R v Chalabian (No. 13)

[2022] NSWSC 470

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Chalabian (No. 13) [2022] NSWSC 470

Hearing dates:

5 April 2022

Date of orders:

6 April 2022

Decision date:

21 April 2022

Jurisdiction:

Common Law - Criminal

Before:

Johnson J

Decision:

1. The application to give a Mahmood direction concerning the fact that Reece Walsh was not called by the Crown as a witness at the trial is declined.

2. Subject to any further application by the parties, the directions given to the jury concerning alternative verdicts, including a “no compromise” direction, are to stand.

Catchwords:

CRIME – jury trial – trial for money laundering under s.400.3(1) Criminal Code (Cth) – defence application for Mahmood direction as a result of Crown not calling person to give evidence – consideration of relevant factors – Mahmood direction declined – directions given to jury concerning statutory alternative verdicts and “no compromise” direction – charged offence required “belief” that money or property was proceeds of crime – alternative offences involving “recklessness” or “negligence” – possible relevance of s.5.4(4) Criminal Code (Cth) containing extended definition of “recklessness” – consideration of appropriate directions to jury concerning alternative verdicts

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Code (Cth)

Criminal Code (WA)

Cases Cited:

Abdallah v R [2016] NSWCCA 275

Ansari v The Queen (2010) 241 CLR 299; [2010] HCA 18

Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93

Bouch v R (2017) 80 MVR 85; [2017] VSCA 86

Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) [2020] FCAFC 30; (2020) 387 ALR 225

Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24

Humphreys v R [2020] NSWCCA 144

King v The Queen (2012) 245 CLR 588; [2012] HCA 24

LLW v R (2012) 35 VR 372; [2012] VSCA 54

Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1

Mourkakos v R [2018] VSCA 26

Pratten v R [2014] NSWCCA 117

R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204

R v Barrett (No. 3) [2021] NSWSC 543

R v Chalabian (No. 11) [2022] NSWSC 384

R v Chalabian (No. 12) [2022] NSWSC 432

R v Currie [2002] NSWCCA 126

R v Pureau (1990) 19 NSWLR 372

R v Saengsai-Or (2004) 61 NSWLR 135; [2004] NSWCCA 108

Simms v R (2004) 148 A Crim R 433; [2004] WASCA 237

Stanton v The Queen (2003) 77 ALJR 1151; [2003] HCA 29

Texts Cited:

Criminal Trial Courts Bench Book, Judicial Commission of New South Wales

Category:

Procedural rulings

Parties:

Regina (Crown)
Sevag Chalabian (Accused)

Representation:

Counsel:
Ms T McDonald SC; Ms G Wright SC (Crown)
Mr GA Brady SC Mr A Williams (Accused)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Streeton Lawyers (Accused)

File Number(s):

2018/216206

Publication restriction:

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Judgment

1. JOHNSON J: The Accused, Sevag Chalabian, is standing trial before a jury upon an indictment charging money laundering under s.400.3(1) Criminal Code (Cth).

2. On 6 April 2022, the jury retired to consider their verdict. Jury deliberations continued on 7 April 2022. On 8 and 11 April 2022, the jury did not continue deliberations because jurors were absent having tested positive for COVID-19. The trial was adjourned until 19 April 2022 for the resumption of jury deliberations: R v Chalabian (No. 12) [2022] NSWSC 432. The 11 remaining jurors attended on 19 April 2022 and the jury resumed their deliberations.

3. This judgment concerns an issue which arose in the course of closing addresses and before summing up, and a second issue which arose after the jury had retired to consider their verdict.

4. The first issue concerns an application on behalf of the Accused for a direction to the jury in accordance with Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 (“Mahmood”) at [27] arising from the Crown not calling Reece Walsh to give evidence at the trial.

5. The second issue concerns directions given to the jury during the summing up with respect to available alternative verdicts and an associated “no compromise” direction given in that context.

Application for a Mahmood Direction Concerning Reece Walsh

6. On the afternoon of 5 April 2022, the Court heard submissions in support of the application by the Accused for a Mahmood direction concerning Reece Walsh (SU25-28).

7. On the morning of 6 April 2022, in the absence of the jury, I gave the following ruling on this application (SU30):

“HIS HONOUR: At the outset, I indicate that I decline to give a Mahmood direction concerning Reece Walsh. When reminding the jury of the closing address on behalf of the accused in this respect, I will refer to counsel's submission without any criticism or comment with respect to it. I will publish reasons for this ruling at a later time.”

8. What follows constitutes my reasons for this ruling.

9. At the outset, I observe that a Mahmood direction was sought initially with respect to a number of persons not called by the Crown. In a judgment of 5 April 2022, I indicated that a ruling concerning applications for Mahmood directions would be considered after closing addresses: R v Chalabian (No. 11) [2022] NSWSC 384 at [5]-[8].

10. As it happens, the application for a Mahmood direction was confined to Reece Walsh. In his closing address for the Accused, Mr Brady SC said to the jury concerning the Crown’s failure to call Mr Walsh (T1758-1759):

“Mr Walsh, you haven't heard from him. In fact, the police got a statement from him that didn't even seem to deal with Mr Hausman. The police got a statement from him dealing with 2012 to 2014 matters. Mr Walsh was at the meeting on 20 February, a meeting the Crown rely on. Mr Walsh was then involved in a number of WhatsApp messages. Mr Walsh was involved in a number of WhatsApp messages towards the end, particularly saying it's a put on. You know, the garnishee issues.

It is clear that Mr Hausman is talking about Mr Walsh and what Mr Walsh is doing. It is clear the accused met Mr Walsh. But you haven't heard from him.

So how do you use that? Well, you can't guess what Mr Walsh might have said. You can't speculate about what Mr Walsh might have said. But in a criminal trial, where the onus is on the Crown to prove this beyond reasonable doubt, you might think you can take into consideration, in determining whether the Crown have proved this beyond reasonable doubt, the fact that you haven't heard from Mr Walsh.

You can't speculate about what he would have said, but you haven't heard from him; the onus is on the Crown. You might be able to take that into consideration in determining whether or not the Crown have proved this beyond reasonable doubt.”

11. The Crown opposed the giving by the Court of a Mahmood direction concerning Reece Walsh (SU25-27) with Mr Brady SC advancing submissions in support of that application (SU27-28). In addition to the oral submissions made, the Court considered written submissions made for the Crown (MFI49) and the Accused (MFI44 and MFI50) on the topic of Mahmood directions, some of which were pertinent to the particular application concerning Reece Walsh.

