R v Kane

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 325 of 1999

THE QUEEN
	v.
GABRIELLE MARIE KANE

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JUDGES:	ORMISTON, CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22-24 May 2001
DATE OF JUDGMENT:	7 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 153

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CRIMINAL LAW – Intentionally causing serious injury – Whether alternative verdict of intentionally causing injury should have been left to jury having regard to course of trial and evidence against applicant – Whether principles in Gilbert v. The Queen (2000) 201 C.L.R. 414 applicable to charges other than of homicide – Whether evidence to support conviction – Whether directions to jury sufficiently clear as to applicant’s complicity in offence – Sentencing – Claim of disparity.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Miss M. Sexton	Ms Kay Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M. Croucher	Clarebrough Pica

ORMISTON, J.A.:

In this application, the issues raised by ground 4 have caused me serious concern. For the present it is sufficient to state that I gratefully accept the general statement of facts by Callaway, J.A. and his description of the issues raised by the other three grounds, as well as the conclusions which he reaches on them, so far as necessary for his decision.

Ground 4: Whether judge obliged to leave all alternative charges to the jury

What is here raised is the asserted obligation of trial judges to leave to juries every possible alternative verdict which may be open to them on the evidence in any trial on presentment. In the present case there was an “alternative” count left to the jury, that of recklessly causing serious injury, but it is now suggested that the jury should have been directed also as to the possibility of convicting on the two alternative charges under s.18 of the Crimes Act 1958 of intentionally causing injury and recklessly causing injury.[1] No complaint was made by counsel then appearing, nor was any mention made by him of the issue. Interestingly none of the counsel appearing for the other three accused involved in the vicious assault on the victim made any mention of the issue at any stage.
[1]No mention was made on this application of the possibility of the jury’s convicting on an alternative charge of attempting to cause serious injury intentionally, but on one view of the facts that would have been open, i.e. if the applicant was held responsible only for her attempt to cause injury by banging the victim’s head against the door handles.

For present purposes I accept that so far as the verdicts of murder and manslaughter are concerned, courts in this state are bound by High Court authority and recent authority of this Court to leave to the jury the alternative verdict of manslaughter on any murder trial where the facts leave such a verdict open. One can understand why the courts have wished to leave open to the jury the possibility of acquitting on a count of murder where the facts are consistent with their bringing in a verdict on the lesser charge of manslaughter, even though counsel for prosecution and defence had not sought to raise the possibility of such a verdict during evidence and addresses. The rule was devised when the only sentence for murder was hanging and was further developed largely during a period when the only sentence was life imprisonment. Moreover, the earliest cases where the principle was laid down arose out of circumstances where there was a failure to leave to the jury the “defence” of provocation[2], which by its operation reduces the proper verdict from murder to manslaughter. Although in theory a verdict of murder would deny the existence of circumstances giving rise to provocation (or any other “defence”), a jury would not have directed their minds to that issue unless it had been specifically raised before them. Thus in such a case it cannot be said that the accused might not have been convicted of the lesser offence of manslaughter, for it would not be sufficient that the judge correctly directed the jury as to the primary elements of murder, nor, in the absence of a direction as to provocation, could it be asserted that the verdict of guilt amounted necessarily to a finding of every essential element of that crime. Although all the primary elements would on the surface have been made out, the injustice comes about because of the failure to put a quite different issue to the jury which may have led to their qualifying their finding as to guilt. All this was forcefully and succinctly explained in the judgment of McHugh, J. in Gilbert v. The Queen[3]. Nevertheless, as McHugh, J. continued[4]:

“Where the issue that should have been left to the jury is not in substance a matter of confession and avoidance[5] and the factual elements of that issue are negatived by the verdict, … the general principle applies. That being so, in the present case, the jury could not as a matter of law, fact or conscience find the appellant guilty of manslaughter. The jury’s verdict negatives the essential facts that the appellant had to rely on to obtain a verdict of manslaughter.”

[2]See R. v. Hopper [1915] 2 K.B. 431; Mancini v. DPP [1942] A.C. 1; Kwaku Mensah v. The King [1946] A.C. 83 and Bullard v. The Queen [1957] A.C. 635, all discussed in Pemble v. The Queen (1971) 124 C.L.R. 107 at 117. See also Markby v. The Queen (1978) 140 C.L.R. 108, esp. at 113; R. v. Thorpe [1999] 1 V.R. 326 and R. v. Williamson [2000] 1 V.R. 58.

[3](2000) 201 C.L.R. 414 at 423-427, esp. at 423-424 para.[26].

[4]At 424 para.[27].

[5]E.g. where the issue, especially provocation, assumes that the accused intentionally caused the death of the deceased, but the “defence”, if not negatived by the prosecution, would lead to the lesser verdict of manslaughter.

Of course, McHugh, J. dissented in Gilbert, as did Hayne, J. Having regard to the views of the majority in that case, and more particularly to the line of authority which was carefully examined by Charles, J.A. in Thorpe and Williamson[6], it is not open to this Court to conclude that in a trial on a count of murder the judge is not obliged to direct the jury appropriately as to an alternative verdict of manslaughter, where on a reasonable view of the facts there is a basis for such a lesser verdict, regardless of the nature of the issue which might lead to that verdict and regardless of whether the accused or counsel raised the issue or wished it to be raised before the jury.[7]
[6]Esp. at 68 para.[45] and at 71-75 paras.[52]-[66].
[7]See Thorpe at 335 para.[49] per Winneke, P.

On the other hand, I do not feel compelled on authority to reach a similar conclusion in relation to charges other than murder. If it were necessary to do so, I might be prepared to agree that the logic of the authorities, including the qualifications which McHugh and Hayne, JJ. would espouse, would require a judge to leave to the jury a “defence” which is raised on the facts and which a jury’s verdict as to guilt might not effectively deny, in the sense that one could not be sure that by accepting the Crown case the jury had also accepted beyond reasonable doubt the absence of circumstances which would give rise to a “defence” not directly raised by counsel or judge. But where, in a case other than homicide, the jury brings in a verdict upon a basis of an accurate charge correctly identifying all the necessary elements which the Crown has to establish, I do not believe that this Court is yet compelled to set aside that verdict because all possible alternative verdicts (or even one such verdict) open on the facts have not been raised and put to the jury by the judge. For this purpose I prefer in substance the approach of the courts in New South Wales[8] to that of the South Australian and Queensland courts[9].
[8]See, e.g., Elfar (2000) 115 A.Crim.R. 64, and see below at paras.[22], [24]-[26] and [35].
[9]See, e.g., R. v. Benbolt (1992) 60 S.A.S.R. 7 and R. v. Rehavi [1999] Qd.R. 640, and see below at paras.[27]-[34].

I should add that, for present purposes, I see a significant distinction between cases in which an alternative verdict has not been put and those in which an alternative verdict has been put to the jury but about which the judge has given incorrect directions. There it may be over-simplistic in every case to say that the jury must have accepted those directions of the judge relating to the primary count and therefore the directions in relation to the alternative count should be always treated as irrelevant. For myself I would prefer to conclude that the potential confusion caused in those circumstances was essentially why the majority of the High Court came to their conclusion in Gilbert, and it would seem that the same approach had been taken by the Canadian Supreme Court in a case, which Gleeson, C.J. and Gummow, J. sought to apply, namely R. v. Jackson[10]. In the latter case McLachlin, J. concluded on behalf of the Court that[11]: “I am nevertheless left in doubt as to whether the jury was properly charged with respect to manslaughter”. In each case the issue of manslaughter was raised before the jury and discussed in the charge by the trial judge but in each case incorrect or inadequate directions were given. The issue therefore on each appeal was whether the misdirections caused the trial to miscarry. I am prepared to accept that, where a judge gives an incorrect direction as to an alternative verdict of which the jury has been made aware, then a question must arise as to the effects that may have had on the jury’s deliberations, bearing in mind that the jury will have attempted to apply the judge’s directions on each charge but will have been misled, to a greater or lesser extent, as to what they might find in relation to the alternative charge. That seems to me, with respect, to raise somewhat different questions, albeit rather more general propositions are stated in the judgments in both the High Court and the Canadian Supreme Court.
[10][1993] 4 S.C.R. 573.
[11]At 592.

It is not difficult to see why the rule when introduced was justified in relation to murder and manslaughter. Whatever is properly said about the capacity of juries to obey the judge’s instructions and to bring in appropriate verdicts based on the evidence after having been properly instructed, the consequences of a verdict of murder at that time were such that it was recognised that juries would, if they could, take a merciful approach in certain cases. That has always, illogically, been the basis for accepting that, notwithstanding that there is no evidence upon which it might properly be based, a jury is permitted to bring in a verdict of manslaughter although the facts, if accepted, would point only to a verdict of murder. It is unnecessary to set out judicial and other observations as to the strain placed on juries in such circumstances and their potential for compromise where they might see it to be fair. The potential imposition of a life sentence continues to the present day, of which juries must be well aware. Nevertheless, so far as lesser offences are concerned, it has been my experience, limited though it may be, that juries have almost invariably done their best to comply with directions given to them as to the law, although the complexities of the modern criminal law must now place enormous burdens on them. Moreover, juries, however ignorant they may be of the niceties of all offences in the criminal calendar, are generally well aware that there are two forms of homicide, murder and manslaughter, in this jurisdiction. Again, it is unnecessary to point to particular examples where that has been obvious, but in practice and as reported in many cases, juries frequently ask about the availability of a verdict on manslaughter, indeed as they did in Gilbert itself.

Further, it has been almost universally assumed that it is a disadvantage to the accused not to leave an alternative lesser verdict to the jury, but, although much has been said in many learned judgments as to the obviousness of the proposition, practice would suggest the contrary, or at least that the contrary may well apply in many cases. If one were to exclude those cases now exceptionally rare, where an accused appears on his or her own behalf in a murder trial, counsel is more than aware of the existence of the alternative verdict of manslaughter in a conventional trial for that offence. Occasionally a defect in analysis prevents counsel from believing that it is available on the facts and again one may point to Gilbert as a curious case where an effectively “retrospective” decision as to the application of the law in Queensland meant that counsel was wrong in his analysis by reason of a decision subsequently reached by the High Court. Again, on trials for lesser offences, although there are still instances of accused persons being unrepresented (which pose problems which need not here be addressed further), counsel are usually well aware of the available alternative verdicts.

