R v Adam Thomas Orlowsky

[2008] NSWDC 368

CITATION:	R v Adam Thomas ORLOWSKY [2008] NSWDC 368
JUDGMENT DATE:	13 August 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The alternative will not be left to the jury.
CATCHWORDS:	CRIMINAL LAW - practice when plea of not guilty to first count and guilty to second count on indictment - divergence in practice between Australian states and England - alternative of attempt not opened - whether to leave to jury
CASES CITED:	DPP v Collins [2004] VSCA 179 Regina v Broadbent [1964] VR 733 Regina v Cole [1965] 2 QB 388
TEXTS CITED:	The Criminal Trials Bench Book
PARTIES:	Regina Adam Thomas Orlowsky
FILE NUMBER(S):	2007/61/0039
COUNSEL:	Mr Shaw Mr Allen (defence)
SOLICITORS:	Director of Public Prosecutions

JUDGMENT

1. I am going to deliver judgment now on two matters raised. The first matter is this. The indictment charges an aggravated sexual assault and charges, in the alternative as count 2, an assault occasioning actual bodily harm. When he was arraigned Mr Orlowsky pleaded not guilty to count 1, the aggravated sexual assault, but guilty to count 2, the assault occasioning actual bodily harm.

2. At the commencement of the trial, the Crown Prosecutor Mr Shaw indicated that the Crown did not accept the plea of guilty to the second count. He indicated that it followed that the second count was therefore at large and before the jury. I accepted that proposition and the jury was accordingly sworn to try both matters.

3. On closer examination of this point at the conclusion of the Crown case, it now appears that there is a divergence of practice between some states in Australia and between some states in Australia and England. The Criminal Trial Courts Bench Book (Bench Book), published by the Judicial Commission of NSW, says that the practice in such a case should be that which is followed in England, namely the only count which goes to the jury is the count in respect of which there has been a plea of not guilty. The second count is dealt with in the following way. If there is an acquittal on the first count then the court can proceed to convict the accused on his admission on his plea and sentence him on the second count. If there is a conviction of the first count then the second count should lie on the court file.

4. As I said that practice, referred to in Regina v Cole [1965] 2 QB 388, a decision of the Court of Criminal Appeal, is the subject of approval in the Bench Book.

5. However, a different practice exists in Victoria. That practice is outlined in two authorities referred to me by Mr Shaw. The first is Regina v Broadbent [1964] VR 733, a decision of the Full Court of the Supreme Court of Victoria. The second is an unreported judgment of the Victorian Court of Appeal in DPP v Collins [2004] VSCA 179. In a judgment in which the Chief Justice and Ormiston J agreed, the President of the Court of Appeal pointed out the differences in practice between Victoria and England and between Victoria and South Australia. His Honour does not make any reference to the practice in New South Wales.

6. The practice in Victoria in circumstances which have developed in this case is that described by the Full Court in Broadbent and referred to in Collins in a judgment in which Hudson and Adam JJ agreed. Sir Norman O’Bryan said that the “most convenient way to deal with the matter is to allow the whole trial to go forward, that is, the trial on both counts.” His Honour observed that the jury can be told that it can use the admission of the plea of guilty against an accused when considering the proper verdict on the second count. His Honour said that if the court “does otherwise and withdraws the lesser charge from the jury and proceeds only with the major offence, it might be supposed that the court had in some way accepted the plea of guilty, and so afforded the accused an answer by way of autrefois convict to the major charge.”

7. There does seem to me to be a difference in practice amongst these various jurisdictions. Mr Allen who appears for the accused in this trial, I think endorsed by Mr Shaw, informs me that the practice in his experience in the District Court is that both charges are at large before the jury. Insofar as there is a difference in practice, it seems to me that some weight must be attached to the fact that the Bench Book in New South Wales recommends and follows the English practice without any reference to the Victorian practice.

8. I think it likely, if any conclusion can be reached, that the practice in New South Wales is probably reflected in the Bench Book. However, Mr Allen makes the point that now that the second count is before the jury which has been sworn to try that count, it may affect the integrity of the trial if I were to purport to withdraw it. I think that there is some force in that argument. Mr Shaw acknowledges that force as well.

9. Therefore, because there is authority supporting both charges being at large before the jury, namely the Victorian cases, I have determined not to withdraw count 2 in the indictment in this case from the jury for the reasons which I have given.

10. I turn now to the second issue which I have been asked to resolve. That is whether I should leave with the jury, as an alternative to count 1, the charge of attempting to commit aggravated sexual intercourse without consent. Mr Shaw argues that that is an available option to me and appropriately and fairly points out the arguments for and against the proposition. Mr Allen argues that I ought not to leave the alternative of an attempt to the jury because it would prejudice his client in a number of ways.

11. I should add that the alternative is not pleaded nor was it opened on by the Crown Prosecutor. It is an alternative which in some way developed as a result of how the trial ran. It was apparent when Mr Allen was cross-examining the complainant that there is an issue as to whether the complainant’s earlier accounts of what happened were consistent with a sexual assault which did not involve penetration but which nevertheless was an attempt at that. Mr Allen cross-examined her about that, wanting to highlight what he will argue are inconsistencies between her earlier accounts to the police (which appear not to involve an allegation of penetration) and later accounts to the police and to this court (which do involve an allegation of penetration).

12. Mr Shaw argues that in favour of leaving the alternative is that it is available on the evidence if the jury determines to accept part of the complainant’s evidence but reject another part. He points out that although he did not open on it, it has been raised appropriately before the closing addresses and I agree with that. He argues that there is no prejudice to the accused because his case is that there was no sexual contact at all, so that Mr Allen’s cross-examination would have been the same, whether it was opened on or not. He also argues that, as a general rule, issue is joined on any alternative implied in the main charge. He acknowledges the arguments against, including the fact that he did not open on it and that the jury may be confused by the notion of accepting that part of the complainant’s evidence where she gave an account which fell short of penetration and rejecting the account given later where she included penetration.

13. Mr Allen’s arguments raising prejudice are these. Had the alternative of attempt been opened on in the first place, then he would have been far more cautious in cross-examining the complainant about her earlier statements. He cross-examined her on these statements, as I said, in order to highlight what he will argue are inconsistencies which will affect her credit. He says that if he had known that the alternative of attempt was at large before the jury then he would have been far more cautious in exploring that area with the complainant.

14. A second prejudice he says is that this is a case where the issue is straightforward. The jury has to be satisfied beyond reasonable doubt of the complainant’s assertion that sexual intercourse occurred. His client, so far in the Crown case in a record of interview, says that no such sexual contact occurred at all. Leaving an alternative of attempt would, he says in the circumstances of that case, raise the likelihood of a compromise verdict between the two extremes.

15. I regard Mr Allen’s arguments as persuasive. In my view he has pointed to two very real and potential sources of prejudice to his client. The Crown Prosecutor has very fairly indicated that he raised the issue because it was always open to me as the trial judge to take the view that I should leave the alternative to the jury and he has drawn my attention to the relevant considerations.

16. I have determined not to leave the alternative to the jury because of the potential prejudice to Mr Allen’s client.

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