12. In Mahmood, Gleeson CJ, Gummow, Kirby and Kiefel JJ said at [27] (my emphasis):

“It was neither necessary nor appropriate for the trial judge to direct the jury that an inference adverse to the case for the prosecution could be drawn because the presence of blood in the appellant's trouser pocket had not been the subject of evidence by the prosecution's witnesses. In the joint reasons in RPS v The Queen [(2000) 199 CLR 620 at 632-633 [27]-[29] per Gaudron ACJ, Gummow, Kirby and Hayne JJ] it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v The Queen [(2002) 210 CLR 285 at 293 [13], 327-328 [120]-[123]).”

13. There is some tension between a direction that the jury is not to speculate or guess as to what evidence an absent witness might or might not have given and a direction that the jury may take into account the absence of the witness in determining whether the Crown has proved the guilt of an accused person.

14. In a sense, the second step must involve (to some extent) the jury considering what subject matter would have been touched upon if the person had given evidence. It may be that a person is not called to give evidence on what was, at best, a peripheral issue in the trial so that a Mahmood direction would be inappropriate: R v Barrett (No. 3) [2021] NSWSC 543 at [5]-[10].

15. It is a matter for the Court, in the exercise of discretion, to determine whether a Mahmood direction should be given in circumstances where the Crown does not call a person to give evidence in a criminal trial.

16. It is relevant to a decision as to whether a Mahmood direction should be given to consider the importance or centrality of the person who did not give evidence. At the same time, it is necessary to keep in mind the critical direction, which forms part of a Mahmood direction, that a jury is not to speculate or guess as to what a person would have said if the person was called as a witness in the trial. The jury should be directed that they should not attempt to predict whether the evidence of the person would assist the Crown or assist the Accused.

17. As noted above, there is some tension between that direction and the possible direction that a jury can take into account the absence of evidence from a particular person when determining whether the Crown has proved the guilt of the Accused beyond reasonable doubt.

18. It is the case that Reece Walsh was referred to, from time to time, in evidence at the trial. There was some evidence that a statement was taken from him by the Australian Federal Police concerning events which occurred some years before the events in late 2016 and the first half of 2017 which were relevant to the trial of the Accused.

19. No request was made on behalf of the Accused that Reece Walsh be called by the Crown as a witness at the trial.

20. I took the view that the circumstances of this trial did not require the Court to give a Mahmood direction to the jury concerning Reece Walsh. Senior Counsel for the Accused had addressed the jury on this topic with a submission which culminated, in somewhat tentative terms, that the jury “might be able to take [his absence as a witness] into consideration in determining whether or not the Crown have proved this beyond reasonable doubt” (see [10] above).

21. In my view, Reece Walsh was an incidental participant in events which had relevance to the trial. It would have overstated the position for the Court to give a Mahmood direction arising from his not giving evidence in the trial.

22. The appropriate balance was to leave, without criticism or comment, the argument advanced on behalf of the Accused with respect to Reece Walsh. That is the course which I took, thereby declining the application by the Accused for a Mahmood direction with respect to him.

Issues Relating to Directions to Jury Concerning Alternative Verdicts

The Charged Offence and Alternative Verdicts

23. The Accused is standing trial upon a single count under s.400.3(1) expressed in the following terms:

“Between about 1 February 2017 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, [he] did deal with money or property that was, and that [he] believed to be, proceeds of crime, and at the time of dealing the value of the money or property was $1,000.000.00 or more.”

24. The Crown foreshadowed in opening to the jury (T230), that reference would be made, as well, to statutory alternative verdicts under s.400.14 Criminal Code (Cth), involving lesser tiers of offences based (instead of belief) upon recklessness (s.400.3(2)) or negligence (s.400.3(3)). In taking this course, the Crown complied with the procedural requirement noted in R v Pureau (1990) 19 NSWLR 372 at 376-377, where alternative verdicts may arise in a criminal trial. After the Crown opening address and before the opening address for the Accused, the Court informed the jury that directions would be given later in the trial concerning the alternative verdicts mentioned by the Crown (T231).

25. In due course, written directions were settled by the Court concerning alternative verdicts (MFI60). These written directions were provided to the jury before closing addresses, together with a document entitled “Elements of the Offence Charged in the Indictment” (MFI70). This was an expanded version of a document provided to the jury before opening addresses which set out the elements of the offence charged against the Accused (MFI3).

26. The written directions in MFI70 explained the concepts of “recklessness” and “negligence” based upon, respectively, definitions contained in s.5.4(1) and 5.5 Criminal Code (Cth).

The “No Compromise” Direction

27. After taking the jury through the written directions concerning alternative verdicts in MFI60, I said (SU19-20):

“The offence charged in the indictment is based on belief. If you were not satisfied beyond reasonable doubt as to that, you would consider whether you were satisfied beyond reasonable doubt of the elements of the first alternative verdict based on recklessness. If you were not satisfied beyond reasonable doubt of the offence charged in the indictment, the belief offence, or the first alternative verdict, the recklessness offence, you would turn to the second alternative verdict based on negligence.

So they are alternative verdicts available in circumstances where the offence charged in the indictment is brought to trial before a court. As I have said, in raising these with you, I am not expressing any view about these matters. I am merely trying to spell out to you the permutations and combinations of law which can arise where a criminal charge is before a jury for trial.

I should raise one further matter with you. It is a matter for you as to how you approach your task in determining your verdict on the charge contained in the indictment and any alternative charge available for your consideration. As I have explained, if you are not satisfied beyond reasonable doubt of the offence charged in the indictment, it is open to you to turn to the first alternative offence; and if not satisfied beyond reasonable doubt of that, to turn to the second alternative offence.

However, I direct you that you should not regard the availability of an alternative offence as an invitation to compromise your verdict. For example, it would be quite wrong for you to find the accused guilty of either of the alternative offences simply because some of you found that the accused was guilty of the principal count in the indictment but others were not so satisfied and would enter a verdict of not guilty to that charge. It would be unfair and contrary to your oaths or affirmations to decide to break the deadlock, if there was a deadlock, by convicting the accused on either of the alternative counts.

I should indicate that the direction I have just given you is a direction which judges routinely give juries when there are alternative verdicts under consideration. That direction is not given because of any view about this case. It is important, however, that you understand they are principles that apply if you come to consider the alternative verdicts.”

28. This direction was an orthodox “no compromise” direction given to juries in criminal trials when alternative verdicts arise for consideration. The direction which I gave, in this respect, was based upon the suggested direction contained in paragraph [2-210] of the Criminal Trial Courts Bench Book issued by the Judicial Commission of New South Wales.