Ordinarily it is counsel who decides that it is in his or her client’s best interests not to raise any alternative charge, such as manslaughter. Knowing what counsel does of any case, which is usually far more than that which the trial judge knows, because counsel almost invariably have instructions which go beyond that which appears in evidence, they believe that their clients will be at a disadvantage if alternative verdicts are left to the jury. If the prosecution do not seek to open any alternative verdicts and counsel for the accused likewise seek not to raise them, either in address or by asking the judge to deal with them in the charge, then, one may ask rhetorically, why should the judge intervene? I have yet to see a reasoned explanation[12] as to why counsel’s decision in such cases should not be given its proper weight. Occasionally, perhaps in the past, some counsel may have made that decision incompetently, but that is a different question and should be dealt with appropriately. All that is said is that counsel has made a tactical decision which should not, however, excuse the judge from giving appropriate directions relating to the alternative verdicts. That again seems to oversimplify the matter, for it is one thing for counsel to decide as a matter of tactics not to address on the subject of an alternative charge, it is quite another for counsel to argue that an alternative verdict should not be left to the jury or to fail to raise such a verdict with the judge.
[12]This issue has not been addressed, to my knowledge.

Why should one not assume that counsel has correctly decided not to raise an alternative charge and that in doing so he or she has concluded on the whole of the available information that the accused would be worse off if such an alternative were left to the jury? After all, whatever counsel might decide to include in an address, one would doubt that counsel would willingly and consciously expose his or her client to the risk of conviction for a primary offence, especially for a count of murder, if it was thought that the absence of directions as to an alternative verdict, whether manslaughter or a lesser offence, could place the accused at greater risk. A decision might fairly be made that to invite a jury to discuss the possibility of the lesser verdict would involve the jury in an elaborate re-examination of the evidence in such a way as might make it clear to them that the only proper verdict was of guilt for the principal offence. Moreover, there would seem little reason to believe that, if counsel thought that it was advantageous to the accused for the judge to leave the alternative verdict to the jury, he or she would not say so, and, indeed, if the judge overlooked leaving the issue to the jury, would not swiftly seek a direction on that issue if it were of any consequence. I would suspect[13] that in most cases counsel do discuss with the judge whether any, and, if so, what appropriate, directions should be given to the jury about any alternative verdict.
[13]From a reading of many transcripts in recent years, when the present issue seems to have assumed a greater importance.

There is, however, a further factor which I believe is frequently also overlooked. That factor is the unfairness of leaving to the jury a possible verdict which has not been opened and as to which counsel has chosen not to direct any relevant cross-examination, nor to lead appropriate evidence or make any address on the subject. Occasionally, when the jury does bring in such an alternative verdict, appeals have been brought on the ground of that unfairness and the issue addressed. One may give by way of example references to Varley v. The Queen[14]; R. v. Cameron[15]; R. v. Fitzpatrick[16]; and R. v. Quinn[17]. The first three cases were discussed by members of the New South Wales Court of Criminal Appeal in Quinn and all four by South Australian Full Court in Benbolt.[18] Apart from Varley the issue has arisen in relation to alternative counts in cases involving crimes other than murder and manslaughter, but unfairness in this sense seems rarely to have been discussed on an appeal against a conviction for the principal offence. Logically, if one believes that a jury may be deflected from its duty, there is no more reason to suspect that a jury will wrongly find an accused guilty of the principal offence when no alternative is left, than that it will, equally wrongly, bring in a compromise verdict on an unproved lesser charge, to prevent the accused’s getting off “scot free”.
[14](1976) 51 A.L.J.R. 243.
[15][1983] 2 N.S.W.L.R. 66.
[16](1988) 50 S.A.S.R. 10.
[17](1991) 55 A.Crim.R. 435.
[18]See the discussion of these five cases below at paras.[19]-[32].

It is hard to fathom why the accused should not complain of unfairness[19] when an accused has been convicted of a lesser charge, if counsel had deliberately refrained from raising that alternative charge and the judge has chosen to raise it, notwithstanding the failure of counsel specifically to raise it in the course of argument. Even if the matter is raised, it is also hard to see why a deliberate choice made by counsel should not be given proper recognition by the judge, for, if counsel chooses not to address arguments directed to the alternative charges for tactical purposes, the jury is left at large as to how they should decide the relevant issues, except to the extent that the judge at the end of the trial raises them in a necessarily neutral manner in the charge itself. Thus an accused may be found guilty of an offence where he or she has been given no fair opportunity to contest the issue, upon the hypothesis that the Crown has chosen not to open the alternative verdict, so that evidence would not have been directed towards a conviction on it. Nor is it satisfactory, as has occurred on occasions[20], for the judge to allow some supplementary submissions to be made after counsel have addressed or even after the charge. That would seem to give undue emphasis to the alternative count and tend to make it more likely that the jury would find the accused guilty at least on that alternative count. Of course, if the alternative counts must be left, then it would be preferable, as has been suggested from time to time[21], for the judge to raise the matter, either before the Crown opening or, perhaps more realistically, at the close of evidence before the addresses to the jury. But the critical problem will arise if the prosecution, within its rights, still refuses to raise or address on the alternative charges and counsel for the accused agrees or acquiesces or asks the judge not to allow the alternative charges to be raised. Should judges in those circumstances “plough on” and raise those charges for themselves? That would hardly seem fair.
[19]Cf. R. v. Pureau (1990) 19 N.S.W.L.R. 372, where the jury, after instruction from the judge, brought in a verdict of the lesser offence of attempted armed robbery.
[20]See, e.g., Varley.
[21]See e.g. Benbolt at 21 per King, C.J.

It is necessary to examine some authority as to what the correct approach of the Court should be in cases such as the present. There is a tension between observations made by judges of different courts, often depending on the nature of the particular offences charged and on the kind of verdict brought in by the jury. The direction and strength of those dicta often depend, so it would seem, on whether the jury has brought in the more serious or the less serious alternative verdict. As I have said, there would now seem not much dispute as to the obligation to put the alternative charge of manslaughter to a jury in a murder trial, regardless of the defence taken and regardless of the attitude of prosecuting and defence counsel both in their addresses and in submissions as to the course to be taken at the trial. Some judges have seen the principles in such cases as equally applicable to counts for lesser charges, while others have taken the opposite approach.

The principal difficulty, at least as it is exposed[22] by the authorities, is whether the question is governed by any “principles” (or perhaps by any practices which have hardened into principles), or whether it is to be resolved simply as part of the courts’ duty to ensure that the accused is given a fair trial, such fairness being ascertained by reference to what issues should properly be left to the jury. The matters I have so far discussed have been largely directed to what a judge should do if untrammelled by authority other than the obligation to ensure a fair trial. Nevertheless, as will be seen, some courts have resolved the issue by reference to other considerations which have required a more rigid prescription of practice, for example, the need to clear the presentment (or indictment) of all charges, including not only the stated counts but also all included alternative charges.[23] Others have seen the major difficulty, even assuming error at trial, in dealing on appeal with the verdict brought in and in particular in deciding whether the proviso in s.568(1) of the Crimes Act 1958 should be applied and by asking, in circumstances where the charge on the relevant count was accurate, whether there has been no substantial miscarriage of justice. The discussion which follows concentrates on cases where there has been no erroneous direction and where counsel has not sought to raise an alternative charge or to have it left to the jury.
[22]Sometimes, for better or worse, it has been “exposed” by an absence of discussion of principles or authorities.
[23]See e.g. the judgment of King, C.J. in Benbolt and the Canadian authorities discussed below at paras.[46]-[62].

Australian authorities – State court and earlier High Court cases

One may take first a decision of the Full Court of this State, not cited in argument, which to my knowledge has not been overruled, unless by implication. In R. v. Adams[24] an applicant was convicted of wounding with intent to do grievous bodily harm, but counsel on the appeal complained that the jury should have been directed that they were entitled to bring in a verdict of unlawful wounding. The Full Court said briefly that the jury were correctly directed as to the nature of the offence of which he was convicted and were likewise told that, unless they could find the necessary acts and intent, they should acquit him. In those circumstances the Court saw nothing in that “to vitiate the conviction”[25]. One may concede, however, that at that time, there was also a different approach to the failure to leave manslaughter to the jury at a murder trial: cf. Ross v. R.[26] and the subsequent decision by majority in R. v. Evans and Lewis[27].
[24][1932] V.L.R. 222.
[25]At 225.
[26](1922) 30 C.L.R. 246.
[27][1969] V.R. 858. Compare the treatment of Adams by the majority (O’Bryan and Little, JJ.) at 867 and that by the minority judge, Smith, J., at 882.

Mention should be made of two early decisions of the Court of Criminal Appeal in Queensland, in part because they were, or at least the first of them was, relied upon in later decisions, especially in that Court, and in part because the High Court, in hearing a special leave application from the second of them, seemingly disapproved the second of those decisions and implicitly disapproved the first of them. In the first, R. v. Short, Grealey and Plint[28], a verdict of burglary was set aside because of a failure to leave the lesser charge of larceny the Court there stating[29]: “The case was left to them as burglary or nothing. We think that this omission is in itself sufficient to amount to a miscarriage of justice and necessitates the ordering of a new trial.” No more was said as to why this conclusion was reached. In the second, R. v. Vella[30], the Court, by a majority[31], followed Short, qualified only to the extent that it held[32] that it was not necessary to leave the alternative charge in cases where the evidence would not justify a lesser verdict. Hart, A.J. did not accept that there was any such general principle, saying[33] that the verdict could only be set aside if there was a miscarriage of justice. The Court by majority substituted a conviction for common assault. More importantly, when the matter came before the High Court on an application for special leave to appeal on a number of grounds, that Court thought it appropriate to express in some detail its reasons for rejecting the application.[34] Latham, C.J.[35] said that the proposition laid down by the Full Court in Short “cannot be laid down as a universal rule”, although it was applicable in that case where there had been a misdirection as to the doctrine of recent possession in a burglary case. He went on to say[36] that he was “unable to see that any injustice was done to the accused because the jury were not told they could under a statutory provision find [the applicant] guilty of common assault”. Starke, J.[37] was even more blunt, saying:
[28][1928] St. R. Qd. 246.
[29]At 248.
[30][1938] St. R. Qd. 252.
[31]Henchman, J. and Graham, A.J.
[32]At 259, 265-266.
[33]At 262-263.
[34][1938] St. R. Qd. 289; 12 A.L.J. 102. The version in the Queensland Reports is more extensive.
[35]At 290.
[36]At 291.
[37]At 292.

