focused on one scenario and one scenario only and that was the deliberate driving of the car head‑on hitting the victim squarely on that basis, and that was not the beginning and the end of the evidentiary basis upon which this jury could have found the lesser alternatives.  In fact, my learned friend repeatedly spoke about the real issues, the live issues at trial.  This may well have been a live issue had the judge turned her mind to it.

BELL J:   The live issue from the accused’s point of view was on the “glancing blow” approach that the jury might have entertained a doubt as to the formation of an intention or as to the requisite mental state for recklessness and accepted that what had occurred was that in the panic of the situation reversing from a dangerous attack he had hit Mr Sleiman without intention and without advertence.

MR KASSIMATIS:   But that cannot, with respect ‑ ‑ ‑

BELL J:   The point that I am raising with you is the lively concern that the trial judge had to ensure fairness to your client by not blurring that opportunity for him to be acquitted.

MR KASSIMATIS:   Sure, and on the Victorian state of the law as it was, and as it is, as a trial judge in the Supreme Court that was the proper approach to take by her Honour.  What we say about that is that – and I do not enjoy saying this as a proud Victorian, but the Victorian approach and the Queensland approach, at the risk of attracting the ire of at least two members of the Court ‑ ‑ ‑

HAYNE J:   Some of us were born there.  Beware, Mr Kassimatis.

MR KASSIMATIS:   ‑ ‑ ‑ is wrong, and it is wrong because as a matter of law and precedent, it does not pay due regard to Gilbert and Gillard and to the application of general principles for which those authorities stand.  My learned friend also made the point that had Tilley been decided in Victoria, the same result would have occurred.  Tilley was a case at the trial of which neither end of the Bar table made mention of the alternative defence.

It was, to use the phrase that is often used today, it was no live issue in the trial that there was a lesser alternative available.  It was a non‑issue, but applying the law, as the Court of Criminal Appeal did, the end result was very different to what it would have been had it properly been decided in Victoria.

KEANE J:   Well, that is not quite right, is it?  As is apparent from paragraph 71 at the end of the judgment in Tilley, what the Court of Criminal Appeal said was that it was a central issue at the trial as to whether

or not the accused was armed with a knife or was simply holding his car keys.  Now, that was a central issue on which the evidentiary case of each party was directly opposed.  If at the end of the trial in Tilley’s Case, notwithstanding the supine position taken by counsel on each side, if at the end of the trial, before the jury had given its verdict, someone had been able to say has there been a fair trial here given that the jury has not been alerted to the circumstance that it is entitled to find that the accused was not armed ‑ ‑ ‑

MR KASSIMATIS:   Defence counsel then said, not interested in the lesser alternative.  It is all or nothing.

KEANE J:   Well, if that had happened ‑ ‑ ‑

MR KASSIMATIS:   Great weight would have been given to that ‑ ‑ ‑

KEANE J:   Why would it not be possible to say at that point, before the jury actually gives it verdict, there has been a fair trial?

MR KASSIMATIS:   In this case, perhaps not as glaringly obvious as in the case of Tilley, it was a live issue whether the victim was struck head‑on or by way of a glancing blow when he was attacking the accused with a knife through the driver’s side window.

KEANE J:   Even though the doctor was not challenged on his evidence ‑ ‑ ‑

MR KASSIMATIS:   Her – we do not want to get into trouble, your Honour.

KEANE J:   Sorry, her, Dr Cunningham.  Dr Cunningham was not challenged on her evidence that the injuries were inflicted by a forward motion of the motor vehicle.

MR KASSIMATIS:   It is a jury question, with respect.  If there is a viable case for it on the evidence then it is for the jury to decide.  Those are the matters.

FRENCH CJ:   Thank you very much.  The Court will reserve its decision.  The Court adjourns until 9.30 tomorrow morning in Sydney and 9.30 tomorrow morning in Melbourne.

AT 2.31 PM THE MATTER WAS ADJOURNED