The Jury Seeks Clarification

29. The summing up to the jury proceeded for about an hour on the afternoon of 5 April 2022. On the morning of 6 April 2022, when the jury entered the courtroom for the continuation of the summing up, I was handed a note from the jury which led to the following being said to the jury (SU33-34):

“HIS HONOUR: Just as the jury came in I was handed a note from the jury. It touches upon the issue of alternative verdicts. I think I am able to deal with your inquiry. This is not a case where I would need to hear counsel first and ask you to leave. What I will do is read out your note and then I will say something about your question. The note says:

‘Could you please provide further clarification around alternative verdicts. As we understand it, we cannot consider an alternative verdict unless we all unanimously vote not guilty on the higher charge. Is this correct? Therefore, if we are divided on the indictment, we cannot drop to consider a lower verdict.’

MFI #74 JURY NOTE

Let me respond to your question directly. You are quite correct. You say:

‘As we understand it, we cannot consider an alternative verdict unless we all unanimously vote not guilty on the higher charge.’

That is correct. Then you say:

‘If we are divided on the indictment, we cannot drop to consider a lower verdict.’

That is correct. Let me just repeat the direction I gave you yesterday, which is along those lines, but it bears repeating given your question. After explaining the elements of the alternative verdicts, I then said to you:

‘If you are not satisfied that the Crown has proved beyond reasonable doubt all the necessary elements of the offence charged in the indictment, then you must find the accused not guilty of that charge. You may then consider whether the Crown has proved beyond reasonable doubt all the necessary ingredients of the alternative charge which are open to you.’

As I have indicated to you, the ingredients of the principal offence and the alternative charges are not identical. If you find that the Crown has proved beyond reasonable doubt each of the elements of the alternative offence, or either of them, then you may find the accused guilty of the relevant alternative offence.

I went on to say this:

‘However, I direct you that you should not regard the availability of an alternative offence or offences as an invitation to compromise your verdict. For example, it would be quite wrong for you to find the accused guilty of either of the alternative offences simply because some of you found that the accused was guilty of the principal count in the indictment but others were not so satisfied and would enter a verdict of not guilty on that charge. It would be unfair and contrary to your oaths or affirmations to decide to break any deadlock by convicting the accused of either of the alternative counts.’

So that, I hope, confirms the correctness of the question in your note. Before I finally ask you to retire to consider your verdict, I will be giving you another document which relates to the return of verdict and which sets out in order the various alternative steps. I hope that that will assist too in your understanding of the process.

What I have just said I hope responds to your note. If there is anything else that you seek by way of clarification, then please use the same mechanism. It is better that you ask the question and I seek to clarify it, rather than leaving a state of uncertainty on something that I have said.”

30. The directions given to the jury concerning alternative verdicts, including the “no compromise” direction, were not challenged or criticised by the Crown or counsel for the Accused. It was clear that the parties agreed that these were appropriate directions to give to the jury in the circumstances of this trial.

Directions Concerning Return of Verdict

31. Near the conclusion of the summing up, the jury were provided with a document entitled “Return of Verdict” (MFI73). The jury were taken to that document (SU97-98):

“This document has been prepared because of the various possibilities which have been raised because of potential alternative verdicts.

At the point where your foreperson was asked what the verdict is, paragraph 1 of MFI 73:

‘1.    If each of you is satisfied beyond reasonable doubt that the accused is guilty of the offence charged in the indictment, that is the belief offence - the appropriate verdict is 'Guilty'.

2.    If each of you is not satisfied beyond reasonable doubt that the accused is guilty of the offence charged in the indictment, but each of you is satisfied beyond reasonable doubt that the accused was guilty of the first alternative offence, that is the recklessness offence, the appropriate verdict is 'Not guilty of the offence charged in the indictment but guilty of an offence of dealing with money or other property being reckless as to the fact that the money or property was the proceeds of crime'.

3.    If each of you is not satisfied beyond reasonable doubt that the accused is guilty of the offence charged in the indictment, that is the belief offence, or the first alternative offence, the recklessness offence, but each of you is satisfied beyond reasonable doubt that the accused is guilty of the second alternative offence, that is the negligence offence, the appropriate verdict is 'Not guilty of the offence charged in the indictment, not guilty of the recklessness offence, but guilty of an offence of dealing with money or other property being negligent as to the fact that the money or property was the proceeds of crime'.

4.    If each of you is not satisfied beyond reasonable doubt the accused is guilty of the offence charged in the indictment, the belief offence, the first alternative offence, the recklessness offence, or the second alternative offence, the negligence offence, the appropriate verdict is 'Not guilty of the offence charged in the indictment, not guilty of the recklessness offence, not guilty of the negligence offence'.’

This document seeks to give you the various potential outcomes and the formula of words that would be appropriate, depending upon the verdict which you reach. I ask you to keep that in mind.”

32. The jury retired to consider their verdict on the afternoon of 6 April 2022. Deliberations continued on Thursday, 7 April 2022 with the jury seeking, and being provided with, a copy of the summing up (MFI81) together with a copy of the transcript of closing addresses on behalf of the Crown and the Accused (MFI80).

33. As noted earlier, on the morning of 8 April 2022, as a result of illness affecting two jurors, the trial was adjourned until 10.00 am on 11 April 2022.

The Court Raises an Issue with the Parties Concerning Directions

34. I had been giving further consideration to the terms of the “no compromise” direction given to the jury. In these circumstances, on the afternoon of 8 April 2022, at my request, my Associate emailed the parties in the following terms (MFI84):

“His Honour has been giving consideration to the directions given to the jury with respect to recklessness in the context of the first alternative offence and the associated question of the ‘no compromise’ direction given to the jury concerning alternative verdicts. 

Section 5.4(4) of the Criminal Code (Cth) provides:

‘(4)     If recklessness is  a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.’

His Honour will enquire of counsel at 10.00 am on Monday as to whether s.5.4(4) might apply so as to modify the ‘no compromise’ direction given to the jury at SU19-20 and SU33-34 (MFI81).  In other words, does s.5.4(4) operate so as to permit a unanimous verdict of guilty for the recklessness offence if some jurors are satisfied beyond reasonable doubt of the belief element and the balance of the jury are satisfied beyond reasonable doubt of the recklessness element?

It would be of assistance to the Court if the parties put something in writing on this issue to be provided by email to me by, say, 9.00 am on Monday, 11 April 2022.”

35. As noted earlier, on the morning of 11 April 2022, the trial could not proceed because of three jurors testing positive to COVID-19 with the trial being adjourned, on the joint application of the parties, until 10.00 am on 19 April 2022: R v Chalabian (No. 12).

36. In accordance with the request of the Court, the Crown provided a written submission concerning the operation of s.5.4(4) Criminal Code (Cth) in the context of the alternative verdict directions (MFI85). Counsel for the Accused indicated by email that he agreed with the submissions made for the Crown and had nothing to add (MFI86).