“In my opinion the verdict of the jury ought not to have been set aside by the Court of Criminal Appeal. The only result of the argument in this case seems to necessitate, in my opinion, a restoration of that verdict.”

Dixon, J. said[38]:
“It appears to me there was no substantial question that the assault did not occasion bodily harm, or actual bodily harm as it is called in other codes, and therefore there was no issue to be put to the jury on that subject. I see no reason why the learned judge presiding at the trial should have directed the jury as to the possibility of their finding common assault.”

The authoritative nature[39] of what was said in Vella, albeit on a different but related issue, was recently recognised by the majority in Spies v. The Queen[40]. One must acknowledge, however, the cautious manner in which a number of the statements in Vella were made.

[38]At 292.

[39]Although these judgments were given on a special leave application, they were given at a time when leave applications almost invariably involved the full presentation of arguments and thus no separate appeal hearing.

[40](2000) 201 C.L.R. 603 at 611 para.[23], per Gaudron, McHugh, Gummow and Hayne, JJ.

I should also refer to a dictum of the Court of Criminal Appeal in this State, admittedly at a time when Evans and Lewis was accepted as good law[41], directed to a ground of appeal which asserted that on a count of maliciously inflicting grievous bodily harm the jury should have been directed that they might find the accused guilty of lesser offences such as occasioning actual bodily harm or common assault: R. v. Salisbury[42], frequently followed or cited with approval in other jurisdictions, see, e.g., R. v. Cameron[43]; R. v. Wilson[44] and R. v. Ireland[45]. The Court there said[46], of an argument very similar to that put forward in the present case:

“This is a somewhat paradoxical submission for an applicant for leave to appeal to make, for one would think that leaving alternative verdicts of conviction open to the jury would in most cases be calculated to reduce an accused’s chances of an acquittal.”

The ground was rejected on a number of bases, including the fact that the jury, having been properly directed, had found a verdict on the charged offence.

[41]See at 461.

[42][1976] V.R. 452, a decision of Young, C.J., Nelson and Harris, JJ.

[43][1983] 2 N.S.W.L.R. 66.

[44][1984] A.C. 242.

[45][1998] A.C. 147.

[46]At 453.

Looking at the matter from the other perspective, namely, that of courts reviewing convictions for less serious alternative offences, one may start with Kelly v. The King[47]. There the jury had the case presented to them as a case solely of murder and was so dealt with by both counsel in their addresses and by the judge in his charge to the jury. It was only after six hours that the foreman put a question to the judge which suggested that they might conclude that the accused’s acts were not wilful. After being told that they must, in order to convict, find the accused’s acts were deliberate and intentional, they were told to retire again. Thereafter the prosecutor suggested that the question indicated that they might find the accused guilty of manslaughter and that the jury should be charged accordingly, but the solicitor for the accused (counsel apparently then having become ill), said that manslaughter should not now be left to the jury as it had never been put to the jury to that stage. The jury was then briefly directed as to a verdict of manslaughter, shortly afterwards bringing in verdicts of not guilty on murder but guilty of manslaughter. Not only did the High Court find that the direction as to manslaughter was not appropriate or sufficient but in addition it said[48]:

“Moreover, it is clear that in the circumstances the accused was afforded no proper opportunity of defending himself against a charge of manslaughter. The prosecution was conducted throughout, until the jury were brought into court after six hours retirement, on the footing that the offence with which the accused was charged was murder and that alone. The charge of manslaughter was sprung on the accused in the absence, through illness, of his counsel, at a time when he had no opportunity of putting before the jury any defence he might have had to that charge as distinct from the charge of murder on which he was presented.”

The conviction was set aside and a new trial directed on that charge.

[47](1923) 32 C.L.R. 509.

[48]At 516.

The decision in Kelly was distinguished when the High Court next had to consider a similar problem, in Varley v. The Queen[49]. On this occasion the appellant had been represented by senior counsel but had sacked him on the thirty-fourth day of the trial. The appellant himself then addressed the jury for five days, but after his address the judge in the absence of the jury put to both the appellant and prosecuting counsel his intention to leave manslaughter to the jury, stating the evidentiary basis for his reason why he felt bound to do so, consistently with Mancini and other like authorities. It seems the judge was conscious of the difficulties for this accused but said that he should “in your interests put it to the jury, even though it runs counter to the line of defence that you have put up ... “. The accused said to the judge that he could only submit that it was “either murder or nothing”. However, the following day the prosecutor sought to and did address the jury generally on the case, admittedly an exceptional course to take, but said to be justified in the circumstances, and then the judge directed on both principal and alternative charges. Barwick, C.J., speaking on behalf of the High Court, said[50] that the judge had given the appellant the opportunity to deal with any matters of complaint raised by the prosecutor, but, as there was a possibility of a verdict of manslaughter, then: “If there were a basis in the evidence on which the jury, not being satisfied of all the elements of murder, could find manslaughter, he was bound to direct the jury accordingly. His duty in that regard cannot be controlled by the tactics or manoeuvring of the accused or of those representing him. So much clearly appears from the decided cases …”. He made reference to both Mancini and Pemble but said by way of justification for the course that had been taken[51]:

“The duty to give the appropriate direction is owed to accused and Crown alike, for if the evidence will bear the conclusion of manslaughter, in default of the jury’s satisfaction of all the elements of murder, the Crown is not to be denied a verdict nor the accused entitled to an acquittal.”

Moreover, he said[52] that he was “quite unable to perceive how the appellant was disadvantaged by not having the opportunity, if indeed having regard to the matters I have recited he had none, of addressing the jury on the question of manslaughter.” His Honour continued by distinguishing Kelly, saying that in that case, as manslaughter could only have been based on criminal negligence, it should have been the subject of a specific count of manslaughter. Moreover he said that in the ordinary case such as the one he had under consideration “the verdict of manslaughter is not in truth an alternative verdict”[53].

[49](1976) 51 A.L.J.R. 243.

[50]At 245.

[51]Ibid.

[52]Ibid.

[53]Ibid.

The learned Chief Justice in Varley in fact concluded that there was no injustice to the appellant in that case, but it is also significant that, even if there had been, there may well have been an answer to be derived from his observation that it was in the interests of both the accused and Crown and that the Crown was not to be denied a proper verdict in the circumstances. This view seems to have been reflected in some more recent decisions such as Rehavi[54].
[54]At 648.

After Varley there have been a series of decisions relating to charges other than homicide, in which the courts have considered whether it is appropriate to require judges to direct on alternative charges when not raised by prosecution and defence, points taken both on convictions for the primary offence and, on several occasions, on convictions for an alternative charge. There is in truth a conflict between these decisions which can be broadly stated inasmuch as the majority of South Australian and Queensland judges would appear to favour the view that a judge must direct on all alternative charges in every case, but in New South Wales judges have favoured a view that such directions are not essential in those circumstances, although there may be reasons for raising the question earlier or during the course of the trial.

In the circumstances it is necessary to refer to what was said in the decisions of the other State courts. The first of these more recent cases appears to be Cameron[55] when a verdict for a lesser alternative charge was brought in by the jury but the conviction was quashed for other reasons. There the New South Wales Court of Criminal Appeal concluded by saying[56] that it was “unwise for a trial judge to introduce these matters of his own initiative” at the end of the Crown case, for that “may in many cases produce an injustice to the accused”.[57]
[55][1983] 2 N.S.W.L.R. 66.
[56]At 71.
[57]Reference was made also to R. v. Solomon [1980] 1 N.S.W.L.R. 321, but that was a case where the issue related to the leaving of manslaughter, but the qualifications there expressed might be thought now to be inconsistent with the majority’s views in Gilbert. Likewise R. v. Hitchins and Elliott [1983] 3 N.S.W.L.R. 318, decided shortly after Cameron and which was discussed in Gilbert, concerned only the need to leave manslaughter to the jury in a murder trial.

In South Australia that decision was relied upon by Perry, J. in R. v. Van Bay Che[58], but his views were almost immediately either disapproved or doubted by members of the Full Court in that state in R. v. Fitzpatrick[59]. Jacobs and Bollen, JJ. said that the opinion of that Court on the question raised by Perry, J. would have to await another time, but Matheson, J. disagreed vigorously, stating[60]:

“It has always been accepted that a trial judge has a duty in his summing up to direct the jury as to any alternative verdict that is open on the evidence, even if such a verdict has not been mentioned by counsel in their final addresses, or even by the prosecutor in his opening address …”.

That was again a case where the jury had brought in a verdict on the lesser charge, but little further was said on the subject.

[58](1988) 50 S.A.S.R. 1.

[59](1988) 50 S.A.S.R. 10.

[60]At 11.

There followed three decisions of the Court of Criminal Appeal in New South Wales which dealt with the matter in a way similar to that adopted in Cameron. In the first, Pureau[61], the appellant was found guilty of an alternative charge of attempting to commit armed robbery. In allowing the appeal Hunt, J., with whom the other members of the Court concurred, stood by what had been said in Cameron and refused to accept the doubts raised in Fitzpatrick, saying[62]:

“The issue of alternative verdicts should be opened to the jury by the Crown. If the alternative verdict is not referred to them, it must be raised before closing addresses when the judge can rule whether the delay in raising it so late in the piece would be likely to cause injustice to the accused.”