37. The Crown submission was that the directions given to the jury were correct and that no proper basis existed for any amendment to the directions on this topic. In this respect, the Crown referred to authorities including Stanton v The Queen (2003) 77 ALJR 1151; [2003] HCA 29 and King v The Queen (2012) 245 CLR 588; [2012] HCA 24.

38. Accordingly, the joint position of the Crown and the Accused was that the jury had been given correct directions and that there was no occasion to amend directions given to the jury concerning the alternative verdicts, including the “no compromise” direction.

39. In light of the joint position of the parties in this respect, I made clear that the Court would not amend the directions given to the jury on this aspect (SU138-140). I indicated, however, that I would publish reasons explaining why this issue had been raised with the parties as against the possibility that it arose again as an issue in the context of this trial or a later trial.

40. In this respect, I was conscious that a charge of money laundering under s.400.3(1) Criminal Code (Cth) had been brought against one or more of the accused who are to stand trial before Payne J and a jury after the trial of the present Accused is complete (R v Adam Cranston and Ors). What follows constitutes exposure of my reasoning for raising this issue with the parties in the way that occurred on 8 April 2022.

Relevant Provisions in the Criminal Code (Cth)

41. The Accused is standing trial for a “Tier 1” offence under s.400.3(1) Criminal Code (Cth) which provides (my emphasis):

“(1)     A person commits an offence if:

(a)     the person deals with money or other property; and

(b)     either:

(i)     the money or property is, and the person believes it to be, proceeds of indictable crime; or

(ii)     the person intends that the money or property will become an instrument of crime; and

(c)     at the time of the dealing, the value of the money and other property is $1,000,000 or more.

Penalty:  Imprisonment for 25 years, or 1500 penalty units, or both.”

42. Section 400.3(2) provides for a “Tier 2” offence involving recklessness (as opposed to belief). That provision states (my emphasis):

“ (2)     A person commits an offence if:

(a)     the person deals with money or other property; and

(b)     either:

(i)     the money or property is proceeds of indictable crime; or

(ii)     there is a risk that the money or property will become an instrument of crime; and

(c)     the person is reckless as to the fact that the money or property is proceeds of indictable crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

(d)     at the time of the dealing, the value of the money and other property is $1,000,000 or more.

Penalty:  Imprisonment for 12 years, or 720 penalty units, or both.”

43. Section 400.3(3) provides for a “Tier 3” offence based upon negligence (as opposed to belief or recklessness). That provision states (my emphasis):

“(3)     A person commits an offence if:

(a)     the person deals with money or other property; and

(b)     either:

(i)     the money or property is proceeds of indictable crime; or

(ii)     there is a risk that the money or property will become an instrument of crime; and

(c)     the person is negligent as to the fact that the money or property is proceeds of indictable crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

(d)     at the time of the dealing, the value of the money and other property is $1,000,000 or more.

Penalty:  Imprisonment for 5 years, or 300 penalty units, or both.”

44. Section 400.14 provides for alternative verdicts:

“400.14  Alternative verdicts

If, on a trial for an offence against a provision of this Division (the offence charged), the trier of fact:

(a)     is not satisfied that the defendant is guilty of the offence charged; but

(b)     is otherwise satisfied that the defendant is guilty of another offence against this Division for which the maximum penalty, in penalty units, is less than the maximum penalty, in penalty units, for the offence charged;

the trier of fact may find the defendant not guilty of the offence charged but guilty of the other offence, so long as the person has been accorded procedural fairness in relation to that finding of guilt.”

45. Sections 3.1 and 3.2 lie within Part 2.2 of the Code concerning the elements of an offence. Those provisions state:

“3.1     Elements

(1)     An offence consists of physical elements and fault elements.

(2)     However, the law that creates the offence may provide that there is no fault element for one or more physical elements.

(3)     The law that creates the offence may provide different fault elements for different physical elements.

3.2     Establishing guilt in respect of offences

In order for a person to be found guilty of committing an offence the following must be proved:

(a)     the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

(b)     in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.”

46. Section 4.1 provides for the physical elements of an offence:

“4.1     Physical elements

(1)     A physical element of an offence may be:

(a)     conduct; or

(b)     a result of conduct; or

(c)     a circumstance in which conduct, or a result of conduct, occurs.

(2)     In this Code:

conduct means an act, an omission to perform an act or a state of affairs.

engage in conduct means:

(a)     do an act; or

(b)     omit to perform an act.”

47. Sections 5.1 to 5.6 of the Code concern fault elements for offences under the Code. Those sections state:

“5.1     Fault elements

(1)     A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(2)     Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.

5.2     Intention

(1)     A person has intention with respect to conduct if he or she means to engage in that conduct.

(2)     A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3)     A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

5.3     Knowledge

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

5.4     Recklessness

(1)     A person is reckless with respect to a circumstance if:

(a)     he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b)     having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2)     A person is reckless with respect to a result if:

(a)     he or she is aware of a substantial risk that the result will occur; and

(b)     having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(3)     The question whether taking a risk is unjustifiable is one of fact.

(4)     If recklessness is  a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

5.5     Negligence

A person is negligent with respect to a physical element of an offence if his or her conduct involves:

(a)     such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b)     such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence.

5.6     Offences that do not specify fault elements

(1)     If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

(2)     If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.”

Submissions of the Parties

48. The Crown submitted that, as recklessness is not “a fault element for a physical element” of the offence on the indictment, the application of s.5.4(4) does not arise in respect of the jury’s consideration of the charge on the indictment, which is based on the fault element of belief.

49. It was submitted that s.5.4(4) operates to prevent the situation where the charge on the indictment is recklessness, but the jury is divided between those who find that the Accused knew, and those who find the lesser fault element only as proven. It would be irrational that there was a hung jury in those circumstances. The purpose of s.5.4(4) is, it was submitted, to deal with that possible irrational result.

50. The Crown submitted that the potential application of s.5.4(4) does not arise at all in this prosecution, and the jury will not be able to apply that subsection if they find the Accused not guilty of the offence on the indictment and move to return a verdict on the first alternative offence based on recklessness.

51. It was submitted that, whilst s.5.4(4) operates where the trier of fact is considering an offence where there is the fault element of recklessness (such as the first alternative verdict in this trial), the jury can only do that once they have unanimously found the Accused not guilty of the offence on the indictment. If they find him not guilty of the charge on the indictment, there would be no occasion for s.5.4(4) to operate when considering the recklessness offence, given that they would have already found that his belief is not proved to the criminal standard, and given that this is the single issue for determination in this trial.

52. The Crown submitted that the jury is not able to return a verdict of guilty on the first alternative verdict unless they are satisfied unanimously that he is not guilty of the charge on the indictment. In this regard, reliance was placed upon the judgment of the majority (Gleeson CJ, McHugh and Hayne JJ) in Stanton v The Queen at [27]. Although Gummow and Callinan JJ dissented in the outcome, the Crown noted that their Honours (at [69]) agreed with the approach of the majority on this issue, so that a jury ought be directed that it will be only if the jury reach a verdict of not guilty on the principal charge (in that case, wilful murder) that they would be asked to return another or other verdicts.

53. It was submitted that the alternative verdicts provision in s.400.14 Criminal Code (Cth) was similar to that considered by the High Court in King v The Queen. It was noted that the majority (French CJ, Crennan and Kiefel JJ) said (at [56]) that a jury has no power to return an alternative verdict unless first satisfied that the person is not guilty of the offence as charged in the indictment. Although noting that what was said in this respect in King v The Queen may not form part of the ratio decidendi of the case, the Crown noted that all Judges agreed that unanimity was required as a condition precedent to the jury’s power to return an alternative verdict provided by the statute so that the decision is highly persuasive.

54. The Crown submitted that s.5.4(4) does not operate so as to permit a unanimous verdict of guilty for the recklessness offence if some jurors are satisfied beyond reasonable doubt of the belief element and the balance of the jury are satisfied beyond reasonable doubt of the recklessness element. The jurors are not able to resolve a state of disagreement between them in relation to the charge on the indictment by applying s.5.4(4). The Crown submitted that this is because s.400.14 does not allow a hung jury to move to consider the first alternative verdict.

55. The Crown submitted that the directions given to the jury to the effect that they cannot find the Accused guilty of an alternative charge, unless they have reached a unanimous verdict of not guilty on the primary charge, are correct.

56. As noted earlier, counsel for the Accused agreed with the Crown submission (contained in MFI85) and had nothing to add (MFI86).

The Concept of “Recklessness” and s.5.4(4) Criminal Code (Cth)

57. In R v Saengsai-Or (2004) 61 NSWLR 135; [2004] NSWCCA 108, Bell J (Wood CJ at CL and Simpson J agreeing) explained the scheme of the Criminal Code (Cth) in the following way (at [37]-[43]):

“37 The general principles of criminal responsibility in the Criminal Code do not adopt the common law concepts of actus reus and mens rea. Instead the Criminal Code defines criminal responsibility in terms of proof of the physical elements and fault elements of an offence. The physical elements of an offence may be conduct, a result of conduct and a circumstance in which conduct, or a result of conduct, occurs: s 4.1.

38 Under the Criminal Code the fault elements of an offence may be intention, knowledge, recklessness and negligence: s 5.1 (additional fault elements may be specified for the physical elements of a given offence).

39    The Criminal Code provides that a person has intention with respect to conduct if he or she means to engage in that conduct: s 5.2(1).

40    The fault element of knowledge requires proof of actual knowledge; a person has knowledge of a circumstance or a result if he or she is aware that it exists or that it will exist in the ordinary course of events: s 5.3.

41    Recklessness with respect to a circumstance requires proof that the person is aware of a substantial risk that the circumstance exists or will exist and having regard to the circumstances that are known to him or her, it is unjustifiable to take the risk: s 5.4(1).

42 An offence consists of physical and fault elements. Liability for the commission of an offence is dependent upon proof of each physical element of the offence together with proof of the fault element that is applicable to each physical element. An offence may comprise more than one physical element and different fault elements may apply to each physical element: s 3.1 (provision is made for the law creating an offence to specify that there is no fault element for one or more of the physical elements of the offence). In the absence of specification of the fault element (or specification that there is no fault element) for a physical element the Criminal Code makes provision for default fault elements: s 5.6.

43    Intention is the default fault element for a physical element that consists only of conduct: s 5.6(1). Recklessness is the default fault element for a physical element that consists of a circumstance or a result: s 5.6(2).”

58. Later in R v Saengsai-Or, Bell J referred to recklessness at [70]:

“Recklessness with respect to a circumstance under the Criminal Code invites consideration of (i) the accused’s awareness of a substantial risk that the circumstance exists, and (ii) having regard to the known circumstances whether it was unjustifiable to take the risk. The latter consideration does not involve a question of fact. It requires that the jury make a moral or value judgment concerning the accused’s advertent disregard of the risk.”

59. In R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204, the Court of Criminal Appeal considered provisions of the Criminal Code (Cth) in the context of a prosecution for an offence of conspiracy to money launder (based on recklessness) under s.400.3 of the Code. Simpson J observed (at [22]) that in the circumstances of that case, s.5.4(4) was significant as it permitted recklessness to be established by proof, not only of recklessness, but also intention or knowledge.

59. In R v Ansari, Howie J (Hislop J agreeing) said at [88]-[89]:

“88    Secondly recklessness under the Code can be proved by both intention and knowledge. Section 5.4(4) provides:

(4)    If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

Therefore, if the conspirators intended that they would carry out the conduct knowing all the facts that made that conduct criminal it would not matter that the offence arising from that conduct was one for which the fault element was recklessness.

89    It is the second reason that applies in the present case. Provided that the Crown was intending to prove as against the appellants that they knew that there was a risk that the money they dealt with would become an instrument of crime, that is that they knew of all the facts that made their dealing with the money criminal conduct, there was no impediment to the prosecution proving the offences charged.”

61. In Ansari v The Queen (2010) 241 CLR 299; [2010] HCA 18, the High Court considered the relevance and operation of s.5.4(4) in an appeal from the decision of the Court of Criminal Appeal. French CJ observed at [7]:

“Critical to the disposition of the present appeals is s 5.4(4) of the Code, which provides that, where recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.”

62. A little later, French CJ said at [26] (my emphasis):

“The requisite intention on the part of the conspirators that the offence against s 400.3(2) be committed extends to an intention that the person committing it will be reckless as to the fact that there is a risk that the money dealt with will become an instrument of crime. Such an intention may exist where the contemplated repository of the reckless state of mind is a third party. But if it be the alleged conspirator who is said to intend to carry out the offence, that person may intend to deal with the money with knowledge of the risk that it will become an instrument of crime. Alternatively, such a person may intend to deal with the money intending that there will be a risk that it will become an instrument of crime. These states of mind are logically consistent and reflect the application of the extended meaning of recklessness under s 5.4(4) of the Code. Once that is accepted, no incoherence is introduced by reason of the particular offences of structured transactions and tax evasion relied upon to support the characterisation of the possible use of the money as an instrument of crime. That is not to say that a charge of this kind does not create a significant challenge for the trial judge in directing the jury in a way that is clear and comprehensible. But that practical difficulty does not go to the question whether the charges laid against the appellants were bad at law.”