He said it was possible that a judge might conclude that the late raising of the verdict would not prejudice the accused. “But it is difficult to imagine circumstances which would justify it being raised for the first time during the summing up, when neither counsel had had at least the opportunity of addressing upon it if they had wished to.”[63] There “fairness demanded that the appellant be told the nature of [the alternative] case before counsel addressed”[64]. The solution to each particular case is that the judge’s obligation to put an issue to the jury, which had neither been propounded nor developed by the Crown, “is one which arises only out of his duty to ensure a fair trial according to law, and … he must keep in the forefront of his mind … the fairness of such a course and, in particular, any tactical disadvantage which it may create for the accused.”[65]

[61](1990) 19 N.S.W.L.R. 372.

[62]At 376.

[63]Ibid.

[64]At 377.

[65]At 377.

Similar views were expressed a year later in Quinn, where the appellant had been convicted on both primary counts and one alternative charge. The latter charge was raised by the judge while ruling on a no-case submission. Priestley, J.A. (with whom the other members of the Court concurred) applied the earlier cases of Cameron and Pureau[66] and expressed the principle in these terms[67]: “when the possibility of the jury finding a verdict against an accused on a lesser charge than that in the indictment is raised for the first time by the trial judge in the course of the summing up, then the circumstances will be rare in which taking that course will not prejudice the accused”. Nevertheless, on appeal, the issue in each case will be whether the accused has been prejudiced. The time at which the alternative charge is first raised may have a bearing on the issue of prejudice. See also Walters[68].
[66]And also an unreported case of Keaton (1 June 1990).
[67]At 444.
[68](1992) 62 A.Crim.R. 16, where there was held to be no prejudice.

For practical purposes that concludes, to my knowledge, the line of reported cases in this country where complaint has been made that the jury’s verdict on an alternative charge has brought in only because of the judge’s decision at a late stage in the trial to leave that alternative to them. Before returning to what influence those cases have had on decisions strictly relevant to the present case, namely where there has been a failure to leave an alternative charge to the jury, I mention two English cases decided at about the same time which were cited to us in argument. In my opinion those cases are, however, irrelevant to the issues under consideration, except to the extent that those courts have insisted that an alternative charge should be left to the jury only if it is necessary in the interests of justice.[69] The cases were R. v. Fairbanks[70] and R. v. Maxwell[71]. In each case the complaint was that the judge had failed to leave to the jury an alternative charge when asked to do so by counsel for the accused. In the first case that led to a quashing of the conviction, but in the second, both in the Court of Appeal and the House of Lords, it was held that no injustice occurred in the circumstances. It will be seen, therefore, that any comments that the judges made in those cases, though properly based on what might be seen to be the justice of the case, were predicated upon an assumption that complaint had been made by counsel for the accused, not because the judge should have raised the matter uninvited.[72]
[69]To the same effect were a number of early decisions when the court refused to set aside verdicts: R. v. Vaughan (1908) 1 Cr.App.R. 25; R. v. Naylor (1910) 5 Cr.App.R. 19; R. v. Parrott (1913) 8 Cr.App.R. 186. The reasons are bare, as has been the discussion in Archbold over the years.
[70][1986] 1 W.L.R. 1202.
[71][1988] 1 W.L.R. 1265 (C.A.); [1990] 1 W.L.R. 401 (H. of L.).
[72]In Maxwell, there was a further complication in that counsel had also sought that burglary be left to the jury, but his submission had been rejected. The jury had asked if there was a lesser verdict they could bring in but the judge had said “No”, believing them to refer to burglary. But counsel had also asked that theft be left: at 408C.

I return then to the cases where the trial judge had omitted, though not requested, to leave an alternative charge (other than manslaughter) to the jury and the effect, if any, of the observations of the New South Wales Court of Appeal in the line of cases from Cameron to Walters. In Benbolt the appellant was convicted of indecent assault but complaint was made that the judge failed to leave a charge of attempted indecent assault to the jury, although no mention had been made of it during the trial. All members of the Court considered that the judge should have directed the jury as to the alternative charge, having first informed counsel of his intention to do so before addresses commenced. The majority (Perry and Duggan, JJ.) considered the failure to leave the alternative charge constituted a material irregularity and that it unfairly deprived the accused of a chance of acquittal on the primary offence. King, C.J. dissented as to this conclusion but explained in some detail why he thought the alternative charge should have been left. In essence he accepted the statements made by the judges in Fitzpatrick and disagreed with the views expressed in the New South Wales Court of Criminal Appeal. He held the rule relating to the leaving of the alternative verdict of manslaughter was not confined to murder trials and was merely an application of a general rule.

King, C.J. raised an issue which had only been mentioned in passing in earlier cases, namely that the doctrine of autrefois acquit provided a further consideration in favour of leaving all alternative charges to the jury, since in substance a verdict on the principal charge not merely cleared the presentment but cleared the accused of any alternative charges that could have been brought, unless there was in fact a partial verdict. He said that some judges had earlier placed incorrect reliance on the fact that the lesser charge could later be the subject of another prosecution and consequently he discussed the matter with learning and in some detail. I confess I am not greatly persuaded that it is of significance in cases of this kind. With great respect, the accused surely cannot complain of being effectively acquitted of other charges and, if the prosecution is concerned about the matter, it is always open either to include the relevant counts or to open them as alternative charges at the proper time, or otherwise to take the consequences. I do not agree that there is necessarily a public interest in leaving the charges open, for this ought, in the ordinary course of affairs, to be a decision for the prosecuting authorities. One may assume that, by reason of this doctrine, it is always open to a jury to bring in a verdict on a lesser charge if there is evidence to sustain it, but the question in cases such as the present (and where a jury has brought in a verdict on an alternative charge) is whether the verdict is unsafe and, to resolve that issue, whether it was necessary or fair (as the case may be) in all the circumstances to leave such a verdict to the jury. It is, with respect, no answer to say, as is perhaps suggested in both Varley and Benbolt, that it is in the public interest that a verdict be obtained on all possible and available alternative charges, for if the verdict is set aside on the basis of prejudice or unfairness, then the public interest may be served by directing a retrial at which all remaining alternative charges can be put. That can only occur, however, if the accused can fairly complain of prejudice, for, if the Crown does not seek to make a case on the alternative charges and the judge thinks it inappropriate to leave those charges to the jury, then the Crown has quite clearly has no right to seek a retrial on any charges.

It is another thing, as will be seen, to insist that the judge raise with counsel on both sides the possibility of alternative charges at the outset of the trial and yet another whether the judge can insist, against the urgings of prosecution or defence counsel (or both), that the alternative charges be raised as part of the Crown case or left to the jury. The latter dilemma is, in part, recognised by King, C.J. when, after citing Barwick, C.J.’s reference to the duty which is owed “to accused and Crown alike”[73], he said[74]:

“There is, however, an overriding obligation on the trial judge to ensure that the accused is accorded a fair trial. There may be situations in which the leaving of alternative verdicts to the jury would, having regard to the course of the trial, amount to a denial of natural justice."

However, almost paradoxically to my way of thinking, he concluded by saying on this matter that circumstances where the judge ought not to leave the alternative charges to the jury “should be rare”.[75]

[73]See above para.[19].

[74]Benbolt at 21.

[75]Ibid.

The rationale behind King, C.J.’s judgment seems to be that it is necessary in all cases to deal with all available alternative charges. Consequently, as he said[76], the accused “is required to come to trial prepared to contest all available alternatives which he does not admit”. The conduct of the accused’s case should embrace a defence to those alternative charges, upon the basis that the accused is “in jeopardy of conviction not only of that offence but also of the alternatives”.[77] It followed also that the prosecution case, if it provides a basis for those alternatives, ought in fact to open them to the jury but, if they arise only out of the way in which the evidence emerges, then “it is advisable for a judge to inform counsel before addresses as to the alternatives which he proposes to leave, particularly if they have not been canvassed in the opening.” His Honour disagreed with the views of the New South Wales courts that it was unwise to raise those alternative charges on the judge’s own initiative and concluded on this point[78]:

“There are strong considerations of justice and policy in favour of the disposal of all alternatives at the trial and the judge ought not lightly to take a course which would preclude consideration of an alternative to the offence charged. I consider that it is his duty to raise alternatives on his own initiative if there is a reasonable basis for them on the evidence, subject only to overriding considerations of fairness.”

Interestingly, however, the learned Chief Justice was unable in that particular case to see that the appellant had any basis for complaint, thereby following Ross and EvansandLewis.

[76]Ibid.

[77]Ibid.

[78]At 21-22.

Duggan, J., on the other hand, concluded[79] that the failure to leave the alternative verdict to the jury did result in an injustice in the circumstances and in that conclusion Perry, J. agreed with him[80]. They expressed broadly similar views as to what should be the appropriate approach in South Australia but their opinions were expressed somewhat differently. Duggan, J. agreed with the Chief Justice that[81] “as a general rule, the trial judge is required to direct the jury on any alternative verdict reasonably open on the evidence”. If it is not raised by the Crown then the judge should raise it with counsel before addresses, but his Honour accepted[82] that the general rule is “subject to the trial judge’s responsibility to ensure that the leaving of an alternative offence to the jury does not involve any risk of injustice to the accused”. He appeared to accept and apply the statement of Lord Roskill in Commissioner of Police v. Wilson[83], to the effect that, before leaving the possibility of an alternative to the jury, a trial judge must ensure that that “will involve no risk of injustice to the defendant and that he has had the opportunity of fully meeting that alternative in the course of his defence”. Although Duggan, J. cited Lord Roskill’s dictum, he seems, with respect, to have placed more weight on the consideration that a failure by a trial judge to leave an alternative is likely to deprive the accused of a chance of acquittal on the primary offence.[84]
[79]At 29-30.
[80]At 28.
[81]At 28-29.
[82]At 29.
[83][1984] A.C. 242 at 261.
[84]At 29.