63. In Ansari v The Queen, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said at [59]:

“Proof of intention to commit an offence requires proof of the accused's knowledge of, or belief in, the facts that make the proposed conduct an offence [LK [2010] at [117]]. Fault elements are specified with respect to physical elements of an offence [Code, ss 3.1(2), 3.2]. They are defined in Div 5 of Pt 2.2 in a descending order of culpability: intention, knowledge, recklessness and negligence. The most blameworthy fault element is intention and the least blameworthy is negligence. To intend that a fact, circumstance or state of affairs will exist includes a lesser mental state with respect to the existence of that fact, circumstance or state of affairs [This is reflected in the Code, s 5.4(4)].”

Money Laundering Offences Under New South Wales Law

64. The Crimes Act 1900 (NSW) makes provision for money laundering offences under New South Wales law with cascading alternatives being available. The provisions were explained, in a sentencing context, by the Court of Criminal Appeal in Humphreys v R [2020] NSWCCA 144 where, with the agreement of Simpson AJA and Hamill J, I said at [114]-[121]:

“114 At the outset, it is important to note the structure of the money laundering offences contained in s.193B Crimes Act 1900:

‘193B Money laundering

(1) A person who deals with proceeds of crime -

(a)    knowing that it is proceeds of crime, and

(b)    intending to conceal that it is proceeds of crime,

is guilty of an offence.

Maximum penalty - imprisonment for 20 years.

(2)    A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.

Maximum penalty - imprisonment for 15 years.

(3)    A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.

Maximum penalty - imprisonment for 10 years.

(4)    It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory.’

115   Barnes was charged with and convicted of offences under s.193B(2), each of which carried a maximum penalty of imprisonment for 15 years. The Applicant, on the other hand, was charged with and convicted of offences under s.193B(3), each of which carried a maximum penalty of imprisonment for 10 years.

116   Section 193B creates a series of offences with an escalating maximum penalty with the gravest offence being that contained in s.193B(1) followed by the offence in s.193B(2) and then an offence under s.193B(3). Knowledge that the ‘proceeds of crime’ are proceeds of crime is an element of a s.193B(2) offence, but not a s.193B(3) offence. With respect to the latter offence, it is for the Crown to prove that the accused person dealt with proceeds of crime being reckless as to whether the relevant property was proceeds of crime. The terms ‘deal with’ and ‘proceeds of crime’ are defined in s.193A.

117   The cascading structure of offences contained in s.193B is confirmed by s.193E which provides for alternative verdicts so that, where a person is on trial for an offence under s.193B(2), and the jury is not satisfied that the accused person is guilty of the offence charged, but is satisfied that he or she is guilty of an offence under s.193B(3), the jury may find the person guilty of a s.193B(3) offence and the accused person is liable to punishment accordingly (s.193E(2)).

118 Insofar as recklessness is an element of a s.193B(3) offence, it is appropriate to note s.4A Crimes Act 1900 which provides:

‘4A Recklessness

For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.’

119   Where a person is to be sentenced for offences under s.193B(3), it is necessary for the sentencing court to keep in mind the elements of an offence under that section so as to guard against the risk of error by reference to the principles in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 by, in effect, sentencing the offender as if that person had committed an offence under s.193B(2): Atilgan v R [2018] NSWCCA 5.

120   Even in a case of a s.193B(3) offence where the Crown relies upon s.4A to prove recklessness by means of proof of knowledge, it remains necessary for the sentencing Judge to be conscious of the confines on sentence imposed by s.193B(3), where the lesser maximum penalty of imprisonment for 10 years is fixed. The maximum penalty is a most important sentencing yardstick: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. The ‘spectrum’ of conduct which constitutes an offence under a particular section is capped by the maximum penalty which is to be taken into account in identifying where a particular offence lies on that ‘spectrum’: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]; The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19].

121   The De Simoni principle operates for the benefit of the offender and is an aspect of the fundamental principle that no one should be punished for an offence for which the person has not been convicted: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [29].”

65. It will be noted that s.193E Crimes Act 1900 (NSW) makes provision for alternative verdicts in a form which is broadly analogous to s.400.14 Criminal Code (Cth).

66. As explained in Humphreys v R (at [115]), the accused person in that case stood trial for offences under s.193B(3) Crimes Act 1900 (NSW) based on recklessness. He was not charged with s.193B(2) offences involving knowledge as an element.

Further Considerations Relevant to the Directions to the Jury Concerning Alternative Verdicts

67. The indictment in this trial contains a single count alleging a Tier 1 offence under s.400.3(1) Criminal Code (Cth). The only way in which the jury may consider alternative verdicts for Tier 2 and Tier 3 offences under s.400.3 is if the jury “is not satisfied that [the Accused] is guilty of the offence charged” in the indictment: s.400.14 Criminal Code (Cth). The language of s.400.14 is similar to the provision considered in King v The Queen (at [12]) so that the power to deliver an alternative verdict of guilty under s.400.14 is conditional upon the jury not being satisfied of the guilt of the Accused on the s.400.3(1) offence charged in the indictment. See also Bouch v R (2017) 80 MVR 85; [2017] VSCA 86 at [55]-[65] (Redlich and Weinberg JJA).

68. In Stanton v The Queen, Gleeson CJ, McHugh and Hayne JJ outlined the applicable principles where a jury is considering alternative verdicts (at [23]-[27]) (my emphasis):

“23   The corollary of that proposition is that, as Anderson J told the jury, they would only be asked whether they found the appellant guilty or not guilty of murder if they had already found him not guilty of wilful murder; and they would only be asked whether they found the appellant guilty or not guilty of manslaughter if they had already found him not guilty of wilful murder and not guilty of murder. In Gammage v The Queen, Kitto J said:

‘The common law, authorizing as it did a verdict of guilty of manslaughter on an indictment for murder, always made it a condition of the validity of that verdict that the jury should first have returned a verdict of not guilty of murder.’

24   In R v McCready, the Full Court of the Supreme Court of Victoria, speaking of a case where the indictment charged rape and where there was, by statute, a possible alternative verdict of assault with intent to commit rape, said:

‘The terms of [the statute], in our view, make a verdict of assault with intent to commit rape dependent upon the jury being not satisfied that the accused is guilty of the crime of rape. The question of his guilt of the alternative charge does not arise unless and until the jury is not satisfied of his guilt of rape, and whilst the jury is in a state of disagreement upon the latter, the accused's guilt of the alternative crime remains irrelevant.’

25   There is nothing in The Criminal Code that warrants a different conclusion in a case such as the present. In the Full Court, this was accepted by Owen J, but Murray J took a different view. If, as appears to be the case, his Honour contemplated that the jury, while still in a state of inability to agree upon a verdict (guilty or not guilty) in relation to the charge in the indictment, might have been invited to return a verdict on an alternative charge, then there is no justification for such a course.

26   It was not submitted that the trial judge should have given a direction of the kind considered in Gilson v The Queen, or that the case was one for a special verdict of the kind permitted by statute in some jurisdictions to overcome the problem that arises in relation to alternative charges of theft and receiving. In the Full Court, both Murray J and Owen J agreed that Gilson was not in point. That was not contested in this Court.

27   As the direction recommended in Black acknowledges, when the jury were considering the charge of wilful murder, it was proper for individual jurors to attach weight to the opinions of others, and if persuaded by those opinions, to modify or alter their own views in response. But if, after full deliberation, and interchange of views, some were of the opinion that the prosecution had established its case beyond reasonable doubt (which, in this case, meant that the prosecution had proved beyond reasonable doubt the appellant's intent to kill his wife), and others were of the opinion that the prosecution had not established its case beyond reasonable doubt (that is to say, if they had a doubt about intent to kill), then there was a state of disagreement. They might seek to resolve that disagreement by further discussion, which could lead some to change their opinions. But so long as they adhered to those opinions, they would be unable to agree on a verdict on the charge in the indictment. On that hypothesis, some jurors would consider that the appellant was guilty of wilful murder and other jurors would consider that the appellant was guilty of manslaughter. If those were their final opinions, then the outcome would be discharge and, potentially, a new trial; not a verdict of manslaughter, much less a ‘verdict’ of ‘at least manslaughter’.”

69. To the extent that reference was made in Stanton v The Queen at [26] (see [68] above) to a special verdict in accordance with the principles in Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24, it should be observed that no such special verdict is available here. The operation of s.400.14 Criminal Code (Cth) is clear (see [44], [67] above).

70. In Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93, Beazley JA (James J agreeing) said at [88]:

“Both at common law and pursuant to statute, it is a condition of the validity of a verdict on an alternative charge that the jury first return a verdict of not guilty on the principal charge: Gammage v The Queen [1969] HCA 68; 122 CLR 444 at [23]. In R v McCready [1967] VR 325, the Court said, at [24], in respect of a provision which made a verdict of assault with intent to commit rape dependent upon the jury being not satisfied that the accused was guilty of the crime of rape and thus in terms to the same effect as the terms of s 34:

‘The question of his guilt of the alternative charge does not arise unless and until the jury is not satisfied of his guilt of rape, and whilst the jury is in a state of disagreement upon the latter, the accused's guilt of the alternative crime remains irrelevant’.”

71. The need for a “no compromise” direction to be given to a jury where alternative verdicts are under consideration has been emphasised: R v Currie [2002] NSWCCA 126 at [13], [96]. The “no compromise” direction in the Criminal Trial Courts Bench Book received specific endorsement in Blackwell v R at [89]-[90]. As noted earlier (at [28]), it was this model direction that was used by the Court in the present trial.

The Need to Guard Against Dictating the Jury’s Sequence of Deliberations

72. Importantly, in Stanton v The Queen, Gleeson CJ, McHugh and Hayne JJA said at [35]-[36] (my emphasis):

“35   Jurors are free to organize their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient. The question is whether Anderson J might reasonably have been understood to convey anything to the contrary, or whether he was merely informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them. What he said was: ‘You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the first charge of wilful murder, it must be unanimous’.

36   A proper appreciation of what Anderson J said requires attention to three matters: the issues as they emerged at the trial; the other directions that the jury had already been given; and the precise question to which he was giving an answer.”

73. After considering those aspects of the trial, their Honours held that the trial Judge’s direction to the jury did not involve error.

74. Arising from Stanton v The Queen at [35] (see [72] above), Courts have also emphasised the importance of the trial Judge not dictating a sequence of deliberations to the jury where alternative verdicts are under consideration.

75. The decision in Stanton v The Queen at [35] (see [72] above) makes clear that the jury is free to undertake its task and deliberations in any order it considers appropriate: Abdallah v R [2016] NSWCCA 275 at [46]-[47].

76. In Simms v R (2004) 148 A Crim R 433; [2004] WASCA 237, Jenkins J (Le Miere J agreeing) said at [50]:

“[50]    From the above review of the High Court's decision in Stanton v R (supra) the following principles emerge:

1.   It is impermissible for a trial Judge to direct members of a jury that they must consider alternative charges in any particular order as jurors are free to organize their deliberations in whatever manner appears to them to be convenient.

2.   When determining whether a trial Judge's directions have infringed this prohibition the question is whether the trial Judge might reasonably have been understood to convey anything to the contrary, or whether he or she was merely informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them.

3.   In determining the answer to this question, an individual direction should not be construed on its own but must be considered in light of the issues that have emerged at the trial, the whole of the trial Judge's directions and any questions from the jury.”

77. This summary by Jenkins J has been referred to, with approval, in later cases including Bouch v R at [43]-[45].

78. The importance of a trial Judge guarding against the fettering of a jury’s approach to deliberations has been emphasised in a number of decisions.

79. In LLW v R (2012) 35 VR 372; [2012] VSCA 54, Maxwell P, Weinberg JA and Williams AJA said at [5] (my emphasis):

“The legal requirement is clear. The jury may not return a verdict on an alternative count unless and until they have first acquitted the accused on the principal count. This rule is, however, concerned only with the order in which verdicts are returned. It says nothing about the process of deliberation by which the jury may arrive at their verdicts. Thus, it would be an error for a judge to direct a jury that they must refrain from considering an alternative count until they had completed their consideration of the principal count [Stanton v R (2003) 77 ALJR 1151 (Stanton)].”

80. After referring to Stanton v The Queen, their Honours said in LLW v R at [11]-[15] (my emphasis):

“[11]   Read literally, what the Full Court said might have been thought to prohibit the jury from giving any consideration to the question of the accused’s guilt of the alternative count ‘unless and until’ they had reached agreement that the accused was not guilty of the principal count. The High Court decision in Stanton [(2003) 77 ALJR 1151] makes clear, however, that there is no such constraint on the jury’s processes of deliberation. The only constraint on a jury considering alternative counts relates to the order in which their verdicts are delivered. The jury cannot deliver a verdict on an alternative count unless they have first acquitted the accused of the principal count.

[12]   In Stanton, the accused faced a charge of wilful murder. The statutory alternatives were murder and manslaughter. The judge directed the jury as follows:

You first consider wilful murder and if you’re unanimously of the view that the accused is guilty of wilful murder, that will be your verdict. If you are unanimously of the view that he is not guilty of wilful murder, then you proceed to consider whether you find him guilty of murder [emphasis added].