I have some difficulty also with the observations of Perry, J. who described in some detail the difficulties arising out of leaving alternative verdicts, which he had first looked at in Van Bay Che and about which he cited several extensive passages from the judgments in Cameron, Pureau and Quinn.[85] Nevertheless he appears then[86] to have accepted the observation of Matheson, J. in Fitzpatrick set out earlier[87], by saying that “having regard to the authorities to which I have referred I would accept that [observation] as a correct statement of the law”. He then said that such a course should be followed only if it does not operate unfairly towards the accused.[88] Nevertheless he said[89] that “the accused’s right to a fair trial on the alternative is in no way inferior to his right to a fair trial on the express charge in the indictment. If circumstances arise which jeopardise his right to a fair trial on either, the trial judge should not shrink from taking the steps necessary to avoid a miscarriage of justice.” He agreed, however, with the Chief Justice that any alternative charge should be opened to the jury and that, if it is not opened, then the trial judge should draw the attention of the jury to that alternative before evidence is called. He did not think it prudent or sensible to raise the possibility of the alternative for the first time during a summing up, although he would not exclude that as a possibility. The significant matter in all three judgments is that there was no reference to the choice made by the prosecutor or by counsel for the accused or to the considerations which militate against putting charges to the jury which have been the subject of specific objection or which have not been raised at all.[90]
[85]At 24-25.
[86]At 25.
[87]See at para.[23].
[88]Ibid.
[89]At 27.
[90]A more recent South Australian appeal involved a murder verdict, so the Court sought to follow Gilbert without referring to Benbolt: see R. v. Gillard and Preston (No. 2) (2000) 78 S.A.S.R. 279, esp. at 288.

A similar approach was taken by the Queensland Court of Appeal in Rehavi, where a number of passages from Benbolt were cited with approval. This was a case where the jury had found the appellant guilty of doing grievous bodily harm with intent to do that harm and complaint was made of a failure to leave the lesser charge of doing such harm without intent. The appeal was allowed on a ground added at the suggestion of the Court of Appeal, notwithstanding that during the trial the prosecutor had successfully sought to present a fresh indictment for the more serious offence, apparently on the basis that counsel for the accused had acquiesced in that course because the trial judge had said that the verdict would be either guilty of the more serious offence or acquittal. The possible virtues of counsel’s tactical decision were not further discussed by the Court. It held that the trial judge was nevertheless under a duty to advise the jury their right to bring in the lesser verdict.[91] The Court reached its conclusion by applying Short and seemingly treating as of no consequence the High Court’s decision in Vella which it cited, referring however only to some of the observations of Latham, C.J. It would seem they preferred to take the view that since Pemble, and by reason of the observations of King, C.J. in Benbolt, there was “no logical reason for confining the reasoning to murder and manslaughter”[92]. There followed a discussion with extensive quotations from Varley, Fitzpatrick, Pureau, Benbolt and Fairbanks.[93] It seems that the quotations from Varley and Fairbanks were directed to establishing the proposition, which they then stated[94]:
[91]It may be observed, for what it is worth, that the more serious offence on which the appellant was found guilty carried a maximum penalty of life imprisonment in Queensland at the relevant time.
[92]At 644.
[93]So far as the latter case is concerned it was not observed that counsel had sought that the alternative be put to the jury.
[94]At 648.

“There is a public interest in a fair trial and a jury ought to be permitted to return any verdict available on the evidence if that is consistent with justice to the accused. To shut the jury out from the lesser verdict compromised the verdict given.”

Notwithstanding the tactical decision taken by appellant’s counsel at the trial, they concluded[95]:
“There was, in our view, a real risk that the jury, being persuaded that the appellant had inflicted serious injury on the complainant, and without compromising their oaths, were prepared to infer the necessary intent rather than acquit him altogether. The appellant has thereby been deprived of the opportunity of a verdict on the lesser offence.”

Allowing the appeal they substituted a verdict of the lesser offence. I confess, with the greatest of respect, that I do not understand how the jury could be said wrongfully to have inferred the necessary intent rather than acquit “without compromising their oaths”. If it was meant that, in the absence of an appropriate direction as to the lesser charge, they may not have seen the necessary difficulties in inferring the relevant intent, surely the vice lay in their doing so without applying the necessary criminal standard, in breach of their duty. The difficulty is, as ever, in accepting that the jury may have been swayed by extraneous considerations, such as the possibility that the accused might get off scot-free, to reach a verdict which was unfair to the accused. The inference in each case in which the ground has succeeded is that the jury may have reached a compromise verdict, in breach of their sworn obligations, in order to find the accused guilty of the particular offence, being in the

circumstances the only offence with which the accused was charged. Otherwise I am unable to perceive that there is any injustice.

[95]Ibid.

Rehavi was followed recently by the Court of Appeal in Queensland in the cases of R. v. Robert Chan[96] and R. v. Willersdorf[97]. In Chan the appellant was relevantly convicted of burglary at a trial where the alternative verdict of theft was not left to the jury. Pincus, J.A. said[98] that, notwithstanding that counsel did not ask for the alternative verdict to be left nor complain as to the judge’s failure to leave it, Short and Rehavi should be applied, as the verdict was open on the facts. The passage[99] he cited from Rehavi referred both to the public interest and the willingness of juries to infer the necessary intent for the serious charge, but he conceded that Rehavi was not authority for any view that lesser verdicts must always be left, presumably upon the assumption that the practice must be confined to cases where there is a factual basis for the lesser verdict. A verdict of theft was substituted, but that outcome does not seem to have been disputed. Those conclusions were agreed in by Davies and Thomas, JJ.A.
[96][2000] QCA 357.
[97][2001] QCA 183.
[98]At paras.[6]-[8].
[99]Rehavi at 648.

In Willersdorf the Queensland Court of Appeal appears to have expressed itself more cautiously on the subject generally. Again there was a verdict (robbery with violence) at a trial when the lesser count of robbery had not been left to the jury. This time, however, there seems to have been a very thin basis for the alternative verdict. Nevertheless, Thomas, J.A., with whom McPherson, J.A. and Chesterman, J. concurred, commenced by stating[100]:
[100]At para.[17].

“The rules concerning presentation to the jury of alternative verdicts are not prescriptive. They are governed by the trial judge’s duty to ensure a fair trial according to law.”

He continued[101] by stating that the primary obligation was to see “that the trial was conducted according to law” and that that does not require the presentation of every defence for to do so “might tend to obfuscate the true defence”[102]. He pointed out[103] that “Defence counsel commonly asked that not too many alternatives be placed before the jury for this very reason. The selection of the live issues depends on the evidence in the particular case.” His Honour was prepared to see a difference in the way in which alternative verdicts had been left in murder counts, observing[104]:
[101]Ibid.
[102]At para.[18].
[103]Ibid.
[104]At para.[19].
“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.”[105]

His Honour appeared to qualify Rehavi by emphasising that the requirement stated in that case was that an alternative verdict should be left if that was “consistent with justice to the accused”.[106] That expression, he continued, recognised “that there are situations such as a true ‘all or nothing’ case, where the offering of conviction on a lesser charge might jeopardise the accused’s chance of complete acquittal”. Stating that he was thereby following not only Rehavi, but also Benbolt and Pureau, he reached this conclusion[107]:

“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.”

Having regard to the facts, the verdict was not set aside. With respect, his Honour’s more practical approach to the potential difficulties avoids many of the problems thrown up by the earlier, more dogmatic statements of the Court.

[105]Thereby Thomas, J.A. distinguished Gilbert which by then had been decided.

[106]At para.[20].

[107]Ibid.

To return to the most recent New South Wales decision concerning alternative charges to counts other than homicide[108], Elfar, it is clear that the members of that Court (Mason, P., Sully, Sperling, JJ.) preferred the reasoning of McHugh, J. in Gilbert and other earlier authorities.[109] With great respect, some of their comments would treat the majority approach in Gilbert as having little authority and can only be explained by their confining the High Court decision to homicide cases. Although Mason, P. would see[110] Pemble as extending “beyond the field of murder/manslaughter”, he expressed strong reservations about Rehavi. However, he stated[111] that the cases discussed in Rehavi “seem to accept that there is an element of judicial discretion involved” but commented that, if that be so, he had “real difficulty in seeing what principles underlie it.” Sully, J. likewise saw[112] Rehavi as impractical and would confine it so that the judge’s charge should “fairly reflect the issues which arise on the evidence”. He concluded[113]:

“When the technical refinements of the decisions in Gilbert and Rehavi have been mined to exhaustion, I am wholly unpersuaded that there was a miscarriage of justice to this appellant.”

Although I have considerable sympathy with the views expressed by Sully, J., I fear, with respect, that he may have misunderstood the disapproval in the joint judgment in Gilbert of earlier authority, especially of Hitchins and Elliott. He said[114] that nothing in Gilbert was “apt to cast doubt” on that case, but on my reading of the joint judgment[115] they showed strong preference for the Canadian case of Jackson and implicit disapproval of the earlier New South Wales judgment. Sperling, J. expressed[116], in briefer and even more pungent terms, his agreement with the other members of the Court and his irritation with recent authority. Distinguishing homicide counts, he said[117] that the approach in the other cases “smacks of an invitation to convict of a lesser offence”, which was to be “discouraged rather than facilitated”. If accepted, it would require “that a veritable cascade of lesser offences would have to be left to the jury”[118]. This, he suggested, would lead to lengthening of trials and “distraction of juries from the real issues”, so that “the futility of the exercise, in many cases at least, is also obvious”.

[108]There is a brief discussion of the appropriate verdicts in murder in R. v. Phan [2001] NSW CCA 29.

[109]Such as Evans and Lewis and Hitchins and Elliott.

[110]At 65.

[111]At 66.

[112]At 70.

[113]At 71.

[114]At 70.

[115]Gleeson, C.J. and Gummow, J. at 419 paras.[9]-[11] and at 421-422 paras.[18]-[20].

[116]At 73.

[117]Ibid.

[118]Ibid.

It is necessary to examine only one of the West Australian authorities on this subject, since all were decided without reference to the differences in approach which I have just discussed. However Spratt[119] was relied on by Callinan, J. in his judgment in Gilbert.[120] In Spratt, the Court of Criminal Appeal applied Evans and Lewis while observing that in certain cases there may be a need to direct the jury in relation to alternative charges.[121] Pidgeon, J. thought that, if the other counts had been left, the trial “could well have become unbalanced by reason of the detail of law and possible minor nature of the facts involved”[122]. In the result the appeal was dismissed. In a later case, Jensen[123], involving charges of sexual penetration, Pidgeon, J.[124] also stated that there was “no universal rule” that the judge was

obliged to refer to alternative verdicts and that it “must depend on the particular circumstances of the case”.[125] Similar views were also expressed in Robinson[126].
[119](1982) 8 A.Crim.R. 361.
[120]At 439 para.[92]. With respect, Spratt seems inconsistent only with the widest propositions in Ross and was very different from Gilbert.
[121]At 362.
[122]At 372.
[123](1991) 52 A.Crim.R. 279.
[124]At 285.
[125]See also Walley (30 May 1991, unreported, Court of Criminal Appeal, W.A.).
[126](1991) 56 A.Crim.R. 136.

The conclusion to be drawn from this examination of Australian authorities,[127] excepting for the present Gilbert, is that there seems to be no universal practice, let alone any principle upon which it has been resolved whether alternative charges should be left to the jury. Doubtless what has primarily moved the courts has been a desire to ensure that the accused is given a fair trial, but how that is to be achieved has drawn different, often inconsistent, responses.
[127]See now also R. v. Le Doan [2001] VSCA 142, esp. per Charles, J.A. at paras.[23]-[37], which I do not believe is substantially inconsistent with this judgment.

The application of Gilbert

It is necessary now to see whether the reasoning of the majority in Gilbert was intended to extend wider than to cases of homicide. For present purposes I shall concentrate on the judgment of the Chief Justice and Gummow, J. Two aspects led to their conclusion: one, that a jury should always be directed as to the possibility of bringing in a verdict of guilty on the lesser charge of manslaughter, if the facts are capable of sustaining such a verdict; two, upon this hypothesis, that, even if the jury has been correctly directed as to the more serious charge of murder, the absence of a correct direction as to the lesser charge will ordinarily mean that the verdict must be set aside and the proviso not applied, on the basis that the Crown cannot establish that there was no miscarriage of justice. In particular they rejected[128] what had once been seen as the conventional approach, as might have been gleaned from Ross, Evans and Lewis and Hitchins and Elliott, that, if the jury were correctly charged on the primary count, then a verdict on that count would not ordinarily be set aside. In practical terms there did not seem to be much dispute that, if the facts supported it, on a trial for murder the jury should be directed as to the possibility of bringing in a verdict on the alternative charge of manslaughter.
[128]At 419-420 paras.[9]-[12].

The real issue in Gilbert was whether, in the absence of a proper direction as to such a charge, the verdict of murder had led to a miscarriage of justice.[129] It was here that the role of the jury was seen in the joint judgment to be critical. Their Honours introduced the issue by taking a passage from Lee, J.’s judgment in Hitchins and Elliott[130] to the effect that “the giving of a verdict that in fact represents the jury’s view as to what is the proper verdict on the evidence put forward can never be regarded as an unfairness to the accused”. Of this they at first observed[131]: “As will appear, the Supreme Court of Canada has taken a different approach.”
[129]Cf. the joint judgment at 416, para.[1], McHugh, J. at 423 para.[23], Hayne, J. at 429 para.[45] and Callinan, J. at 436 para.[79].
[130]At 262: see Gilbert at 419 para.[10].
[131]At 419 para.[11].

The next few paragraphs of the judgment[132] are devoted to showing that, although the criminal justice system “requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges”, that “does not involve the assumption that their decision-making is unaffected by matters of possible prejudice”.[133] References to Mraz v. The Queen[134] led to their suggesting that in homicide cases there were often factors which induced jurors to take “a middle course”[135], or at least so it was asserted. The comment was introduced by a reference to the death penalty’s influence at the time Mraz was decided but was brought up-to-date by their saying that there were now other “perhaps equally influential realities”, noting that this is “an age of concern for the victims of violent crime and their relatives”.[136]
[132]Paras.[12]-[17].
[133]At 420 para.[13].
[134](1955) 93 C.L.R. 493.
[135]Mraz at 513 and Gilbert at 421 para.[17].
[136]Ibid. Of this I am, with respect, not so sure. The “Gun Alley” murder which led to the prosecution of Ross was just as notorious in Melbourne at that time and for some time thereafter: see Ross at 261 and [1922] V.L.R. 329 at 337 (F.C.).

It was at this point that Gleeson, C.J. and Gummow, J. called in aid the Canadian decision in Jackson. It was a case with remarkable factual similarities, in part because it raised similar questions of complicity under code provisions expressed in not dissimilar terms, and in part because the course of the trial was similar. In each case there were in fact directions given as to manslaughter but in each the judge had told the jury that the appellant could not be found guilty of manslaughter, at least in the circumstances of each case. In Gilbert the error had come about because the trial judge applied an earlier Full Court decision in that State which was later overruled in Barlow v. The Queen[137], so that there had been no argument on behalf of the appellant that manslaughter should have been left to the jury in those circumstances.[138] In Jackson there had been at trial a misconception as to the precise circumstances in which the appellant could have been found guilty of manslaughter, which was exposed in the course of the complex reasoning of both the Ontario Court of Appeal[139] and of the Supreme Court. The trial judge in fact left manslaughter to the jury, although he said that such a verdict was unlikely, but no objection was taken to that comment. Having concluded that the judge should have made clear to the jury that a verdict of manslaughter could have been brought in against the appellant, whatever verdict they reached as to the guilt of the co-accused, the Supreme Court turned to the application of the proviso in the Canadian Criminal Code. The Canadian Supreme Court, therefore, upon the basis that the ground for a verdict of manslaughter was not clearly and correctly put to the jury, denied the application of the proviso by saying that they were “not satisfied that it is clear that a jury, properly instructed, would necessarily have returned a verdict of second degree murder” against the appellant.[140] So they concluded that they could not be “certain” that, if the alternative charge[141] had been correctly put to the jury, “the verdict might not have been different”, notwithstanding that they had been correctly instructed as to murder.[142]
[137](1997) 188 C.L.R. 1.
[138]It also meant that absence of complaint was irrelevant in the circumstances.
[139](1992) 68 C.C.C. (3d) 385.
[140]At 593.
[141]In Canada described as an “included” charge or offence.
[142]At 593-594.

But what was the proper significance of the citing of the Canadian case in the joint judgment in Gilbert? Primarily, as I would see it, to deny the respondent’s case that the verdict and conviction could be saved by the proviso under the Queensland Criminal Code. Moreover the object in each case was to deny that the verdict for murder, though the subject of entirely accurate directions from the trial judge, could be relied upon to support a contention that there could have been no miscarriage of justice. For the following reasons, one may also see the citation as intended in the joint judgment to demonstrate that a jury’s verdict in such circumstances is unreliable, so as to deny the approach described earlier in the judgment adopted by courts in cases such as Ross, Evans and Lewis and Hitchins and Elliott. The passage cited from Jackson commenced in these terms:[143]
[143]Jackson at 593 and Gilbert at 421-422.

“It is true that the trial judge charged the jury clearly and correctly on the mental state required to find [the appellant] guilty of murder. It is also true that the jury found [the appellant] guilty of murder. Nevertheless, I agree with the Court of Appeal that one cannot be satisfied the verdict is just, given the failure of the trial judge to set out the basis for convicting [the appellant] of manslaughter under s.21(1) and (2)[144] and the absence of any instruction that a party may be guilty of manslaughter even though the perpetrator is guilty of murder.”

In support of this, and included in the passage cited in the joint judgment in Gilbert, McLachlin, J. for the Supreme Court then cited[145] a passage from Lord Tucker’s judgment in Bullard v. The Queen[146] as follows:
“Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.”

To this McLachlin, J., as cited in the High Court, added the comment:[147] “I cannot but conclude that Lord Tucker’s admonition has not been followed in this case and the issue of manslaughter was not properly left to the jury.”

[144]Of the Canadian Criminal Code RSC 1985.

[145]Jackson at 593.

[146][1957] A.C. 635 at 644.

[147]Jackson at 593.

It will be noted that in the passages cited from Jackson there is no direct reference to the unreliability of a jury’s verdict in such circumstances, merely that one should not speculate as to what might have occurred if a correct direction had been given. There would seem little doubt, however, having regard to the course of argument in the High Court that the passage was intended to support reasoning previously set out in the joint judgment and reflected in the judgment of Callinan, J. that, even if the jury had been correctly directed, the Court should not conclude that their verdict should be treated as sacrosanct, as in effect the minority held. The joint judgment had earlier[148] analysed Mraz in particular and, after citing passages from judgments in that case observed[149]:

“These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences.” (Emphasis added.)

The next paragraph, before the Court came to Jackson, dealt with the “contemporary realities” and the possibility that a jury might take “a middle course”, referred to above. Thus it is not unreasonable to conclude that the majority of the High Court in Gilbert[150] considered that, where manslaughter is open on the facts and the jury has been incorrectly directed as to that alternative to a verdict of murder, a jury’s verdict founded on unexceptionable directions as to murder is not necessarily to be upheld as not constituting a miscarriage of justice for the purpose of the proviso. It is another question whether the reasoning of the joint judgment can be extended to other counts and the failure to direct the jury about other kinds of alternative charges. I would, however and with the greatest of respect, be loathe to press arguments as to the unreliability of jury verdicts any further than is absolutely necessary.[151]

[148]Pages 420-421 paras.[13]-[17].

[149]At 421 para.[16].

[150]Callinan, J. reached essentially the same conclusion, concentrating on the admitted error as to a manslaughter verdict and concluding that it was not inevitable that, properly instructed, the jury might have reached the same conclusion. See at 440-442 paras.[94]-[102].

[151]Any judicial doubting of jury verdicts may impinge in the public mind not only on verdicts of guilt but also on verdicts of innocence.