And again:

The law is quite clear. You cannot come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder [emphasis added].

[13]   Although the court was divided 3–2 on the outcome, the justices were unanimous that a direction on alternative verdicts will be contrary to law if it ‘dictates to the jury a sequence of deliberation’ [Ibid [34]]. The majority (Gleeson CJ, McHugh and Hayne JJ) cited the above passage from McCready as applicable to the case at hand, before stating:

Jurors are free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient. The question is whether [the trial judge] might reasonably have been understood to convey anything to the contrary, or whether he was merely informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them [Ibid [35]].

[14]   The majority concluded that the direction concerned ‘the formal act of finding a verdict’, and not ‘a sequence of reasoning’ [Ibid [39]], and hence was permissible. The minority (Gummow and Callinan JJ) concluded that

the directions … failed to make the necessary distinction between the jury’s freedom to ‘consider’ their verdicts in whatever order they choose, and their obligation to return verdicts in descending order of seriousness if they were not satisfied of the appellant’s guilt on the most or more serious of the counts [Ibid [70]]

According to Gummow and Callinan JJ, it was

accepted that the prosecution is entitled to, and the jury is bound to return, a verdict on the principal count on the indictment, and for it to be taken first [Ibid [65]].

[15]   It follows that a jury cannot find an accused guilty of an alternative count unless they have reached a unanimous verdict of not guilty on the principal count. As will appear, however, that is precisely what the jury in the present case purported to do, that is, find the appellant guilty of the alternative count of sexual penetration without having reached a unanimous view that he should be acquitted of the principal count of rape. This case illustrates the importance — and, it should be said, the potential difficulty — of ensuring that jurors understand this requirement.”

81. In Mourkakos v R [2018] VSCA 26, Whelan, Santamaria and Kyrou JJA summarised the relevant principles at [22]-[25] (my emphasis):

“[22]    In Stanton v R ,a majority of the High Court (Gleeson CJ, McHugh and Hayne JJ) stated that jurors are free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient. The majority also stated that a corollary of this freedom is that a judge cannot direct a jury as to the sequence of its deliberation and thereby impermissibly restrain it in the manner in which it might properly exercise its function. We will refer to this principle as ‘the principle in Stanton’.

[23]    Where an accused is charged with more than one offence, or there is a statutory alternative to a charge on the indictment, a judge may direct the jury about the sequence and manner in which its verdicts will be returned. However, a judge must not direct the jury as to the order in which it should consider the charges or the issues raised by each charge. Likewise, a judge cannot direct a jury that it must refrain from considering an alternative charge until it has completed its consideration of the primary charge. On the other hand, a judge can direct a jury that it cannot find an accused guilty of an alternative charge unless it has reached a unanimous verdict of not guilty on the primary charge.

[24]    One of the perceived risks of directing a jury to order its deliberations in the manner in which its verdicts will be taken is that the jury will start with the more serious primary charges and not consider — or not properly consider — any less serious alternative charges.

[25]    Where it is alleged that a judge’s direction has infringed the principle in Stanton, the impugned direction must be considered in the context in which it was given, including the issues as they emerged at trial, the other directions the judge gave the jury and the precise terms of any questions asked by the jury and the judge’s answers to those questions.”

Is an Amendment Required to the Directions Given to the Jury Concerning Alternative Verdicts?

82. The practical concern which moved me to invite submissions from the parties on 8 April 2022 involved the possibility that some of the jurors might be satisfied to the criminal standard of the belief element in the charged offence and others were not, but they were satisfied to the criminal standard of the recklessness element. Unless resort could be had to a mechanism which would allow the return of a verdict of not guilty of the charged offence and guilty of the first alternative offence based on recklessness, the outcome would be a hung jury and an aborted trial.

83. I accept the Crown submissions (at [48]-[55] above), supported by counsel for the Accused, that s.5.4(4) Criminal Code (Cth) does not assist to allow the jury in this trial to find the Accused guilty of the first alternative offence based on recklessness in those circumstances. Section 400.14 Criminal Code (Cth), and general law principles, do not permit this approach. It would be necessary for the jury to acquit the Accused on the offence charged in the indictment, before it would be open to the jury to find him guilty of an alternative offence by operation of s.400.14.

84. I accept the Crown submission that s.5.4(4) only operates when the accused person is standing trial for an offence involving alleged recklessness under s.400.3(2) Criminal Code (Cth).

85. In these circumstances, it is not necessary to consider whether the different pathways to conviction (if this approach was available) would trigger the requirement for an extended unanimity direction in any event, in accordance with the principles in Pratten v R [2014] NSWCCA 117 at [45]-[47] and Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) [2020] FCAFC 30; (2020) 387 ALR 225 at [76]-[83].

86. The submissions of the parties have assisted in clarification of the possible role of s.5.4(4) Criminal Code (Cth) in this trial, with the Court accepting the joint position of the parties that this provision has no role to play in the jury reaching a verdict at the trial, so that no amendment is required to the directions given to the jury concerning the alternative verdicts including a “no compromise” direction.

87. In this context, I have also considered the appropriateness of the directions given to the jury so as to guard against an approach which may dictate the approach of the jury in its deliberations.

88. Applying the principles in Stanton v The Queen and subsequent decisions referred to in this judgment (at [72]-[81]), and subject to any further application which may be made by the parties, I do not consider that directions given to the jury prevent them from considering the concept of recklessness until there is an acquittal on the charged offence. Rather, when considering the single live issue in the trial concerning the state of mind of the Accused, the jury is likely to consider the difference between “belief”, and the concepts of “recklessness” and “negligence”, which have been explained to the jury, in the context of possible alternative verdicts.

89. Subject to any further submission that may be made by the parties, I do not consider that the directions given to the jury concerning the alternative verdicts (see [25]-[31] above) operate to fetter the jury’s ability to conduct its deliberations in such a way as the jury sees fit. I observe that no submission has been made by the parties that the directions given to the jury involve any error. Indeed, the joint submission of the parties is that the directions given to the jury are correct.

Conclusion

90. It was for the reasons contained in this judgment that:

1. I declined to give a Mahmood direction concerning the fact that Reece Walsh was not called by the Crown as a witness at the trial; and

2. subject to any further application by the parties, I concluded that the directions given to the jury concerning alternative verdicts, including the “no compromise” direction, should stand.

[Postscript: On 21 April 2022, the Crown and counsel for the Accused indicated that no further submission was sought to be made arising from [88] and [89] of this judgment. Later on 21 April 2022, the jury returned a verdict of guilty of the offence charged in the indictment containing the element of belief].

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Amendments

21 March 2023 - Publication restriction lifted - judgment published.

Decision last updated: 21 March 2023