For this purpose it will be desirable to look at what precisely the Canadian Supreme Court was determining in Jackson. One might be forgiven, having regard to the form which the quotation from Jackson took in the joint judgment in Gilbert, for thinking that the critical point as to the unreliability of verdicts in such circumstances was reflected in the passage cited from the judgment of Lord Tucker in Bullard. That passage emphasises that a failure to leave manslaughter to a jury makes it “idle to speculate” what the jury would otherwise have decided. Bullard, however, was a case of relatively limited application. It was decided entirely consistently with Hopper, Mancini and Kwaku Mensah, as well as R. v. Roberts[152], and concerned a trial where there was a wrongful failure to leave provocation to the jury. A verdict of murder reached in those circumstances would not satisfy even the more limited test preferred by McHugh, J. and Hayne, J., for a finding of murder would in no circumstances bring with it a conclusion that the jury had negatived the claimed provocation in cases of that kind. As was said by Lord Tucker[153], the evidence of the alleged provocation “might have left [the jury] in reasonable doubt whether the prosecution had discharged the onus which lay on them of proving that the killing was unprovoked.” That, in my opinion, was why his Lordship continued by saying that to deprive the appellant of his right to have that issue of manslaughter left to the jury must have constituted a grave miscarriage of justice, for it was likewise impossible to speculate what the jury might have said about that “defence”.
[152][1942] 1 All E.R. 187.
[153]At 643.

Canadian authorities

Now both the Supreme Court of Canada and the High Court were using the quotation from Bullard in a different context, namely, where a verdict in manslaughter could not have resulted from any claim to provocation, but in more general circumstances where manslaughter was an available verdict and where, in both cases, the jury had been effectively misdirected as to that subject. Whether the quotation was adopted deliberately for that wider purpose or not is by no means clear, for the discussion in the Canadian case arose in circumstances where the application of the proviso appears to have been merely incidental to the principal issue in the Supreme Court.[154] Indeed, the question “whether s.686(1)(b)(iii) of the Criminal Code applies” was dealt with in one brief paragraph at the very end of the judgment in terms which I have already described.[155] The passage cited by the High Court in fact came within the Supreme Court’s discussion of “Manslaughter and its Application in this Case”[156], McLachlin, J. stating earlier[157] that two issues only arose on the appeal, one relating to the principles governing manslaughter and the other as to whether the charge conformed with those principles. As appeared in the final sentence of the quoted passage McLachlin, J. concluded[158] that “the issue of manslaughter was not properly left to the jury”.
[154]As will be seen below, the argument was well and fully dealt with by the Ontario Court of Appeal.
[155]At 593-594: see end para.[42] above.
[156]At 581.
[157]At 578.
[158]At 593: see end para.[43] above.

Oakley saw Ranieri wield a pair of scissors, which she proceeded to use to cut off Oakley’s hair. Rogers entered the room and joined in, kicking Oakley in the ribs. Oakley was screaming. Ranieri said, “If you don’t shut your fucking mouth I’m going to shove these scissors right up your cunt and your arse, you thing.” Oakley felt her pants being pulled down, at which point the punching and kicking stopped. The defendants other than the applicant grappled with her as she struggled to prevent them from pulling down her pants. The kicking and punching resumed and Oakley was aware that she was bleeding profusely. She said that she was being restrained by Carter and Ranieri and Rogers was kicking her. She broke free and ran towards the door, where her escape was blocked by two other prisoners, Heaney and Watson. They said to Oakley, “You realise Emma’s going for sentencing tomorrow because of you, you dog.”

At that stage the applicant came up from behind, grabbed Oakley by what was left of her hair and started pounding her head into the nearby cell door-handles while the others stood by watching.

Ranieri walked Oakley into the bathroom and a cold bath was run. Two other prisoners undressed her and put her into the bath. One prisoner obtained clean clothes for Oakley and took away her soiled clothes. Ranieri said, “You realise if you wag on us you’re going to cop it ten times worse down in protection, don’t you?” Ranieri bandaged Oakley’s left arm. Oakley dressed and returned to the A3 unit without further interference. There the prison officer with whom she had spoken earlier in the day saw that she was distressed and screaming. She had a large lump on her forehead and facial injuries. Upon lifting Oakley’s top, the prison officer saw a stab wound near her right shoulder-blade. At the trial Oakley said she did not know who stabbed her or when.

Oakey was taken to the Western General Hospital, where she was examined by a Dr Rosengarten. Her injuries included extensive bruising and lacerations to the head, face, limbs and upper body; a stab wound to the back, which had penetrated the chest cavity and caused a collapsed lung; two deep lacerations to the right arm, which required suturing; and extensive blood loss. After undergoing emergency procedures she was transferred to the Intensive Care Unit.

Grounds 1 and 2 were argued together. They have their genesis in a submission that counsel for the applicant at the trial made during a break in his closing address. He said that he was troubled as to whether or not count 1 could be made out. (He did not refer to count 2, but similar reasoning would apply.) There was, he continued, a fatal problem with that count as it affected his client. The judge invited counsel to outline his submission point by point and the following exchange took place:

“COUNSEL:… It’s the basis of the concert to cause serious injury. The serious injury was opened by the Crown, and correctly in my submission, as being either the combination of all the injuries or the stab wound on its own could amount to a serious injury; and I agree with both of those things. But …
HIS HONOUR: Yes, but the injuries, apart from the stab wounds, could be serious injuries.
COUNSEL:That would be a matter for the jury, yes. I am not suggesting that that wouldn’t be a matter for the jury.
HIS HONOUR: Yes.
COUNSEL:But the way in which the Crown opened the serious injury was in relation to the stab wound …”

There is, of course, a distinction between saying that the serious injury was either the combination of all the injuries or the stab wound on its own, which is the way in which the Crown had opened its case, and saying that the serious injury could be the injuries apart from the stab wound. (Although the transcript sometimes refers to “the stab wounds”, I shall not do so, because it is clear that what was meant was the wound to the victim’s back, which penetrated her chest cavity and caused a collapsed lung. I have emended ground 1 accordingly.) It will be observed that counsel accepted that the “injuries apart from the stab wound” hypothesis would be a matter for the jury.

A little later the following exchange took place:

“HIS HONOUR: … I’ve considered this problem and I think they could convict of this without the stab injuries altogether, they could convict. And I think I will separate out the two possibilities for the jury but I don’t think it is a case for a submission.
COUNSEL:No, it’s just – I understand what Your Honour says, and I think that the law as it stands in relation to serious injury, all of those bruises combined and the like.
HIS HONOUR: Yes.
COUNSEL:I would be submitting, I suppose, right at the bottom end of the serious …
HIS HONOUR: And the …
COUNSEL:… bruising and abrasion to the neck, which didn’t go further than that. I would be submitting that it would have to sit at the lower end of the range if they could be regarded as serious injuries, but …
HIS HONOUR: Yes, well, that’s a matter for the plea if there’s ever a plea.
COUNSEL:Yes. But the concern is so – I am not submitting that that material could never amount to a serious injury in the mind of a proper jury such that the point would run in that way, but it’s the difficulty that that’s the way the Crown has opened the serious injury, that it is the puncture wound and the like, and therein lies the difficulty but if Your Honour is to draw those strands out, it’s a very short point, and Your Honour’s obviously against me on it.”

When the judge came to “separate out the two possibilities for the jury” in the charge, as he had said that he would do, the distinction his Honour drew was between the stab wound on its own and the combination of injuries apart from the stab wound. No exception was taken, so the jury were ultimately invited to consider the case on that basis.

It is an important distinction. It means that grounds 1 and 2 as argued would not result in a judgment and verdict of acquittal. Assuming in favour of the applicant, but not deciding, that the jury could not be satisfied to the requisite standard that she was responsible for the stab wound, there would still be another basis (the combination of injuries apart from the stab wound) on which it was conceded they might properly convict. [217] It would not be a case like M. v. R.[218], where the jury should have acquitted the applicant and the Court of Appeal accordingly directs a judgment and verdict of acquittal to be entered. It follows, in view of the conclusion I have reached on ground 4, that there is no need to consider grounds 1 and 2 any further, for my conclusion on ground 4 would itself lead to a retrial. The shift in the trial from the distinction drawn by the prosecutor in her opening to the distinction drawn by the judge in his charge will also prove important when we come to ground 4.
[217]Compare R. v. Dolheguy [2001] VSCA 50 at [84]. For the same reason, we should decline counsel’s invitation to substitute a lesser verdict pursuant to s.569(2) of the Crimes Act 1958.
[218](1994) 181 C.L.R. 487.

Similar considerations apply to ground 3, which was founded on two parts of the charge in which his Honour explained the various hypotheses on which the Crown case depended. It is unnecessary to set them out, or to consider the extent to which the criticisms were justified, for it was not suggested that success on this ground would lead to a result other than a retrial. The charge at the new trial will be framed by reference to the evidence at that trial and counsel on both sides, familiar with the argument in this Court, will no doubt make appropriate submissions and, if necessary, take relevant exceptions. I observe that no exceptions corresponding with the criticisms advanced under cover of ground 3 were taken below.[219]
[219]See R. v. Wright [1999] 3 V.R. 355.

Ground 4 pleaded that the judge erred in failing to leave to the jury intentionally causing injury and recklessly causing injury. That is to say, although the applicant was expressly charged with an offence against s.16 or 17 of the Crimes Act 1958, his Honour did not advert to the possibility of an alternative verdict under one or other of the limbs of s.18.[220] He was not asked to do so, but Mr Croucher submitted that that would not avail the Crown if, as he contended, the applicant had thereby been deprived of a chance of acquittal that was fairly open to her. So much may be accepted. Importantly, this was not a case where forensic judgment could account for the omission to ask for a direction and Miss Sexton did not so contend.
[220]Crimes Act 1958, s.421(2).

In the context of homicide, in the sense of murder or manslaughter,[221] the law is relatively well settled. As Charles, J.A. said in R. v. Williamson[222]:

“It is well established that if any view of the facts proved in a trial for murder might reasonably reduce the crime from murder to manslaughter, it is the duty of the judge in summing up to the jury to deal adequately with that issue and to direct the jury to consider the alternative verdict; and the fact that the alternative case was not mentioned by defence counsel does not relieve the judge from the duty of doing so: Mancini v. Director of Public Prosecutions; Pemble v. R.; Varley v. R.; R. v. Schneidas. These and other authorities leading to the same conclusions were recently discussed in this court in the context of an issue of provocation in R. v. Thorpe. The cases establish that in an appropriate case the judge is obliged to put the issue of manslaughter to the jury no matter what course is followed by the defence, even if, say, a defence such as provocation has been expressly disavowed by the defence. Another way of expressing the obligation of the Crown and the court is that it is necessary for the Crown to exclude beyond reasonable doubt all reasonable views of the facts which are consistent with innocence of murder: R. v. Koutsouridis. On the other hand, if on no view of the evidence which might reasonably be adopted would the crime amount to manslaughter and not murder, and counsel for the accused has not suggested to the jury the possibility of manslaughter, the judge is under no duty to inform the jury that it is within their power to find manslaughter unless the jury ask a question on the subject, in which case it will usually be the judge’s duty to inform the jury that upon an indictment for murder it is within the province of the jury to find a verdict of manslaughter: Ross v. R; Beavan v. R.; Markby v. R.; R. v. Holden.” (Footnotes omitted.[223])

[221]Compare R. v. Fairbanks [1986] 1 W.L.R. 1202 (death caused by reckless, alternatively by careless, driving).

[222](2000) 1 V.R. 58 at [45].

[223]The footnotes include, in addition to citations, a reference to Van Den Hoek v. R. (1986) 161 C.L.R. 158 at 161-163. See also, because of its affinity with the present case, R. v. Rehavi [1999] 2 Qd R. 640 at 644-648.

The law is less well settled in cases other than homicide. The leading English case is R. v. Maxwell[224], where the defendant was charged with robbery and the alternative verdict would have been burglary. His appeal against conviction was dismissed by the Court of Appeal, whose decision was affirmed by the House of Lords, but it was recognised that there were cases other than cases of homicide where a judge would be obliged to leave a lesser alternative to the jury in order to guard against two dangers, one being that, faced with a false choice between conviction or acquittal of the main offence and nothing else they would acquit the accused altogether when he should have been convicted of the alternative offence and the other being that, faced with the same false choice, they would convict the accused of the more serious offence rather than let him get off scot-free for what was, on any view, serious misconduct.
[224][1988] 1 W.L.R. 1265 (C.A.); [1990] 1 W.L.R. 401 (H.L.).

A measure of support for the English position, expressly or by implication, is to be found in the judgments of the South Australian Court of Criminal Appeal in Benbolt v. R.[225], the Queensland Court of Appeal R. v. Rehavi[226] and the majority of the High Court in Gilbert v. R.[227], but scepticism has been expressed by the New South Wales Court of Criminal Appeal in R. v. Elfar[228]. As Sperling, J. said in the latter case[229], these are fundamental matters. Fortunately, it is unnecessary to resolve all of them in order to decide the present case. There is certainly no question of a “cascade of lesser offences”. All that is in issue is the relatively common situation of alternative verdicts predicated on injury where the offences charged predicate serious injury. It is the shift in the course of the trial to the possibility that the jury might convict on the combination of injuries apart from the stab wound that made it likely that a direction about such alternative verdicts would be required. The position would have been different if the choice had remained between the stab wound on its own and all the injuries including the stab wound.
[225](1993) 67 A.Crim.R. 11 in the judgments of King, C.J. (dissenting) and Duggan, J.
[226][1999] 2 Qd R. 640.
[227](2000) 201 C.L.R. 414, especially at [13]–[20] per Gleeson, C.J. and Gummow, J. and [90]-[103] per Callinan, J.
[228](2000) 115 A.Crim.R. 64.
[229]At [52].

Counsel for the applicant at the trial accepted that the injuries other than the stab wound could amount to serious injury, but he did not concede that they would do so. In my opinion that emerges clearly from the parts of the transcript that I have already set out. I reject Miss Sexton’s submission to the contrary. It should also be noticed that counsel submitted that, if the injuries apart from the stab wound did amount to serious injury, they would “sit at the lower end of the range” and that his Honour took pains to instruct the jury as to the meaning of “serious injury”. As the learned presiding judge pointed out in the course of the hearing, that would have been unnecessary if it had been common ground that, on any view, the element of serious injury was made out.

The Crown case was not so strong that the jury were bound to conclude that the applicant was responsible, by concert or aiding and abetting, for the stab wound.[230] They may have been persuaded, to the requisite standard, only that the applicant agreed to bash and humiliate the victim by cutting her hair off and that the applicant’s aiding and abetting were similarly limited.[231] In that event they would have had to consider whether the injuries apart from the stab wound constituted serious injury. It is not clear that they would have answered that question in favour of the Crown. In the form in which the case was ultimately left to the jury it was not, or was no longer, an “all or nothing” case. It stood in contrast with one where the injury on which the Crown relies is a serious injury on any view. The argument on which counsel relied in addressing the jury was that the applicant was not present[232], but that does not mean that serious injury was conceded and the only issue was her participation.[233] It was obviously prudent for counsel to leave the topic of serious injury to the judge.
[230]The judge sentenced the applicant, and Carter and Rogers, on the basis that “it was not in their contemplation that scissors should be used”.
[231]Concert and aiding and abetting were the only ways in which the Crown put its case. No reliance was placed on common design or considerations of the kind discussed in McAuliffe v. R. (1995) 183 C.L.R. 108 and R. v. Powell [1999] 1 A.C. 1.
[232]That was put to Oakley in cross-examination. None of the defendants gave evidence.
[233]Compare R. v. Maxwell [1990] 1 W.L.R. 401 at 407B.

Both the dangers adverted to in R. v. Maxwell were present.[234] In the light of the verdict, the relevant danger for this Court is that the jury convicted the applicant on count 1 because they did not know that it was open to them to convict her of intentionally causing injury. Miss Sexton submitted that we could have more confidence that the jury performed their duty conscientiously because they did not convict the applicant on count 2; but, if they were satisfied of intention as opposed to recklessness, they had no occasion to consider that count, and they were allowed to believe that they faced an “all or nothing” choice on count 1. It is true that, if the jury dispassionately applied the directions the judge had given them about the meaning of “serious injury”, which are not criticised, they could not have wrongly convicted the applicant; but in Gilbert’s case the majority preferred the view that, human nature being what it is, a jury may be deflected from their task, in some cases, by the presentation of a false alternative between conviction of a major offence and complete acquittal.[235] Moreover, it is arguable that such a jury need not act in conscious dereliction of duty. A mind faced with an unpalatable alternative is under psychological pressure to come to a conclusion that avoids it.
[234]See also R. v. Fairbanks at 1205-1206.
[235]See especially [13], [16] and [17] per Gleeson, C.J. and Gummow, J. and [101] per Callinan, J.

It is not open to us, in the light of the majority judgments in Gilbert’s case, to confine the duty of the judge, or the possibility of a miscarriage, to cases where the alternative verdict would amount in substance to confession and avoidance[236] and it is too late for an intermediate appellate court to confine that duty or that possibility

to cases of homicide[237].
[236]See Gilbert’s case at [26] per McHugh, J. and [50] per Hayne, J., but contrast what was said by Gleeson, C.J. and Gummow, J. at [9]-[11]. Even more importantly, Gilbert’s case was not one of confession and avoidance, but it was held that manslaughter should have been left to the jury.
[237]See Benbolt v. R., especially in the judgment of King, C.J. at 16–17 and Duggan, J. at 28-29, R. v. Rehavi at 644 lines 45-47 and R. v. Elfar at [5]. That does not mean that every alternative verdict is like an alternative verdict of manslaughter. The proposition rejected in R. v. Elfar – see [4], [28] and [49] – was far too wide. See also the observation of Sperling, J. at [51].

Once the shift that I have described took place, it was in the interests of justice, having regard to the evidence against the applicant, that the jury be alerted to the possibility of a lesser verdict on each count. As it happens, that possibility was expressly denied, for in the course of explaining the meaning of “serious injury” his Honour said:

“You should be aware that for this purpose there are only two classes of injury, namely, injury and serious injury. Another section of the Crimes Act deals with inflicting injury, but these two counts deal with serious injury. There are no other classes such as very serious injury or extreme injury, there is only those two categories."

The omission to tell the jury that they could convict the applicant of an offence against s.18 deprived her, on the facts of this case, of a chance of acquittal that was fairly open on the two counts that pleaded serious injury.

For these reasons I would grant leave to appeal against conviction, allow the appeal, quash the conviction and direct a new trial of the applicant to be had.

Postscript

In the light of the reasons for judgment written by Ormiston, J.A., I wish to emphasize three points, or groups of points, most of which will be apparent from what I have already written. First, I should like to emphasize, without elaboration, the point made in the last two sentences of [111]. I venture to suggest that it is consistent with, and may be another way of expressing, the point made in the passages from Gilbert’s case cited in fn. 235.

Secondly, I do not consider that every alternative verdict must be left to a jury. The answer to the question whether any such verdict should be left depends on all the circumstances, including the dictates of the public interest, fairness to the

accused, the course of the trial and the scope for forensic judgment on the part of counsel. The test is what justice requires in the particular case. In this case the issue is whether the two alternatives of intentionally causing injury and recklessly causing injury (not other offences) should have been left in the case of the applicant, the evidence against whom was significantly different from that against the alleged co-offenders.

Thirdly, the circumstances of the present case were unusual. The need, as I perceive it, for the judge to tell the jury about the two alternative verdicts (and only those) arose because of the shift that I have described. No such direction would have been needed had the case remained as the Crown had opened it. There is also the point mentioned in the last sentence of [105]. In a different case, much of what Ormiston, J.A. has written would be directly apposite, but I respectfully differ from his Honour in this case.

BATT, J.A.:

I agree with Callaway, J.A. This case was, in my opinion, one where the state of the evidence and the course of proceedings, as described by his Honour, were such that the interests of justice required the judge to leave to the jury the possibility of a verdict under one or other limb of s.18. I emphasise that my decision turns on the particular facts of this case, not upon some general proposition that all possible alternative verdicts must always be left to the jury whether or not defence counsel sought that at trial.

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[2001] VSCA 153

7 September 2001